Scottish High Court of Justiciary Decisons

At advising on 23rd October 1992:

LORD JUSTICE-CLERK (Ross)—The circumstances which have given rise to this reference in terms of sec. 263A of the Criminal Procedure (Scotland) Act 1975 are that a person X was indicted for trial in the High Court of Justiciary at Glasgow on charges of (1) assault with intent to rob and attempted robbery; and (2) contravention of the Firearms Act 1968, sec. 17 (2) and (5). The case proceeded to trial at the sitting which began on 17th February 1992. The jury found each of the charges on the indictment not proven by a majority.

The first charge on the indictment was in the following terms:

"(1) On 4th November 1991 in the premises known as Pablo's Clothing Baby wear, 1116 Maryhill Road, Glasgow, you did assault Marie Carberry or Daly, proprietrix there, and Tiffany Sali Rubin, employee there, present an imitation handgun at them, place them in a state of fear and alarm for their safety, demand money, demand that they lie on the ground, all with intent to rob and you did attempt to rob them."

In the course of the trial Mrs Daly gave evidence that in the late afternoon of 4th November 1991 she was standing behind part of the counter in the shop premises referred to in charge (1) when the door was thrown open and X entered the shop and presented a handgun at her. He was holding the gun in both hands with his arms outstretched in front of him. He said words to the effect, "Get the money out of the till and lay on the floor." At this time Tiffany Sali Rubin was crouched down behind a different part of the counter putting a jacket on to a small boy who was there with his mother. Miss Rubin stood up to see what was happening and X, seeing her, ran out of the door.

In the course of the trial X admitted entering the premises mentioned in charge (1), presenting an imitation firearm at the complainers in charge (1), stating, "This is a hold-up", ordering them to get down on the floor and demanding money from them. He accepted that they were alarmed by his actings. His defence was that his actions were a joke, that he had no evil intent to assault or rob the complainers and that, accordingly, his actions lacked the criminal intent necessary for the commission of the crimes libelled.

Mrs Daly in her evidence stated that she did not take what the accused did as being a joke and that, if she had been in the shop by herself she would probably have handed over the money to him. She said that she just froze and felt terrible. Miss Rubin spoke to having stood up from behind the counter and having seen X pointing a gun at Mrs Daly. She said he was standing with his arms extended in front of him and the gun between his hands. She confirmed that he had said the words attributed to him by Mrs Daly. Miss Rubin stated that X sounded serious and she took him seriously. She said that she did not find the incident funny and she took it as a serious incident, she added, "I got a hell of a fright."

The advocate-depute in her address to the jury submitted that it was not a relevant defence to an assault charge that the actions constituting the assault were carried out as a joke. Counsel for X in his address to the jury submitted that if the jury accepted X's evidence that the actions were carried out as a joke, the necessary evil intent for the commission of the crime of assault would be lacking and X would require to be acquitted.

The trial judge directed the jury that assault is an attack on the person of another with evil intent, that whether or not there was evil intent was at the heart of the case, that X's evidence was that his actions were a joke and there was no evil intent, and that, if the jury believed X's evidence that he had no evil intent, they would acquit him.

In this reference it is submitted on behalf of the Lord Advocate that the trial judge ought to have directed the jury in relation to charge (1) that the accused admitted actions which constituted the crime of assault; that the necessary evil intent was inevitably to be inferred from the deliberate commission of the acts themselves; that it was not a relevant defence that the said acts were committed as a joke; and that, if the jury accepted that the said acts were committed as a joke, the jury, if otherwise satisfied as to the accused's guilt, were bound to convict.

The Lord Advocate has accordingly referred to this court for its opinion the following question: [his Lordship quoted the terms thereof as set out supra and thereafter continued].

At the hearing the advocate-depute submitted that the foregoing question should be answered in the negative. Counsel for X submitted that the question should be answered in the positive.

In presenting his submissions, the advocate-depute referred in detail to the evidence given by Mrs Daly, Miss Rubin and the accused. However, I am satisfied that what I have already said regarding their evidence is an accurate summary of it. The advocate-depute also referred to the transcript of the speech by the advocate-depute and the speech by defence counsel. Again what I have already said constitutes a sufficient summary of these speeches.

So far as the judge's charge is concerned, the following is the relevant passage:

"The crimes set out in this first charge are those of assault and attempted robbery. What is an assault? Any attack on the person of another with evil intent is an assault. The attack has to be deliberately aimed or directed at the other and intended to harm. Harm, of course, may not be physical on the body. The attack with that intent has to be proved beyond reasonable doubt by corroborated evidence and, as I have indicated to you a moment or two ago, it is not necessary for every detail of the assault to be subject to corroborated evidence. With assault you may consider the question of acting in self-defence or an action in support and in this case, of course, you may consider if there was a threat which is not intended to cause harm—a joke, a prank—and that of course, as you will appreciate, is at the heart of this case because—let me repeat again the direction I gave you about what is an assault—an attack on the person of another with evil intent and whether or not there was evil intent is at the heart of this case. The Crown maintain that there was such evil intent on the part of the accused and the accused has told you that he had no such evil intent. It was a joke—as his counsel said to him ‘a gey sick joke’ and he agreed with that, that it was a sick joke—there was no evil intent and therefore assault would not be established. How do you determine that? Of course it will depend upon your appreciation of the evidence and the evidence which the accused has given, the evidence that was given by the two ladies in the shop, the evidence they gave of their reaction to what happened. It is true you can't look into a man's mind. A man may express, of course, what he thinks was in his own mind and if you believe the accused in this case that he had no such evil intent you would acquit him. You may, however, on the other hand, wish to judge the actings objectively of how the other people appreciated it if you are not satisfied of his own explanation of his intent—that is to say, how other people looked at what he did, what he intended to do."

The trial judge went on in his charge to deal with intent to rob and advised the jury that the two crimes in the charge were interacted with each other and that they stood together or fell together.

In his report the trial judge states that X admitted to the police when he attended voluntarily at the police station on the evening of the date libelled, that he had gone into the shop, that he had said:

"‘Right. Get down on the floor and that.’ He had clicked the gun twice. ‘I just kidded on it was a hold-up. It was a laugh. I wouldn't have taken the money.’"

He told the police it was only a child's gun; that it was in a house in Ruchill and he would take the police to it. The police went to that house and recovered the gun, which became Label Production No. 1.

The advocate-depute supported the submission which is contained in the petition to this court. He maintained that the trial judge had confused intent with motive, and that motive was irrelevant to criminal responsibility. He contended that if a person carries out an actus reus with mens rea, he is guilty of the crime and that his motive is irrelevant to the question of guilt. The advocate-depute drew attention to H.M. Advocate v. Edmiston (1886) 5 Irv. 219, where it was held that the writing and sending of threatening letters was a crime, whatever may have been the motive. He contended that the same principle should be applied here. In charging the jury in that case the Lord Justice-Clerk said, at pp. 222–223:

"The writing or sending of letters expressed in these terms is in itself in the eye of the law a crime, no matter what the motive. Supposing it to be perfectly true that all that was designed was frolic, the writing and sending of such letters as these would still be a crime, and the counsel for the prisoner seriously misunderstood the true and proper meaning of those words which express the quality of the act charged against the pannel, that she did wickedly and feloniously write and send these letters. Every crime is wicked and felonious, and the moment you arrive at the conclusion that the act charged against the prisoner is a crime, that of itself is sufficient proof of wicked and felonious intent. The words mean no more than that the act is criminal. If the act is shown to be criminal, from the nature of the act itself there is no necessity for any proof of malice as regards any of the ordinary crimes."

The advocate-depute submitted that the same principles should be applied to the present case and that the trial judge ought to have directed the jury that it was no defence to say that it had all been a joke. He also referred to Ralston v. H.M. Advocate 1989 S.L.T. 474. In that case the appellant maintained that the sheriff had erred in giving directions to the jury to the effect that even if they thought that the appellant's motives were blameless, none the less they must convict him. In the course of my opinion I stated, at p. 476:

"Whether or not any particular acts amount to a breach of the peace is a question of fact depending upon the particular circumstances of the case. Since it is a question of fact, it was for the jury to determine that matter. Whatever the appellant's motives may have been, it was for the jury to decide on the evidence whether his actings amounted to a breach of the peace."

The advocate-depute maintained that in the present case the actions of X had been deliberate and that, accordingly, they constituted the crime of assault. The advocate-depute recognised that in some areas of human activity difficult situations might arise. He submitted that to bring another person down by means of a rugby tackle would not constitute assault in the course of a game of rugby but that it would be criminal if the person tackled was a stranger in a public street. He also maintained that between friends no crime would be committed if one friend perpetrated a joke upon another. The situation, he submitted, was different where strangers were involved. At the end of the day his submission was that the crime of assault was committed once it was plain that the appellant was acting deliberately. He contended that there was a risk that the direction given by the trial judge could become a "Robbers' Charter".

Counsel for X on the other hand contended that the directions given by the trial judge were sound and proper. He submitted that it was necessary for the jury to consider all the circumstances before they could determine whether there had been evil intent or dole. He maintained that the accused's assertion that it was a joke was one factor which had to be taken into account in the overall evaluation of the existence of dole; if the jury accepted that the factor negatived evil intent, they were entitled to acquit. He submitted that the assertion that it was a joke was not relevant to the issue of motive; it was a factor which required to be considered when the jury determined whether or not there had been evil intent. All that was decided in H.M. Advocate v. Edmiston was that the prosecutor was not required to establish a motive for the crime (Macdonald's Criminal Law (5th edn.), p. 1). He also referred to Atkinson v. H.M. Advocate 1987 S.C.C.R. 534 and Young v. McGlennan 1991 S.C.C.R. 738. Counsel for X further submitted that it was not the correct approach to hold that the accused's assertion that it was a joke came too late, that is, after the assault had been committed. He maintained that there was no justification for any cut-off point in evaluating the overall circumstances of the incident. It was necessary to look at the whole circumstances when determining whether or not the necessary evil intent was present.

In my opinion, the accused's assertion that it was a joke means no more than that that was his motive or ulterior intention in acting as he did. It has often been said that evil intention is of the essence of assault (Macdonald's Criminal Law, p. 115). But what that means is that assault cannot be committed accidentally or recklessly or negligently (Gordon's Criminal Law (2nd edn.), para. 29–30). In the present case, it is plain that when the accused entered the shop, presented the handgun at Mrs Daly and uttered the words which he did, he was acting deliberately. That being so, in my opinion, he had the necessary intent for his actions to amount to assault, and his motive for acting as he did was irrelevant. I agree with the advocate-depute that the principle laid down by the Lord Justice-Clerk in H.M. Advocate v. Edmiston would apply to the present case and that, even if the accused was believed when he stated it was a joke, his acting as he did would still constitute the crime of assault.

The advocate-depute raised the question of there being possible difficult situations. I agree with him that it would be a crime to rugby-tackle a stranger on the public street, although a rugby tackle in the course of a game of rugby would not amount to an assault. The reason for that is that for conduct in a sporting game to be criminal, it would require to be shown to be outwith the normal scope of the sport (Butcher v. Jessop 1989 J.C. 55 at pp. 64–65). As regards a joke between friends, if a friend, for example, deliberately tripped up his companion as a joke, the crime of assault would still have been committed although, if it took place in the context of joking between friends, any prosecution would be unlikely.

I am not persuaded that the approach of counsel for X is a sound one. It is clear that even where conduct has taken place against the background of good-natured joking, an assault may be committed if an accused has acted deliberately when he has carried out an attack upon another (Young v. McGlennan ). It is well established that an assault may be constituted by threatening gestures sufficient to produce alarm (Atkinson v. H.M. Advocate ). The actings of the accused in the present case included threatening gestures and produced fear and alarm in the two complainers.

When he gave his evidence at the trial, X stated that after he had told the complainer Mrs Daly that it was a hold-up, that she should get the money and get down on the floor, he started laughing and stated, "I'm only kidding" as he left the shop. Neither of the complainers spoke to this; they did not say that he started laughing or that he said, "I'm only kidding." On the other hand, the jury may have accepted X's evidence in this regard, but even if they did, I am I satisfied that by the time he claims to have started laughing, the crime of assault had been committed; his laughing and statement to the effect that it was a joke came too late to alter the quality of his conduct.

The submissions on behalf of the Lord Advocate contained in the petition relate to the crime of assault only. The court was not invited to determine whether the assertion that the acts were committed as a joke would be a relevant defence to the charge that the assault had been with intent to rob and that X had attempted to rob the complainers. The trial judge had directed the jury that the two crimes of assault and attempted robbery stood or fell together. I reserve my opinion upon the question of whether the claim that it was a joke would be a relevant defence to the crime of attempted robbery and whether in the circumstances the jury were entitled to hold that the charge of attempted robbery was not proven. I am, however, satisfied, that insofar as the question in the petition relates to the crime of assault, the question falls to be answered in the negative.

LORD COWIE —This is a petition by the Lord Advocate to the High Court of Justiciary under the provisions of sec. 263A of the Criminal Procedure (Scotland) Act 1975 for the opinion of the court on a point of law which arose in the course of a trial at the High Court in Glasgow.

In that trial the pannel was indicted on charges of (1) assault with intent to rob and attempted robbery; and (2) a contravention of the Firearms Act 1968, sec. 17 (2) and (5). In the end of the day the jury found both charges not proven.

During the course of the evidence two Crown witnesses stated that in the late afternoon of 4th November 1991 the pannel entered the shop premises where they were working, presented a handgun at one of them and said words to the effect, "Get the money out of the till and lay on the floor." The other witness, who had been crouched below the level of the counter putting a jacket on a small boy who had come into the shop with his mother, stood up at this point and, on seeing her, the pannel turned and ran out of the shop.

The pannel gave evidence on his own behalf and admitted entering the shop premises, presenting an imitation firearm at the first witness and stating, "This is a hold-up." He also admitted ordering the witness to get down on the floor and demanding money from her. He then said that he started laughing and that he said, "I'm only kidding." He went on to say that he then turned and ran away.

Later in his evidence he said that he accepted that the Crown witnesses would have been alarmed by his actings but that, "It was just a joke" and that he had had no intention of going into the shop to assault and rob the occupants.

When the advocate-depute came to address the jury, she submitted that it was not a relevant defence to a crime of assault to say that the actions constituting the assault were carried out as a joke.

On the other hand counsel for the pannel submitted to the jury that if they accepted the pannel's evidence that what he had done was a joke, then there was none of the evil intent present which was necessary to establish the crime of assault and that they would require to acquit the pannel of the charges libelled.

The trial judge directed the jury that assault is any attack on the person of another with evil intent; that whether or not there was evil intent was at the heart of the instant case; that the pannel's evidence was that his actions were a joke and that there was no evil intent; and that, if the jury believed the pannel's evidence that he had no evil intent, they should acquit him. As stated above the jury proceeded to find the charges not proven.

The Lord Advocate has taken issue with the terms of the directions which the trial judge gave in this case.

In this petition it was submitted on his behalf that the trial judge ought to have directed the jury, in relation to the first charge, that the pannel's admitted actions constituted the crime of assault; that the necessary evil intent was inevitably to be inferred from the deliberate commission of the acts themselves; that it was not a relevant defence that the said acts were committed as a joke; and that, if the jury accepted that the said acts were committed as a joke, the jury, if otherwise satisfied as to the appellant's guilt, were bound to convict.

In these circumstances the Lord Advocate poses the following question of law for the opinion of the court: [his Lordship quoted the terms thereof as set out supra and continued thereafter].

Notwithstanding the wide terms of the question, I understood it to be directed only to the part of the first charge libelling assault. That was the basis on which both the advocate-depute and counsel who represented the pannel presented their arguments, and I shall approach the matter in the same way. In elaboration of the submissions outlined above the advocate-depute maintained that once a crime has been committed, the motive is irrelevant. In the present case the crime of assault had been committed before any question of it being a joke had arisen, and since that was the motive for the offence it could not be a defence to the charge.

In that connection he referred to the case of H.M. Advocate v. Edmiston (1886) 5 Irv. 219 in which a woman had been charged with writing and sending threatening letters, having "wickedly and feloniously" written or caused to be written and sent or caused to be sent a threatening letter to two separate individuals. The defence was that although she had written and sent the letters, the prosecution had not proved that they were sent and delivered "wickedly and feloniously" and that, on the contrary, the pannel had made it clear that the letters were written as a frolic. Accordingly it was submitted that what was done was done without that intention and without that disposition of mind necessary to produce guilt.

The Lord Justice-Clerk in charging the jury said this:

"The writing or sending of letters expressed in these terms is in itself in the eye of the law a crime, no matter what the motive. Supposing it to be perfectly true that all that was designed was frolic, the writing and sending of such letters as these would still be a crime, and the counsel for the prisoner seriously misunderstood the true and proper meaning of those words which express the quality of the act charged against the pannel, that she did wickedly and feloniously write and send these letters."

It was on that basis that the advocate-depute in the present case argued that once the crime of assault was established, it was no defence for the pannel to say that what he did was a joke. The advocate-depute maintained that even if the pannel's evidence that he laughed and said he was only kidding before he ran away was accepted by the jury, that was too late to be a defence to the charge because the crime had already been committed by that time and the motive was irrelevant.

Counsel for the pannel on the other hand argued that that was too narrow an approach. He submitted that since evil intent was of the essence of the crime of assault, a jury were entitled to consider all the circumstances surrounding the incident in deciding whether evil intent had been established. In particular he submitted that the trial judge was justified in leaving to the jury the question whether the pannel's actings had indeed been a joke.

In my opinion, however, the submission of counsel for the pannel is not correct in the present case. The point is a short one and it depends upon what is meant by the words "evil intent" insofar as they form an essential element in the crime of assault. In my opinion the meaning of the words in the context of this offence is not to be obtained from a wide review of the circumstances surrounding the incident but is to be derived directly from the quality of the act, in the first place, and, in the second place, whether that act was committed deliberately as opposed to carelessly, recklessly or negligently. It is the quality of the act itself, assuming that there was no justification for it, which must be considered in deciding whether it was evil. That was the position in the case of Edmiston where the Lord Justice-Clerk indicated that it was the quality of the act which justified the description of the writing and sending of the threatening letters as "wicked and felonious". Having established that the act is an evil one, all that is then required to constitute the crime of assault is that that act was done deliberately and not carelessly, recklessly or negligently.

Accordingly, in my opinion, the approach of counsel for the pannel was too wide and, in relation to the facts, is not appropriate in deciding whether evil intent had been established in the present case.

The evil intent was established when the pannel deliberately and without justification pointed the handgun at the person in the shop premises and said, "Get the money out of the till and lay on the floor." At that point the crime of assault was established and the subsequent actions suggesting that it was all a joke were wholly irrelevant as a defence to that crime. For these reasons I have no hesitation in saying that, in the present case, the trial judge misdirected the jury and that he ought to have directed them along the lines set out in para. (2) of the petition.

Accordingly, I would answer the question posed for our opinion in the negative.

LORD SUTHERLAND —In this petition the Lord Advocate seeks the opinion of the court on a matter of law arising from a charge given to the jury in a trial in the High Court in Glasgow. The charges faced by the pannel were charges of assault with intent to rob and attempted robbery and a contravention of sec. 17 (2) and (5) of the Firearms Act 1968.

The material facts which were not seriously in dispute were that the pannel entered a shop in Glasgow and pointed a handgun at the shop assistant behind the counter. He said words to the effect, "Lie on the floor and get your money out of the till." At this point another person in the shop showed herself to the pannel who then left the shop. The pannel's defence was that his actions were a joke and that he had no evil intent to assault or rob the complainers. The advocate-depute at the trial, in addressing the jury, submitted that it was not a relevant defence to an assault charge that the actions constituting the assault were carried out as a joke. Counsel for the pannel, in addressing the jury, submitted that if the jury accepted the pannel's evidence that his actions were carried out as a joke, the necessary evil intent for the commission of the crime of assault would be lacking. The trial judge directed the jury that any attack on the person of another with evil intent is an assault and that the attack has to be deliberately aimed or directed at the other and intended to harm. He went on to say:

"With assault you may consider the question of acting in self-defence or an action in support and in this case, of course, you may consider if there was a threat which is not intended to cause harm—a joke, a prank...."

In the petition it is submitted that the trial judge ought to have directed the jury in relation to charge (1) that the accused's admitted actions constituted the crime of assault; that the necessary evil intent was inevitably to be inferred from the deliberate commission of the acts themselves; that it was not a relevant defence that the said acts were committed as a joke; and that, if the jury accepted that the said acts were committed as a joke, the jury, if otherwise satisfied as to the accused's guilt, were bound to convict. It will be noted that the submission relates to the crime of assault and does not specifically deal with the aggravation of assault, namely with intent to rob or the additional crime of attempted robbery. The point of law, however, which is referred to the court is: [his Lordship quoted the terms thereof as set out supra and continued thereafter].

In seeking to have the question of law answered in the negative, the advocate-depute submitted that the judge should have directed that the necessary intent inevitably has to be inferred from deliberate acts. There was no doubt about the actings of the pannel in that he pointed a gun at the complainer and uttered threatening words. It was submitted that intent involving mens rea was confused with motive by the trial judge and this led him to a misdirection. If the actus reus is accompanied by the requisite mens rea then motive is irrelevant. The advocate-depute referred to the cases of H.M. Advocate v. Edmiston (1886) 5 Irv. 219 and Ralston v. H.M. Advocate 1989 S.L.T. 474. These cases make it clear that where a criminal act has been carried out, it is quite immaterial what was the motive of the perpetrator. Where, as here, the actings of the pannel were quite deliberate and constituted a criminal act, there is no room for a defence based on the proposition that his motive was merely to perform some practical joke. Counsel for the pannel contended that the direction given by the trial judge was the usual direction in cases of assault and was entirely appropriate and proper. What had to be looked at were both the actus reus and the mens reaand in deciding whether the Crown had established the necessary mens rea the whole circumstances of the alleged crime had to be looked at. The jury would have to be satisfied that there was evil intent on the part of the pannel and, if the Crown failed to prove that evil intent, the pannel was entitled to be acquitted. If therefore the jury accepted that what the pannel did was by way of a joke and was without evil intent, the appropriate verdict would be one of acquittal and the trial judge's direction on the matter was correct. The Crown's approach was wrong in equiparating a joke with motive as the proper test is whether or not the pannel's intention was an evil one or was merely in jest.

The words "evil intent" have an eminently respectable pedigree, being used by Hume when he describes dole or mens reaas "that corrupt and evil intention which is essential to the guilt of any crime". It is, however, perfectly possible to have an intention to perform particular acts without necessarily intending evil consequences from those acts. The use of the word "intention" may therefore be confusing in itself. If intention means motive then plainly it is irrelevant. If, on the other hand, intention means nothing more than wilful, intentional or deliberate as opposed to accidental, careless or even reckless, then plainly it is relevant in that a criminal act cannot be performed other than deliberately. This latter view appears to commend itself to Macdonald, Criminal Law (5th edn.), p. 115 and Gordon, Criminal Law (2nd edn.), para. 29–30. If, therefore, a person deliberately performs an act which would in itself be criminal then both the actus reus and the mens rea coexist and a crime has been committed. The pointing of a gun at a shop assistant accompanied by words such as those used by the pannel would undoubtedly constitute the actus reus of the crime of assault and if these things are done deliberately and intentionally, as they were done here, the mens rea is also, in my opinion, established. The pannel undoubtedly knew what he was doing and knew that what he did would be likely to cause alarm and distress. That is sufficient to constitute the crime of assault and his motive for doing it was quite irrelevant. I am therefore satisfied that at least as far as the crime of assault is concerned the trial judge misdirected the jury in leaving open to them consideration of the alleged defence that it was all a joke.

In his submissions the advocate-depute did not seek to distinguish between assault, assault with intent to rob and attempted robbery insofar as he maintained that the alleged defence was irrelevant. Counsel for the pannel also made no distinction between these three separate aspects of the case and consequently we did not hear any argument presented as to any possible distinction to be made between the three. While I am satisfied that the necessary mens rea was established for the crime of assault, I would wish to hear further argument, particularly in relation to the specific aggravation of assault with intent to rob, before deciding that the sort of defence put forward in the present case was irrelevant. The submissions in para. (2) of the petition relate only to the crime of assault. I would prefer therefore to reserve my opinion on the question of whether or not a defence such as was put forward in the present case would be relevant to any other crime charged. I would therefore answer the question posed in the petition in the negative, subject to deletion of the word "charges" and the substitution of the words "charge of assault".