30 J ONES V. H. M.

ADVOCATE (Lord J ustice-Clerk) 1975

cannot say that natural justice has been offended. We shall accordingly
refuse the application.
THE COURT refused the application.
Allan M'Dougall& Co., S.S.C.The Grown Agent.
SMART v. H. M. ADVOCATE
No. 6. L.J .-C. Wheatley,
J an. 24, 1975. Lords Leechman, Thomson.
WILLIAM SMART, Applicant.Smith.
HER MAJ ESTY'S ADVOCATE, Respondent.Morton, Q.C., A.-D.
CrimeAssaultEvidence that com/plainer consented to fight with the panel
Whether consent a defence.
At his trial on indictment charging assault the panel substantially
admitted the acts libelled as constituting the assault but gave evidence
that he and the complainer had agreed to have a "square go." The
panel lodged a special defence that he was acting in self-defence he
having been assaulted by the complainer. At the conclusion of the
evidence the panel's solicitor moved the Sheriff to direct the jury to
find the panel not guilty in respect that the evidence disclosed that the
panel and the complainer had willingly engaged in a fight with one
another and that therefore the crime of assault had not been com-
mitted. The Sheriff directed the jury, inter alia, that there was no
relevant evidence to support the special defence and that even if the
jury found that the complainer had agreed to take part in a fight with
the panel, consent was not a defence to the crime libelled.
Held that there had been no misdirection because an attack upon a
person made with the intent to injure and do bodily harm is a criminal
assault even where the person attacked was willing to take the risk of
that attack; and appeal refused.
Observed that "i t is in the public interest that it should be decided
and made known that consent to a 'square go' is not a defence to a
charge of assault based on that agreed combat."
Statement in Gordon's Criminal Law, 1st ed. at page 774 dis-
approved.
WIXLIAM SMART was charged on an indictment which set forth that he
assaulted Isaac Wilkie by kicking him on the private parts, punching and
kicking him about the head and body, pulling out his hair and biting him
on the left arm to his injury.
The panel was tried by Sheriff (M'Lean) and a jury at Paisley on 4th October
1974.
The solicitor for the panel, at the conclusion of the evidence, moved the
Court to direct the jury to find the panel not guilty in respect that the case
was not a case of assault but a case of two men willingly engaged in a fight
with one another to which they had consented and that therefore no crime
of assault had been committed. The Sheriff declined to do so and charged
the jury, inter alia, in the following terms:
" . . . The essence of the crime of assault is that there should be in the
mind of the assailant a malicious and wicked intention to injure the victim ...
J . C. SMART V. H. M. ADVOCATE 31
"Now something has been said about consent. I direct you in law that
consentif you in fact were to find that Wilkie had consented in some way
to this assaultthen that would not be a defence . . . if the act is criminal
it cannot lose its criminal character because the victim consented, and the
reason is not far to seek. I t is that the essence of the crime of assault lies in
the mind of the assailant and not in the mind of the victim . . .
"Now, ladies and gentlemen, what you have to decide is whether or not
the accused did these acts and secondly whether or not he had a malicious
and wicked intention to injure Mr Wilkie when he did so. If two persons
join in going to a park to have what is called a 'square go' with the inten-
tion of inflicting injury on each other, then each can be quite competently
charged with the crime of assault because the essence of what they have
done to each other is to cause injury with the intention of doing so."
I n relation to the special defence the Sheriff said:"A plea of self-
defence has been lodged but there is no relevant evidence to support self-
defence, so you put the question of self-defence out of your minds."
The jury, by a majority, returned a verdict of guilty as libelled. The panel
was sentenced to detention for three months.
The panel applied for leave to appeal against conviction on the ground
that the Sheriff had misdirected the jury in respect of the special defence of
self-defence. Subsequently the panel was given leave to put forward an
additional ground of appeal that the trial judge misdirected the jury by
directing them that consent was no defence in the circumstances.
The application for leave to appeal was heard before the High Court of
J usticiary on 24th J anuary 1975.
Argued for the applicant;Consent was a defence to the crime libelled
and the Sheriff ought to have directed the jury accordingly. The complainer
had agreed to a "square go," i.e., a fight without weapons. The risk of
injury had been accepted by the complainer and he was in principle in no
different a position from a boxer in a boxing match. Counsel referred to
Gordon, Criminal Law at page 773 and adopted the author's submission on
page 774 that consent was a defence to a charge of assault. The application
should be granted and the conviction quashed.
Argued for the respondent;The crime of assault required evil intent:
Macdonald, Criminal Law, 5th ed. at page 115. The victim's state of
mind was not relevant. The complainer could equally have been guilty
of a charge of assault if it had been proved that he had consented to fight
with the applicant. The application should be refused.
The opinion of the Court was delivered by the Lord J ustice-Clerk on 24th
J anuary 1975.
LORD J USTI CE-GLEBE (Wheatley).The applicant was found guilty by a
majority verdict of the jury of a charge of assault. The charge libelled
was that he assaulted Isaac Wilkie, kicked him on the private parts, punched
and kicked him about the head and body, pulled out his hair and bit him
on the left arm to his injury.
The argument in support of the application proceeded on the basis that
the applicant had invited Wilkie to have a "square go" and that Wilkie
consented to this. There was evidence, said to be disputed by the applicant,
that Wilkie had been invited on several occasions to have a "square go"
before he finally consented. I t is not necessary in our view to have regard
to this allegation to determine the issues canvassed before us.
Two lines of defence were submitted at the trial. The first was that since
Wilkie had consented to fight with the applicant the latter could not be
guilty of assault in respect of his actions in that combat by consent. The
32 SMABT V. H. M. ADVOCATE (Lord J ustice-Clerk) 1975
second was that since the applicant had tabled a special defence of self-
defence, that special defence should have gone to the jury. I n the course
of his charge to the jury the presiding sheriff refused to give effect to these
submissions. I n relation to the first point he said: "This is a charge of
assault and assault as the law defines it is an attack upon the person of
another whether it injures or not. I t has been said often by judges and it
is in my opinion certainly of the law that the essence of the crime of assault
is that there should be in the mind of the assailant a malicious and wicked
intention to injure the victim. You could not convict William Smart in this
case unless you were satisfied of two things and the first is that he did
impose these acts libelled, and you must be satisfied beyond reasonable
doubt. The second thing is that at the time in his mind there was a wicked
and malicious intention to injure.
"Now, something has been said about consent. I direct you in law that
consentif you in fact were to find that Wilkie had consented in some way
to this assault, then that would not be a defence which Mr Hamilton could
bring in aid of his client. Because, if the act is criminal, it cannot lose its
criminal character because the victim consented, and the reason is not far
to seek. I t is that the essence of the crime of assault lies in the mind of
the assailant and not in the mind of the victim. If we had in every case or
in cases such as these to go into what in fact the victim consented to, the
cases would never be done. You would have to find out whether they con-
sented to a choice of weapons; what degree of injury would the victim con-
sent to. He might, for example, consent to being punched on the nose but
not to have a bruise on his leg, so the situation here is a comparatively simple
one for you, ladies and gentlemen.
"Now, ladies and gentlemen, what you have to decide is whether or not
the accused did these acts and secondly whether or not he had a malicious
and wicked intention to injure Mr Wilkie when he did so. If two persons
join in going to a park to have what is called a 'square go' with the intention
of inflicting injury on each other, then each can be quite competently charged
with the crime of assault because the essence of what they have done to each
other is to cause injury with the intention of doing so." All that he said in
relation to the second point was this: "A plea of self-defence has been
lodged but there is no relevant evidence to support self-defence, so you put
the question of self-defence out of your minds." Normally it could only be
determined on the evidence whether such a direction was justified, but as
this case was presented it appeared that the self-defence founded on was
simply that the applicant was participating in an agreed-upon fight and
that anything he did was done either to get the better of his opponent or to
defend himself against the attack of his opponent. These arguments were
repeated by counsel for the applicant at the hearing of the application. For
support of his first contention, based on the parties' consent to fight, Mr
Smith said that there was a complete dearth of authority, and he relied
principally on a passage in Gordon's Criminal Law at page 774 where the
learned author says: "I f A and B decide to fight each other they cannot be
guilty of assaulting each other, so long as neither exceeds the degree of
violence consented to or permitted by law." The author then goes on to say:
"Where the assault does not involve another crime the position appears to
J . C. SMART V. H. M. ADVOCATE (Lord J ustice-Clerk) 33
be that consent is a good defence provided that not more than a certain
degree of injury is caused (cf. R. v. Donovan 1934 2 K.B. 498). What that
degree is is undecided and unknown. Consent is not a defence to the charge
of murder (H.M.A. v. Rutherford 1947 J .C. 1), and the ratio of EM.A. v.
Rutherford, that the attitude of the victim is irrelevant, was applied in the
unreported case of Ian Gordon Purvis (1964) to exclude a defence of consent
in a charge of an assault with a knife to the danger of the victim's life. But
it is submitted that consent is a defence to minor assaults whether inflicted
for sexual, sporting or other purposes." We have quoted these passages at
length because they represent in effect the argument presented by the
applicant's counsel. Leaving aside the question of what constitutes a minor
assault, the apparent contradiction in the two passages quoted, and whether
the ejusdem generis rule applies to his illustrations, we are of the opinion
that the conclusion which Professor Gordon reaches and the submission
which he makes are wrong.
An assault is an attack on the person of another. Evil intention is of the
essence of assault (Macdonald, Criminal Law, 5th ed., 115). This was
reiterated by Lord J ustice-Clerk Cooper (as he then was) in H.M.A. v.
Rutherford, 1947 J .C. 1 at 6. That is what the presiding sheriff said in the
present case in the passage in his charge which we have quoted. Lord Cooper
said that consent was not a defence in a case of murder or culpable homicide.
I n this he was following the view of Baron Hume in his treatise on Crimes,
Vol. 1, at page 230. This view was followed in Purves (High Court, Edin-
burgh, February 1964, unreported) in regard to an assault with a knife to
the danger of life. I s there any justification for applying this line of authority
to serious assaults but not to minor assaults ? I n our opinion there is not.
Apart from the obvious difficulty of knowing where to draw the line there is
nothing in principle to justify the distinction. If there is an attack on the
other person and it is done with evil intent, that is, intent to injure and do
bodily harm, then in our view the fact that the person attacked was willing
to undergo the risk of that attack does not prevent it from being the crime
of assault. If A touches B in a sexual manner and B consents to him doing
so (and there is nothing else involved which would constitute a crime under
statute or at Common Law) there is no assault because there is no evil
intention to attack the person of B. So too if persons engage in sporting
activities governed by rules, then, although some form of violence may be
involved within the rules, there is no assault because the intention is to
engage in the sporting activity and not evilly to do harm to the opponent.
But where the whole purpose of the exercise is to inflict physical damage on
the opponent in pursuance of a quarrel, then the evil intent is present, and
consent is elided. This view consists with the English view as expressed by
Swift J . in giving the judgment of the Court in R. v. Donovan [1934] 2 K.B.
498 at 506 et seq. This was recognised in the case of duelling when the inten-
tion of the participants was to kill the opponent, and we see no reason why
it should be different when the duellists have the evil intent of inflicting
physical injury on the opponent.
I n the circumstances of this case as explained to us we are of the opinion
that the sheriff was fully justified in directing the jury that there was no
relevant evidence to support the plea of self-defence. I t is accordingly
34 SMAET V. H. M. ADVOCATE (Lord J ustice-Clerk) 1975
unnecessary for us to consider the broader question of whether self-defence
could ever be a defence in the case of a combat which started by consent.
The applicant's counsel sought to invoke a further argument from the
civil law and submi tted that the maxi m volenti non fit injuria should appl y
to a case like this and result in an acquittal. I n our view, the reasons for
rejecting consent as a defence equally dispose of this submission. I t follows
that the criticisms of the directions in law given by the presiding sheriff
in the circumstances of this case are not well founded and that the applica-
tion must be refused.
Before parti ng with the case we wish to make one final observation. I t is
said that the consent was to have a "square go." There is no definition,
classical or otherwise, of the phrase, and it seems unlikely that any normal
person would consent to a fight which could legitimately involve what is
contained in the charge, but for the purposes of the argument we accepted
that Wilkie did so. We are only too aware of the prevalence of what is
alleged to be a "square go" in one form or another, often leading to serious
results. Accordingly, apart from the pri vate interests involved in thi s case,
it is in the public interest that it should be decided and made known that
consent to a " square go " is not a defence to a charge of assault based on that
agreed combat.
THE COURT refused the application.
Allan M'Dougall & Co., S.S.C.The Crown Agent.
M'RAE v. H. M. ADVOCATE
L.J .-C. Wheatl ey,
Lords Leechman, Thomson.
BAEON M' RA E, Applicant.Dowdall.
J OHN M'DOWAL L , Applicant.Kerrigan.
HE R MAJ ESTY 'S ADVOCATE, Respondent.Morton, Q.C., A.-D.
CrimeTheftEvidence-Recent possessionImmediate use of stolen item to
commit series of fraudsCriminative circumstanceRecent possession attribut-
able to all participating in the frauds.
Sufficiency of evidenceCorroborationSeries of like but separate frauds
"Moorov doctrine," "series regarded as a scheme"Neither concept available
towards identifying an accused with a specific fraud, where no evidence otherwise
so identifying him.
Over a period of two days immediately following a housebreaking and
associated theft of a number of articles, including a cheque book, a
woman, by fraudulent use of the cheque book, made purchases at the
premises of six different suppliers. She was identified at each trans-
action by one witness. There was a like identification for each of two
men when together they accompanied her at one of these transactions,
and also when separately they accompanied her, each at two others
of the remaining five transactions. A j ury found all three guilty of
theft by housebreaking and also, in respect of all six subsequent trans-
actions referred to, guilty of fraud by utteri ng.
No. 7.
J an. 24, 1975.