Tod and Mitchell specialise in all aspects of criminal defence work and regularly appear in criminal courts throughout Scotland dealing with cases in the High Court of Justiciary, the Sheriff Court and the Justice of the Peace Court.
Why use us?
Tod and Mitchell and our team of highly respected and experienced solicitors are well-known for our professional approach, vast knowledge of law and high percentage of case wins. Our head office is based in Paisley giving us the perfect central location for working with clients attending courts in Glasgow, Paisley, Dumbarton, Greenock and many more courts across Scotland.
Assault and Murder Specialist Lawyers
Any attack upon the person of another is an assault.
It is a physical attack on another which is intended to cause bodily injury OR which puts the victim in a state of fear that he or she may be about to suffer injury.
There need not be substantial violence , and indeed an extremely trivial attack is sufficient e.g a tap on the shoulder or a slap on the back .
The deliberate use of threatening gestures in order to place a person in a state of fear and alarm for his safety, even for jocular ulterior motive, is, however sufficient for assault.
Attempted assault in scots law is the same as an assault, in that to aim a blow and miss the intended recipient is an assault .
It is an assault to menace a person by a threatening gesture or by presenting or brandishing a weapon at him.
In such circumstances it is necessary that the complainer of the assault genuinely believed that he was in fear of actual injury and was alarmed at the prospect.
Aggravations of Assault
The seriousness of an assault depends on each cases own particular facts and circumstances but there are certain circumstances which are recognised as constituting an aggravation of the charge.
Essentially this means the allegation is more serious and greater penalties apply on conviction.
Aggravation of Assault
1. Use of a weapon constitutes an aggravation of an assault.
Certain types of assault are regarded as specially aggravated by firearms, stabbing or cutting or throwing corrosive substances.
.2. Extent of the injury caused by the assault
Whether the injury is severe is a question of fact for the court to decide. In a jury trial it is a matter for the jury to decide based on evidence. Evidence in support of such an aggravation may be medical records or opinion evidence from a medical witness.
The injury may result in a scar (permanent disfigurement) or some form of permanent impairment .
.3. The locus / where the assault takes place.
An assault on an employee at his workplace or a householder in his own home is an aggravation of the assault.
.4. The character of the victim
Aggravation by the absolute character of the victim or by the relationship between parties.
Domestic assaults for example are treated more seriously by the courts.
Absolute character includes police officers, customs and excise officers, judges, etc.
.5. Indecent assaults
An aggravation whereby an assault includes circumstances of indecency. Such assaults can be further aggravated if the complainer is a child or is vulnerable.
Whether or not an assault is aggravated in this way to be judged by an objective standard. An assault may have the quality of indecency irrespective of the accused’s intention or motive. Accordingly it is not essential that the Crown should prove that the offence was committed for the purpose of sexual gratification. Indecent assault requires a wrongful invasion of the victim’s physical integrity. An assault on a part of the victim’s body which has particular sexual significance may be indecent. An assault on other parts of the victim’s body may be indecent if accompanied by words or gestures of a sexual nature.
.6. To the danger of life
The assault may involve no actual injury. To throw somebody out of a moving vehicle would be an assault to the danger of life, even if the victim escaped injury. The prosecution doesn’t need to show the victim’s life was actually put at risk. The question for the court is potential to cause danger to life.
Intention to commit the crime is essential as no assault can be committed without the requisite intention (MENS REA).
The crime cannot be committed by accident, recklessly or by negligence.
Defence to Assault
Self defence is a complete defence to a charge of assault, murder and culpable homicide.
The following criteria must be present for self defence to apply to the circumstances of the case.
To establish such a defence the court must be satisfied that the accused was being attacked or had a genuine and reasonably held belief that he was about to be attacked.
No Means of Escape
In the circumstances he had no other option but to use force as he was unable to run away to escape from the attack or perceived danger. The defence will prevail even if the accused’s belief was mistaken.
No “Cruel Excess”
There must be no cruel excess of violence in the accused’s retaliation. The accused must not use force grossly in excess of that necessary . That is the foundation on which the plea itself is based. When considering the concept and of “Cruel excess” there must be allowance for the excitement or state of fear or heat of blood at the moment of attack.
A person is entitled to use force where necessary in order to ward off any unjustified personal attack made upon him.
A person may use such force as is reasonable in the circumstances for the purposes of:
.1. Self defence
.2. Defence of another
.3. Defence of property
.4. Prevention of crime
.5. Lawful arrest
Reasonableness of the force used is essential to the defence. Was the force necessary as what might be described as a last resort action and whether the force used was reasonable in the circumstances.
It is possible to act in the defence of another in the same way as you would act in your own defence.
Once self defence has been raised it is for the Crown to exclude it beyond reasonable doubt.
Provocation is NOT a defence in law.
It is a legal doctrine which mitigates the offence e.g. reduce a charge of murder to culpable homicide
There are three requirements for provocation
.1. The accused’s act, is what he was provoked to do, that he reacted or retaliated in the heat of the moment when through fear or agitation he had lost control of his actions.
.2. The provocation must be recent, that is that the reaction must be immediate to the provocative conduct.
.3. There must be a reasonable relationship between the provocation and that accused’s act.
There must be a reasonably proportionate relationship between the violent conduct offered by the victim and the reaction of the accused.
Theft with violence
Defined in Scots law as…
“Robbery is the felonious taking and appropriation of property in opposition to the will of another under whose personal charge it is.
Any violence, which is gathered from the mode and circumstances of the demand, and may naturally induce a man to surrender his property for the safety of his person, is sufficient to make a taking against the will of the sufferer, which is the essence of a robbery.”
A threat of immediate injury which is taken seriously , without actual physical contact, constitutes a robbery. It must be immediate in the circumstances as a stated intention to harm in the future is the crime of extortion.
In essence to prove a charge of robbery the Crown have to satisfy the court the following circumstances apply to the case.
(1) the accused threatened, menaced or used violence on the victim in the way described in the charge
(2) that was intended to cause fear or injury with the object of taking
property in the victim’s possession
(3) the accused took the victim’s property
Murder occurs when a person takes the life of another either deliberately (with intent) or in the circumstances where the accused person exhibits reckless disregard for the life of the victim.
Defence to a charge of murder is self defence.
Culpable Homicide is committed where the accused has caused loss of life through wrongful conduct, but where there was no intention to kill or “wicked recklessness”. This may also be considered in law where the accused is found to be of “diminished responsibility” because of some mental illness or where there was some provocation .
Wicked recklessness may be inferred from the circumstances of the accused’s actions. Normally this will be based on the severity of the injuries and other factors about the nature of the assault.
Specialist Assault Trial Lawyers
At Tod and Mitchell we have solicitors and solicitor-advocates who have experience in dealing with all kinds of assault cases ranging from a basic assault charge to allegations of murder in the High court.
With over 20 years experience in specialising in crime our lawyers have successfully defended clients in the Justice of the Peace, Sheriff court and High court.
We are particularly proud of our successful defence of clients in jury trials when the assault allegations are more serious.
In preparing the defence case we explore every avenue of evidence and frequently obtain reports from medical experts (consultants in accident and emergency medication), forensic scientists (DNA and fingerprint report), experts on the analysis of video identification evidence (challenging police witness video identification of clients) as well as other experts who are able to assist in the presentation of the defence case.
With our experienced team we are confident that we can offer our clients an outstanding service and we pride ourselves on our success in dealing with assault charges of all kinds including murder.