Lord Advocate's Reference (No 2 of 1992)

Factual and Procedural Background

On 4th November 1991, the Appellant entered a shop known as Pablo's Clothing Baby Wear in The City and presented an imitation handgun at two complainers, the proprietrix and an employee. The Appellant demanded money from the till and ordered the complainers to lie on the floor, causing them alarm and fear. The Appellant admitted these actions but contended that they were carried out as a joke without any evil intent to assault or rob. The complainers, however, testified that they took the incident seriously and were frightened. The Appellant was charged with assault with intent to rob and attempted robbery, as well as a firearms offence. At trial, the jury was directed that assault requires an attack with evil intent and that if they believed the Appellant's claim that it was a joke with no evil intent, they should acquit. The jury ultimately found the charges not proven. The Lord Advocate challenged the trial judge's directions, submitting that the deliberate acts admitted by the Appellant constituted assault as a matter of law, and that the defence of the actions being a joke was irrelevant. The court was referred the question of whether the trial judge erred in allowing the defence that the assault was a joke to negate the necessary evil intent.

Legal Issues Presented

1. Whether the trial judge erred in directing the jury that the Appellant's assertion that the assault was a joke could negate the necessary evil intent required for the crime of assault.
2. Whether, as a matter of law, the deliberate commission of the acts constituting assault necessarily implies the presence of evil intent, making the defence of the acts being a joke irrelevant.
3. Whether the defence that the acts were committed as a joke is relevant to the charge of assault with intent to rob or attempted robbery (not decided by the court in this opinion).

Arguments of the Parties

Advocate-Depute's Arguments

• The trial judge confused intent with motive; motive is irrelevant to criminal responsibility.
• If the actus reus is accompanied by the requisite mens rea, the defendant is guilty regardless of motive.
• The deliberate acts admitted by the Appellant constituted assault, and the necessary evil intent should be inferred from those acts.
• The defence that the acts were committed as a joke is not a relevant defence and should not be left to the jury.
• Relied on precedent from H.M. Advocate v. Edmiston (1886) and Ralston v. H.M. Advocate (1989) to support that motive does not negate criminal intent.
• Accepted that in limited contexts (e.g., sports or friendly joking) assault may not be committed, but the present case involved deliberate threatening conduct towards strangers.
• Argued that the trial judge's direction risked creating a "Robbers' Charter" by allowing a joke defence.

Counsel for the Appellant's Arguments

• The trial judge's directions were proper and customary in assault cases.
• The jury must consider all circumstances, including the Appellant's assertion that it was a joke, when determining whether evil intent existed.
• The assertion that the acts were a joke is not about motive but negates the presence of evil intent (mens rea) necessary for assault.
• Relied on precedent from H.M. Advocate v. Edmiston, Atkinson v. H.M. Advocate (1987), and Young v. McGlennan (1991) to support the approach that the whole circumstances must be considered.
• Rejected the notion of a cut-off point after which a joke defence is irrelevant; all conduct should be evaluated in context.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the meaning of "evil intent" in the context of assault, clarifying that it refers to the deliberate nature of the act rather than the motive behind it. The court emphasised that assault cannot be accidental, reckless, or negligent; it must be deliberate. The Appellant admitted deliberately pointing an imitation handgun and making threatening demands, which constituted the actus reus of assault. The court held that the mens rea of evil intent is established by the deliberate commission of these acts, irrespective of whether the Appellant claimed it was a joke.

The court rejected the Appellant's argument that the jury should consider the claim of a joke as negating evil intent. It reasoned that the quality of the act itself, being threatening and deliberate, sufficed to establish evil intent. The court noted that the Appellant's laughter and claim of joking occurred only after the assault was complete and thus were too late to affect the nature of the offence.

While the court agreed with the Advocate-Depute that motive is irrelevant once the criminal act and intent are established, it reserved opinion on whether the joke defence might be relevant to the aggravated charge of assault with intent to rob or attempted robbery, as no arguments were presented on those points.

The court also considered contextual exceptions, such as conduct in sporting events or friendly joking, but found these were not applicable to the deliberate threatening conduct against strangers in this case.

Accordingly, the court concluded that the trial judge misdirected the jury by allowing the defence that the assault was a joke to negate evil intent.

Holding and Implications

The court answered the question posed in the negative, holding that the trial judge erred in instructing the jury that the Appellant's claim that the assault was a joke could negate the necessary evil intent for assault.

The direct effect of this decision is that, as a matter of law, the deliberate commission of acts constituting assault inherently carries the necessary evil intent, making the defence of acting as a joke irrelevant to the mens rea element of assault. No new precedent was set regarding the aggravated charge of assault with intent to rob or attempted robbery, as the court reserved opinion on those aspects.