This legal essay examines the crimes of assault, robbery and one’s liability in being art and part with such crimes as well as whether one’s actions can be likened to a lesser or greater charge. When evaluating what charge an accused should be given one must always remember that the ultimate objectives of the modern legal system are for the law to be certain, proportionate and to a certain extent fair.
Firstly, we must establish why George is guilty of both assault and robbery as opposed to merely assault or robbery. Robbery is defined under Scots criminal law as ‘theft accomplished by violence or the threat of violence’ (1). In order to establish whether George is guilty of robbery we must evaluate the mens rea and actus reus of robbery, which is the same as theft but with the added element of violence. Here the mens rea is the intention to deprive someone of their property permanently (2), though recent cases show it does not have to be on a permanent basis as established by the Black v Carmichael case. The actus reus (3) is the appropriation of property belonging to someone else without their consent (2). Here George has met the necessary conditions for the mens rea for theft as he has wrongfully taken the crisps with the intention of depriving the shopkeeper of the five packets. He also satisfies the actus reus of theft (2) as he appropriates the shopkeeper’s property without his consent. He then punches the shopkeeper and this element of actual violence transforms the theft into robbery. He has unquestionably committed a theft accomplished by violence. The Cromar v HM Adv case establishes that a minimal degree of violence is required for a theft to be considered a robbery making it likely that George would be convicted of robbery.
George can also be found guilty of committing assault as he satisfies the mens rea and actus reus for this crime. Assault is legally defined as “a deliberate attack upon the person of another which may be aggravated” (3). In the case of assault, ‘attack’ is defined by institutional writer, David Hume, as being real injuries by which “assault, invasion, beating and bruising, blooding and wounding, stabbing, mutilation, demembration and some others” (3) as defined by modern Scots law. Under Scots criminal law, the actus reus of assault is the direct infliction of violence which is clearly visible in George’s actions towards the shop clerk who he punches without provocation as the shop clerk did not threaten him. The grounds for provocation are assault, or the threat of assault, as well as sexual infidelity. Therefore, provocation cannot be used as a defense as George willingly committed violence. The mens rea of assault is evil intent, this could arguably be seen in George’s crime as he has conducted his attack intentionally without being reckless, negligent or under the influence. Ascertaining whether George has evil intent (4) is a tricky matter. It can be argued that George does in fact have evil intent as he knew prior to entering the shop that he could not afford the crisps and a reasonable individual would not attempt to use loyalty to the shop as payment.
Furthermore, a reasonable individual would not be likely to commit a violent attack if they were unable to afford the goods they were attempting to buy, but would, however, purchase as much as they could afford and leave the shop without any issues. The case of Kay v Allan establishes that the mere intention to hurt someone else can result in a conviction for assault. Under this reasoning, George is guilty of assault as he directly committed a violent attack. This is further illustrated by the case of Smart v HM Adv which tells us that the intention to cause people unlawful harm will result in the accused being liable of assault. For all these reasons it can be said that George is in fact guilty of assault. Although he has irrevocably committed both robbery and assault unfortunately for George, because he used actual violence, he has been charged with assault and robbery instead of merely robbery or assault. This would have increasingly serious implications for George. He has been charged with assault and robbery and this is only one crime.
We must examine the facts of the case and evaluate whether there is a more proportionate charge for George than assault and robbery. On one hand, it can be argued that George should not be charged with the more serious crime of assault and robbery. This is because he has already fulfilled the requirements for robbery as he has committed a theft in a violent manner by punching the shopkeeper. In this instance, George merely threw a single punch after which he immediately fled the scene. His actions only constitute as a relatively minor assault. If he had kicked the clerk whilst he was down and displayed excessively violent behavior, then perhaps it would be justified to charge him with assault and robbery, but this was just a single punch. Additionally, George left what money he had before fleeing the scene. It would thus not be just or reasonable to charge George with a much heavier sentence (assault and robbery) if he did not cause the shopkeeper any serious injuries (which we can assume this as there is not enough information provided regarding the shopkeeper’s injuries). Given that the main objective of the law is to be certain and unambiguous it would stand to reason that George should be charged with robbery because this is what he committed. If the courts were to charge him with assault and robbery, then a large number or robbery cases would be transformed into assault and robbery cases and this would not only be unfair but would lead to great legal uncertainty and open the floodgate of litigation.
On the other hand, however, it could be argued that George has committed both an assault and robbery. As explained above, George has successfully met the mens rea and actus reus for both crimes. The fact that he left his money after committing the crime does not change the reality of his criminal liability for his actions. His motive may have been to merely assume supplies for his party, however, motive is irrelevant in criminal liability, as is established in Lord Advocates Reference case. This case also saw the accused convicted even though he didn’t carry out any physical violence. George has physically attacked the shopkeeper, and this could be enough to charge him with robbery and assault.
Overall, to charge George with assault and robbery could be a wildly disproportionate response to his crimes. The facts of the case demonstrate that he fulfills the actus reus and mens rea of robbery as he wrongfully appropriates the shopkeeper’s property without consent with an intention to deprive him of it. His assault towards the clerk then turns this theft into robbery. Had he carried out an additional violent attack on the shopkeeper or had he severely injured him then a conviction of assault and robbery would be justified but this is not the case here. To charge George with assault and robbery would be unfair. It would create legal uncertainty as George has committed a robbery and he should be charged as such. Finally charging George with assault and robbery, a crime considerably more serious than robbery, would be wildly disproportionate. The principal aims of the Scottish criminal law are to be certain, proportionate and, arguably, fair and none of these principles will have been adhered to if George is convicted of assault and robbery.
Thirdly, I believe that it is fair for Harry to be charged for art and part complicity of assault and robbery, although he did actively willingly participate in an ongoing offence. Although George did not make Harry aware of his previous actions or the events that had occurred prior to George getting into Harry’s vehicle, Harry did in fact become involved in the ongoing offence via mere abetment of the crime itself through acting as the ‘getaway vehicle’. ‘Art and part liability’ (5) is the concept that where two or more individuals engage together is criminal activity, each individual is guilty of the whole crime regardless of the part that each individual played. The degree of involvement that may render an individual guilty can range from mere abetment to full participation in every part of the actus reus of the crime committed (6). In this case, Harry was not aware that George had committed any criminal activity prior to their interaction, however, Harry’s ‘art and part liability’ in this case is seen as mere abetment to the criminal activity as he did in fact aid George’s escape of the crime scene.
Additionally, according to the definition of ‘art and part liability’, Harry becomes increasingly involved in the actus reus of the full crime as he consumes the stolen goods alongside George. Upon the arrival of the police, it would be unknown that Harry was not involved in the full crime, and therefore they would believe that he was involved in the full actus reus of the crime in the same way as George. However, if Harry was made aware of George’s actions prior to driving him away and was involved in the full actus reus of the criminal activity; in this case the actus reus of robbery is the appropriation of property belonging to another, without consent, as well as the actus reus of assault; which is the direct infliction of violence, then it would also be appropriate to hold him guilty for art and part complicity of assault and robbery. Using the reasoning that Harry was unaware of George’s previous criminal actions yet became involved via mere abetment and consumption of stolen goods, and that you do not need to be involved via full participation in every part of the actus reus of the crime committed (e.g. in this case, Harry was not involved in the assault or robbery but became involved in an ongoing offence), it is fair for Harry to be charged with art and part complicity with assault and robbery.
In conclusion, George has been charged with merely one crime; assault and robbery, as a result of how he came to assume the goods of which the majority were stolen. Robbery is defined as “the taking of property of another by force, either of violence or intimidation” and according to the Theft Act 1968 (c. 60) (7) “An individual is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.” In George’s case, he has clearly fulfilled the full mens rea and actus reus of robbery through his violent conduct towards the shopkeeper and assumption of the goods. According to the Crown Office (8), where a theft follows or is followed by an assault, there may be a need for two separate charges as opposed to the charge of a single crime; assault and robbery. If the criminal act of theft occurs after an assault, which can be seen here in the case of George, it will be the responsibility of the High Court of the Justiciary to decide whether the force was used with an intent to steal.
Section 8(2) of the Theft Act 1968 shows that in the case of assault with an intent to rob, ‘no demand of one’s money or property is necessary to support the allegation of assault and robbery’ (8), where the intent to rob cannot be proven by evidence from surrounding circumstances (e.g. George not having enough money to purchase five packets of crisps), it is up to the Court to determine whether a charge of assault is necessary if no specific intent to rob can be proven. If robbery is theft accomplished via an assault, and George has successfully fulfilled the actus reus of assault but not fulfilled the mens rea, I believe that he should merely be charged with robbery as a single crime. George has a clear intent to rob what he cannot afford, and there is clear evidence for this, therefore to charge him with an additional charge of assault is unjust as he has successfully committed a violent theft. I also believe that due to Harry’s mere involvement in the actus reus via abetment of the criminal activity, he is liable in art and part complicity of assault and robbery and therefore his charge is just under the definition of art and part complicity.