Monthly Archives: April 2019

Apr 03

Spitting or coughing at frontline retail staff and security operatives

By ste7en8 | Corona Virus

There has been a  number of reported incidents in the media around the world of people deliberately spitting and coughing at retail staff and security operatives at retail stores during the Corona Virus pandemic.
This legal blog will pertain to acts 'carried out' as to differentiate between an act threatened and a physical assault carried out. 
A separate legal blog has been written on the subject of threatening behaviour and would be prevalent if the reader started with that separate legal blog first and then move onto this legal blog for further clarification.

There are two basic legal issues at hand during the coronavirus pandemic and people who spit or cough at those on the frontlines such as key workers in NHS, Police, Retail, Security Operatives. 

Statement from Crown Office and Procurator Fiscal Service

Any reported person who deliberately endangers life, or causes fear and alarm by pretending to do so, including by coughing on or spitting at someone, will be dealt with robustly by Scotland's prosecution service.
Scotland's prosecution service will take action to protect public safety at all times and has a range of responses available to tackle unacceptable criminal conduct that may arise during the coronavirus pandemic.
Coughing on or spitting at someone, depending on the circumstances, may be an assault or constitute the crime of culpable and reckless conduct. It is difficult to imagine a more compelling case for prosecution in the public interest.
COPFS is working closely with Police Scotland to ensure the continued effective investigation and prosecution. of crime, properly addressing criminal behaviour that threatens public safety and the safety of our emergency workers.

Friday 3rd of April 2020

What is assault in Scots Law?

The basic definition is “An assault is an attack on the person of another”. The crime of assault consists of a deliberate attack on another person with evil intent. Proof of evil intention, in the sense of intending to cause physical injury or fear of physical injury, is essential. Injuries caused accidentally or carelessly aren’t assaults. Weapons may or may not be involved. Injury may or may not result. So, menaces or threats producing fear or alarm in the victim are assaults.

The legal term used to describe victims of crime in Scotland is 'complainer'.

As is evident in law a complainer does not need to actually contract the coronavirus, just the mere threat of it occurring whenever a person spits or coughs in the face of another person and thereafter claiming to have the virus is prevalent to arrest and charge for serious (aggravated) assault.

Assault to injury can be committed by;

  • severe injury
  • injury of the person
  • permanent disfigurement
  • the effusion of blood
  • the danger of life
  • cutting and stabbing

The corona virus and attempted transmission from one person to another through an attack of coughing or spitting deliberately at another would clearly be held as an aggravated crime which is to say that it is clearly a serious assault and any civilian can carry out a citizen's arrest. Those on the frontlines such as security operatives protecting shop staff from daily abuse will face such incidents now face this very risk of serious and potential attempted murder charges.

Deliberately coughing or spitting on or at someone during the Coronavirus pandemic is likely to be charged as an 'aggravated assault' meaning that it is a more serious form of assault than a basic assault charge due to the severity of the Covid-19 virus and the likelihood of transmission which has the potential to cause the loss of human life.

What is culpable and reckless conduct?

There are a number of ways in which culpable and reckless conduct can be committed and a few of these have been highlighted as below for clarification. Culpable and reckless acts causing injury to others or created risk of injury would meet the definition.

A broad range – extending ‘assault’ – which also causing injury.

There are two ‘general’ offences

1. Reckless Injury

  • recklessly injury a person.
  • Unintentional - but objectively reckless

2. Reckless endangerment

  • Reckless behaviour...which is objectively dangerous to others.

Divergence of Assault and Reckless injury

  • Assault is a crime of intent – evil intention
  • Cannot be committed recklessly; carelessly; negligently

There are different ways in which reckless conduct may become criminal under the Scottish legal system. Reckless conduct to the danger of the lieges (public) will constitute a crime in Scotland and so too will reckless conduct which has caused actual injury.

The standard of recklessness is the same in both statutory and common law crimes.

The test is entirely objective. It is open to the trial judge, in charging the jury to adapt the judicial test.

In legal terms the phrase is "conduct or activity was such as to betray an utter indifference for the safety of the victim or the public

Reckless conduct can be committed in a number of ways.

  • reckless driving
  • the conduct or activity was such as to betray an utter indifference for the safety of the victim or the public
  • Buying alcohol for a minor who became seriously incapacitated by consuming it is culpable and reckless conduct
  • Physical force or restraint that is excessive and causes injury 

Where the accused is charged with a common law offence involving recklessness, the Crown requires to prove “an utter disregard of what the consequences of the act in question may be as far as the public is concerned” or, “a recklessness so high as to involve an indifference to the consequences for the public generally”.

As an expert witness and a door supervisor with over 32 years active service I can think of no better charge for individuals who spit or cough 'at or on' our NHS staff, Police, Retail staff and Security Operatives who are standing on the thin blue line as one and as key workers protecting our local communities 

Apr 02

Threatening to Spit or Cough on Frontline Key Workers

By ste7en8 | Corona Virus

There has been a number of reported incidents in the media in the U.K. and around the world of people deliberately spitting and coughing at retail staff and security operatives at retail stores during the Corona Virus pandemic. 
This legal blog will pertain to acts  threatened as opposed to having been  'carried out' as to differentiate between an act threatened and a physical assault carried out in Scots Law. 
A separate legal blog has been written on the subject of physical assault in regards to actions carried out.
A further legal blog will be published shortly on the law in relation to the Emergency Workers (Scotland) Act 2005 and further legal guidance.

What is the law in relation to 'threatening' &/or Abusive behaviour?

Previously the law in Scotland was held under the Common Law of breach of the peace when threats were made. The offence was that it was against the public order and decency that we expect a civil society to act out in such a abhorrent manner and as such it was clear that such behaviour was contrary to the common law.

The law in Scotland has somewhat developed rapidly in this area and can now be held under the Scottish statutory instrument (Act of the Scottish Parliament) under Section 38 of the Criminal Justice and Licensing (Scotland) Act 2010

This is commonly referred to as a Section 38 CJLSA

In recent years a charge under Section 38 Criminal Justice and Licensing (Scotland) Act 2010 has become one of the most prosecuted criminal offences in Scotland.

Where someone is accused of threatening or abusive behaviour, instead of being charged with a breach of the peace, individuals are now more likely to be charged under this statutory offence instead. The 2010 Act lays down the type of behaviour likely to form a Section 38 offence.

What is threatening behaviour?

Section 38 states that a person (“A”) commits an offence if-

(a) A behaves in a threatening or abusive manner, 

(b) the behaviour would be likely to cause a reasonable person to suffer fear or alarm, and

(c) A intends by the behaviour to cause fear or alarm or is reckless as to whether the behaviour would cause fear or alarm.”

The types of behaviour likely to be charged under section 38 are similar to what would have been previously charged as a Breach of the Peace (above), clear examples from case law show the following:

  • Shouting and swearing
  • Fighting
  • Abusive or threatening behaviour 
  • Abusive or threatening telephone calls, text messages and social media posts.
  • Disorderly conduct
  • Domestic abuse

Section 38(1) introduced an objective test, which essentially means that if an individual's conduct was likely to cause a “reasonable person” fear or alarm, then they can be found guilty irrespective of whether or not any of the witnesses were in a state of fear or alarm. This was confirmed through the case of Paterson v Procurator Fiscal Airdrie [2014] HCJAC 87.

Penalties for Conviction under S38

For less serious offences under summary procedure, imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both can be applied by the courts. Although it was previously rare for this type of criminal charge to be prosecuted on indictment, where the sentencing is more severe, imprisonment for a term not exceeding 5 years, or a fine, or both. 

It should be stated that this aspect of Scots Law shall see judicial developments through numerous cases being reported in the media daily of people being threatened by individual's claiming to have the deadly corona virus. Again, in most cases previously this type of charge very rarely ended up with a custodial sentence, this will undoubtably be dependant on the nature of the conduct and the individual circumstances of a person convicted. The corona virus is recognised as a potentially deadly infection and as such this will greatly impact upon the future criminal cases.

Defence to Threatening or Abusive behaviour

There is a statutory defence for a person charged with a section 38 offence, and, that is to show that the behaviour was, in the particular circumstances, reasonable