Smart v HM Advocate

Smart was originally tried at Paisley Sheriff Court in 1974 by Sheriff Mclean and a jury. Smart put forward two lines of argument. Firstly, that he should not be charged with assault because the victim had consented to fight him and thus knew of the risks and consequences. Secondly, he argued that he had acted in self-defence, a plea that was ruled out because of the lack of evidence. The only question to be considered was whether consent ruled out (negated) assault?

The sheriff ruled that:

"Now something has been said about consent. I direct you in law that consent—if you in fact were to find that Wilkie had consented in some way to this assault—then 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. "

Smart was found guilty of assault by the jury and sentenced to detention for a period of three months. Smart chose to appeal this decision claiming consent was a defence to a charge of assault on the grounds that both men had chosen to fight without weapons in similar conditions to a boxing match. Smart relied on a passage from Gordon, Criminal Law at page 773, which stated:

"If 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 appeal was heard on 24 January 1975 in the High court of justiciary, who on appeal held that it was not a defence to a criminal charge of assault that the injuries had been caused in the course of a consensual fight. The court held that:

"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 situation was different from indecent acts or injuries caused in the course of organised sports, such as boxing.

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