''Smart v Her Majesty's Advocate'' is a Scots law case that effectively excludes the common law doctrine of

Volenti non fit injuria ''Volenti non fit iniuria'' (or ''injuria'') (Latin: "to a willing person, injury is not done") is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of h ...

from Scots criminal law, when concerning assault. The case saw the accused, William Smart, who was charged with assault, lodging the defence that his victim Issac Wilkie has consented to a "square go". Therefore Smart could not be charged with assaulting Wilkie or any injuries arising from the fight.

Facts

Smart was originally tried at

Paisley Sheriff Court Paisley Sheriff Court is a municipal structure in St James Street, Paisley, Renfrewshire, Scotland. The complex, which was the headquarters of Renfrewshire County Council and is currently used as a courthouse, is a Category A listed building. ...

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?

Ruling

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 Gordon may refer to: People * Gordon (given name), a masculine given name, including list of persons and fictional characters * Gordon (surname), the surname * Gordon (slave), escaped to a Union Army camp during the U.S. Civil War * Clan 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.

Facts

Ruling

See also