HMA v Carol Kirk 2017
Carol Kirk was found guilty of assaulting a dog owner with a dog lead in May 2015 at the Justice of the Peace Court in Stirling. It was heard that she repeatedly hit the victim with the object to her injury. However she has had an appeal against her conviction refused after her case was referred to the Appeal Court of the High Court of Justiciary by the Scottish Criminal Cases Review Commission, passing a very high test.
The appellant indicated that she had not intended to assault the complainer and the Justice of the Peace was misdirected by thinking she had; but this argument was rejected by the appeal judges. The Justice at the Trial deferred passing sentence on the appellant for six months before admonishing her.
However, the appellant was still not happy with this as she was convicted of the assault but not the statutory breach of the peace and she argued no reasonable justice would have done this.
The Justice explained her reasoning beginning with: “Even if the appellant had not intended initially to hit the complainer and only intended to hit the dog …” The SCCR interpreted this as meaning that the Justice had accepted that the appellant had intended to strike the dog and not the complainer, and therefore did not have the mens rea. However, the appeal judges described that as “misunderstanding” of the justice’s reasoning and her appeal was rejected.