Appellant: L Kennedy, Adv; Jim Friel & Co, Glasgow

Respondent: G Wade AD; Crown Agent

30 April 2013

[1] We refer to the grounds of appeal and to the appellant's case and argument. The Crown no longer support the conviction, nor do the Crown seek to substitute a conviction of a lesser offence in the particular circumstances of this case.

[2] For completeness, we note that the appellant was convicted of assault on 8 June 2012. He had originally been charged with assault with intent to rob and attempted robbery. The jury made substantial deletions, and what remained was an offence of assault by shouting at the complainer. There is no specification of the words used, and we consider that the narration left in the charge does not support the verdict of assault given that all that remains are mere "words". Verbal conduct of this nature cannot, in our opinion, constitute assault. Further, on the information before us there were no actings or gestures on the part of the appellant sufficient to cause fear and alarm. We refer in this context to Macdonald, at p 115, Gordon, Criminal Law, para 29.03; and the case of Took v HM Advocate 1988 SCCR 495.

[3] In the result we shall allow the appeal and quash the conviction.

ES