HER MAJESTY'S ADVOCATE v. S

The accused (hereinafter referred to as S) appeared at the High Court Glasgow and was originally charged with murder. S was born in December 1985. A preliminary diet over which I presided was held at Glasgow High Court on 8 and 9 July 1999. The accused had presented a Minute claiming inter alia that because of mental impairment he was not fit to plead nor to stand trial. I heard evidence including that of psychiatrists and a psychologist. In my consequent opinion I held that the accused was unfit to plead in terms of section 54(1) of the Criminal Procedure (Scotland) Act 1995.

"on 3 June 1998 at the wooded area at the rear of Laburnum Road, Viewpark, Uddingston, you did assault the deceased, aged 9 years, and knowing that there was petrol on his clothing did set fire to petrol near to him whereby he was set on fire and was so severely injured that on 18 June 1998 at the Royal Hospital for Sick Children, Yorkhill, Glasgow he died and you did kill him".

Evidence was led by the Advocate Depute and by senior counsel who represented the interest of S. I was also presented with a Statement of Uncontroverted Evidence and with a Joint Minute of Admissions entered into by the parties. This, inter alia , agreed that the evidence led before me at the preliminary diet should be treated as part of the evidence in the Examination of Facts.

At the end of the Crown case senior counsel for S submitted that he should be acquitted because there was no case to answer. I repelled this submission. On the following day the defence indicated that they did not intend to lead any evidence.

It is critical to the crime of assault that there should be an intention to harm the victim. That intention in my view has not been established in this case and I would be unable to conclude that S assaulted the deceased.