We recently received a question on the Scorpion Legal Protection Facebook page about how charges are dropped in cases of common assault. We take a look at how cases get withdrawn and what the law says.

What is assault?

It’s important to distinguish common assault from other types of assault because the legal implications differ. Common assault is defined as unlawfully and intentionally applying force to another person, or inspiring a belief in that other person that force is to be immediately applied to him or her. Assault that involves serious injury is called assault with intent to do grievous bodily harm (also called assault GBH). Assault GBH usually has more serious consequences, as the nature of the crime tends to be more serious.

What must be proved for a case of assault?

The state must prove the following:

• the act was voluntary (called actus reus)
• the offender had criminal capacity
• the offender was at fault through intention
• the standard of proof required in a criminal matter is ‘beyond a reasonable doubt’

When can a case be withdrawn?

There is no action the accused can take to get charges dropped; the decision to withdraw or drop charges is entirely up to the prosecution. Section 6 of the Criminal Procedure Act explains when a case can be withdrawn and who can withdraw it. Assault is a criminal offence, and will go to court as a criminal case. Before the plea, the prosecutors may decide to withdraw the case, in which case the accused will not get a verdict and is not entitled to one. Prosecution can be re-instituted again at a later stage, so it’s important to know that withdrawing the case is not the same as being acquitted.

In deciding whether or not to move forward with criminal proceedings against the accused, prosecutors must assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution. If they don’t reasonably think there is a chance of a conviction, the prosecution should not start or continue with the case. What can happen is that the case goes to court but the prosecution realises later that their case is not strong enough and they can decide to withdraw the charges before the accused has pleaded.

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If you have a query, ask Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month).

* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.