APPENDIX: RELEVANT PROVISIONS and commentary FROM THE DRAFT CRIMINAL CODE FOR SCOTLAND

 

Contents

 

Section 7 - Aggravated offences

Section 8 - General rules on state of mind required

Section 9 - Intention

Section 10 - Recklessness

Section 11 - Knowledge

Section 12 - Culpably self-induced state of mind

Section 23 - Self defence

Section 24 - Necessity

Section 25 - Involuntary conduct

Section 27 - Mental disorder

Section 28 - Error

Section 29 - Coercion

Section 37 - Murder

Section 38 - Culpable homicide

 

 

 

 

 

 

 

Section 7 - Aggravated offences

(1)        An offence may be aggravated by the intent or motivation with which it is committed, by the manner or circumstances in which it is committed, by the serious nature of the effects produced, by the special vulnerability of the victim; or by the abuse of a special relationship between the perpetrator and the victim, and may be charged and tried accordingly.

(2)        An offence under this Act may, in particular, be aggravated

(a)        if committed with intent to commit another offence;

(b)        if motivated by hatred or contempt for, or malice or ill-will towards, a group of persons defined by reference to race, colour, religion, gender, sexual orientation, nationality, citizenship or ethnic or national origins;

(c)        if accompanied by expressions of abuse or ill-will based on the victim’s membership or supposed membership of any such group;

(d)        if committed in circumstances involving an invasion of the victim’s home or privacy;

(e)        if committed against an officer of the law carrying out official duties by a person who knows, or could reasonably be expected to know, those circumstances;

(f)         if committed against a child under the age of 16 years;

(g)        if committed by a person who has, to that person’s knowledge, a position of trust or authority in relation to the victim; or

(h)        if it results in danger to life or serious personal injury or impairment.

(3)        An offence is not aggravated by a factor if that factor is already specified as an ingredient of the offence.

(4)        For the purposes of this section a group of persons is defined by reference to religion if it is defined by reference to their—

(a)        religious belief or lack of it;

(b)        membership of, or adherence to, a church or religious organisation;

(c)        support for the culture and traditions of a church or religious organisation; or

(d)        participation in activities associated with such a culture or such traditions.

COMMENTARY

This section makes it clear that an offence can be aggravated by intent, motivation, circumstances, relationship or effect. Such an aggravated offence may attract a more severe penalty. [1261] Certain aggravated offences may also have other consequences. For example assault with intent to rape and abduction with intent to rape count as sexual offences for the purposes of the Sex Offenders Act 1997 and conviction may thus result in the accused’s particulars being entered on the register of sex offenders. The list in section 7(2) is for purposes of illustration and is not intended to be exhaustive.

The current law recognises various nominate aggravated offences such as assault with intent to ravish, assault with intent to rob, racially aggravated harassment, [1262] hamesucken [1263] and deforcement. [1264] More generally, an assault or other offence might be libelled as aggravated by a particular intent or circumstances. [1265] The general rule in section 7 replaces the aggravated common law offences and section 74 of the Criminal Justice (Scotland) Act 2003 which deals with offences aggravated by religious prejudice. That section can accordingly be repealed. [1266]

Section 8 - General rules on state of mind required

(1)        The general rule is that a person is criminally liable

(a)        for an act, only if the person intended to perform that act;

(b)        for causing a result, only if the person intended to cause that result.

(2)        The enactment defining an offence may, however, provide in relation to the offence or any element of it that recklessness or some other state of mind suffices or that no particular state of mind is required.

(3)        Unless otherwise provided, knowledge of any circumstance forming part of the definition of an offence is required for guilt of that offence.

COMMENTARY

As a general rule, crimes comprise at least two elements: (1) some prohibited conduct, and (2) a legally blameworthy state of mind. In other words, it is not sufficient, in order to establish criminal responsibility, that an accused person has engaged in conduct prohibited by the criminal law. It is necessary also to show that that conduct was accompanied by a state of mind which the law regards as being appropriate for the attribution of criminal responsibility. So, for example, while it is an offence to destroy or damage property belonging to another person without that person’s consent, [1267] it is only an offence where that damage is done “intentionally” or “recklessly”. If, in a given situation, property is damaged accidentally, [1268] or even negligently, [1269] that is not an offence.

This section introduces three concepts used in the Act to describe a person’s state of mind for various purposes - namely “intention”, “recklessness” and “knowledge”. These terms are further defined in the following sections. Section 8 provides that, as a general rule, intention will be required. It also provides, however, that in certain cases recklessness may, by statute, be a sufficient state of mind for criminal responsibility. It also introduces the possibility of offences of strict liability by providing that an enactment defining an offence may provide that “no particular state of mind is required” in order to establish criminal responsibility. Section 8 recognises the legality of existing statutory offences which impose strict liability, and recognises the right of the legislature to create such offences in future.

The imposition of strict liability is controversial, since it involves imposing criminal responsibility on a person who did not intend to cause harm, and was not reckless or even aware that there was any risk of harm in what he or she was doing. It may, indeed, result in imposing liability on those who have in good faith sought to avoid committing an offence. For reasons such as these, the courts have, in general, insisted that that there is a presumption against strict liability, [1270] and the onus is on the Crown to show that the statute creating the offence is intended to impose this form of criminal liability. [1271]

Strict liability may at first sight appear to be inconsistent with the presumption of innocence. [1272] This matter has been discussed on a number of occasions by the European Court of Human rights which takes the view that it is not, in general terms, incompatible with the presumption of innocence set out in article 6(2) of the Convention. [1273] However, the imposition of strict liability does represent a departure from the basic principle set out in article 6(2), and as such should be confined “within reasonable limits which take into account the importance of what is at stake”. [1274] In other words, strict liability is subject to an over-riding rule of proportionality.

Section 8(3) makes it clear that, unless otherwise provided, knowledge of any circumstance forming part of the definition of an offence is required for guilt of that offence. This is one approach to the question of knowledge. Another approach, not generally favoured in modern statutes, is to make liability strict in this respect, subject to the availability of the defence of error. For strong policy reasons, this stricter approach is followed in this Act in relation to knowledge of the age of the victim in certain sexual offences. [1275] It should also be noted that in several offences (such as rape) [1276] recklessness as to the existence or non-existence of a circumstance, such as the victim’s consent, suffices.

Section 9 - Intention

(1)        For the purposes of criminal liability, and without restricting the ordinary meaning of intention

(a)        a person is treated as intending a result of his or her act if, at the time of the act, the person foresees that the result is certain or almost certain to occur;

(b)        a person who intends to harm a person and harms another person instead is treated as intending to harm the other person; and

(c)        a person who intends to damage property and damages other property instead is treated as intending to damage the other property.

(2)        Subject to subsection (1), there is no rule or presumption that a person intends the natural and probable results of that person’s acts.

COMMENTARY

This section provides a slightly extended definition of intention for the purposes of criminal liability. It does this by building upon, rather than replacing, the ordinary meaning of the word “intention”.

Providing a generally accepted definition of intention has proved to be problematic in other jurisdictions. [1277]62 It has also been a fruitful source of academic dispute. Generally speaking, however, the Scottish courts have avoided detailed discussion of this term. Somewhat exceptionally, in Sayer and Others v H.M. Advocate [1278] Lord Ross adopted the definition of intention offered by Asquith LJ in Cunliffe v Goodman. [1279] The definition was in the following terms:

“An ‘intention’ to my mind connotes a state of affairs which the party ‘intending’ … does more than merely contemplate, it connotes a state of affairs which, on the contrary, he has a reasonable prospect of being able to bring about, by his own act of volition.”

As a definition of intention this is not very satisfactory, partly because intention is a state of mind rather than a state of affairs. It has not been adopted by other judges in the Scottish courts.

The opening words of subsection (1) make it clear that intention should, in general, be given its ordinary meaning. [1280] Attempts to define the ordinary word “intention” by reference to other ordinary words such as “aim”, “purpose”, “foresight coupled with desire”, or “wanting” or “meaning” to do something, generally give rise to more difficulties than they resolve.

Subsection (1)(a) does, however, provide what might be described as an extended definition of intention. It is based on the consideration that there may be cases where it is entirely just to describe the consequences which an accused has brought about as intended, without those being the accused’s aim or purpose in acting. Section 9(1)(a) therefore extends the definition of intention to the case where the accused foresees that his or her conduct is certain or almost certain to give rise to a particular result and nevertheless pursues the course of conduct which leads to that result.

For example, a man attempting to escape pursuit may deliberately drive a car through a fence. He might argue that damaging the fence was not his intention. His intention was to escape and the fence was just in the way. He would have preferred it not to be there. The effect of subsection (1)(a) is that this argument will not work. He is treated as intending to damage the fence.

It is important to note that section 9(1)(a) only applies where the accused foresaw that the result was “certain or almost certain to occur”. Two points arise here.

(i)         The first is that the Crown must show that the actor was aware of the likely consequences of his or her conduct. It would not be sufficient, in order to prove intention, for the Crown to show that any reasonable person would have realised that this was the case.

(ii)        The second is that a high degree of probability is required before this form of intention can be attributed to the accused. It is not enough, for example, for the Crown to show that the accused knew that a particular result was “likely” or “highly likely”. Consider, in this regard, the circumstances of the English case of Hyam v DPP. [1281] In that case the accused, wishing to frighten another woman into ending her association with the accused’s former boyfriend, put petrol and paper through her rival’s letterbox, setting fire to the house. In the ensuing conflagration two children, asleep in an upstairs bedroom, were killed. The accused was unaware of the presence of the children. Notwithstanding the highly dangerous nature of A’s actions, it cannot be said that A “intended” the deaths of the children. This was not something that she wished to occur, and it cannot be said that death was “certain or almost certain to occur”.

Subsections (1)(b) and (c) apply the doctrine of transferred intent to offences against the person and property generally. The separate treatment of the two categories of offence makes it clear that the doctrine does not apply between different categories of crime. The doctrine does not, therefore, apply where, for example, A intends to cause harm to another person, but in fact causes damage to property.

The common law adopts a rather inconsistent approach to the question of transferred intent. It recognises the doctrine in the context of murder [1282] and assault. [1283] The doctrine may apply also to offences of criminal damage, but in Byrne v H.M. Advocate [1284] the High Court held that it did not apply to the crime of wilful fire-raising.

Subsection (2) makes it clear that there is no general rule or presumption that a person intends the natural and probable consequences of his or her acts. [1285]

Section 10 - Recklessness

For the purposes of criminal liability

(a)        something is caused recklessly if the person causing the result is, or ought to be, aware of an obvious and serious risk that acting will bring about the result but nonetheless acts where no reasonable person would do so;

(b)        a person is reckless as to a circumstance, or as to a possible result of an act, if the person is, or ought to be, aware of an obvious and serious risk that the circumstance exists, or that the result will follow, but nonetheless acts where no reasonable person would do so;

(c)        a person acts recklessly if the person is, or ought to be, aware of an obvious and serious risk of dangers or of possible harmful results in so acting but nonetheless acts where no reasonable person would do so.

COMMENTARY

Recklessness is accepted as a sufficient state of mind for a number of offences under this Act. As section 10 recognises, a person may be reckless with regard to conduct, the consequences or possible consequences of conduct, and surrounding circumstances. Thus a person might discharge a gun recklessly, in the sense that the action creates an obvious and serious risk of injury to others or damage to property, without actually causing any such injury or damage; [1286] a person might, by reckless conduct injure others or damage property; [1287] and a person might have sexual intercourse with another person without that person’s consent, being reckless as to whether there is consent or not.

Recklessness connotes risk-taking, and in this sense may take two forms. As a concept it embraces the deliberate risk-taker, the person who knows that his or her conduct presents certain risks, or is aware that certain circumstances may be present. But it also embraces the person who is not aware of the risks, but who, judged by certain objective standards, ought to be aware. For that reason, section 10 refers, throughout, not only to the person who is aware of the risks, but also to the person who ought to be aware of the risks.

There is a danger, however, that punishing those who fail to appreciate risks places the threshold of criminal liability too low. It comes close to holding persons criminally responsible for negligent conduct. For that reason, section 10 refers to a failure to appreciate “an obvious and serious risk”. This is intended to demonstrate that a person is not reckless merely because of a failure to meet the standard of care that can be expected of ordinary reasonable people. The requirement in section 10 that the accused fail to appreciate “an obvious and serious risk”, reflects the common law. [1288]

The precise effect of applying the concept of recklessness in relation to any offence depends on the wording of the provision creating that offence. Often the wording will specify the particular results or circumstances as to which the person must be reckless. Sometimes, however, the wording may refer to doing an act “recklessly” without more. [1289] Paragraph (c) is intended to provide a default rule for interpreting such references. A statute creating an offence involving recklessness could provide its own definition of recklessness. [1290] In the absence of any such special meaning a reference to acting recklessly will be construed under paragraph (c) as including an implied reference to recklessness as to the dangers or possible harmful results of acting in the specified way. This is broadly in line with the existing law. In relation to reckless driving, for example, the High Court has said that driving “recklessly” means “driving which demonstrates a gross degree of carelessness in the face of dangers”. [1291] This, like paragraph (c), includes objective recklessness. The code makes it clear that a person is reckless as to the dangers or possible harmful results of acting if the person is, or ought to be, aware of an obvious and serious risk that those dangers exist or that those results will follow but nonetheless acts where no reasonable person would do so. It tries to introduce a measure of consistency in the use of the concept of recklessness.

Section 11 - Knowledge

For the purposes of criminal liability, and without restricting the ordinary meaning of knowledge, a person is treated as knowing of a circumstance if the circumstance exists and (a) the person would have known of it but for a wilful and unreasonable failure to allow that knowledge to be acquired; or (b) the person thinks that the circumstance almost certainly exists but nonetheless proceeds where no reasonable person would do so.

COMMENTARY

As with “intention” in section 9, no attempt is made to provide a general definition of “knowledge”. However, section 11 provides an expanded explanation of the term, and extends it to cases where it would, in any event, be difficult to prove “actual” knowledge on the part of the accused.

Paragraph (a) is akin to the notion of “wilful blindness” which has been accepted as a sufficient state of mind with regard to surrounding circumstances where the primary requirement is knowledge. Paragraph (b) deals with the problem that the distinction between knowledge and virtual certainty can be very fine. Very few things can be known with absolute certainty. This could be used by accused persons in a rather pedantic way. For example, an accused may be asked if he knew there were children on the other side of a wall. He may admit that he heard children’s voices. When pressed, he may say that while he thought there were almost certainly children there he did not know this for certain because the voices could have come from a radio or tape recorder. Section 11(b) prevents pedantic quibbles of this type from being put forward as successful defences in any case where the accused has proceeded to act, despite thinking that the relevant circumstance almost certainly exists, where no reasonable person would have done so. This type of situation is not covered by the wilful blindness provision in paragraph (a) because there is no wilful and unreasonable failure to allow the knowledge to be acquired.

The concept of “wilful blindness” is recognised by the common law. For instance, in relation to the crime of reset, [1292] the general rule is that it must be proved that the accused knew that the goods were stolen. In the case of Latta v Herron [1293] it was accepted that “wilful blindness” as to the provenance of various items of stolen property was sufficient to sustain a charge of reset.

Section 12 - Culpably self-induced state of mind

(1)        For the purposes of criminal liability, a person cannot found on a temporary state of mind which is culpably self-induced, and accordingly

(a)        where such a state of mind precludes the intention or other mental element required for an offence, the person is to be regarded as having that intention or mental element; and

(b)        where such a state of mind gives rise to the availability of a defence or exception, that defence or exception is to be regarded as not being available.

(2)        For the purposes of this section, a temporary state of mind is culpably self-induced by a person if it was caused by

(a)        a voluntary taking (by swallowing, injecting, inhaling or any other means) by that person of alcohol or any other drug or substance; or

(b)        a voluntary failure by that person to take any medication or precautionary measures, when the person knew, or ought to have known, that the taking or failure to take was likely to lead to a loss of self-control.

(3)        Subsection (2) does not apply to anything done in good faith in compliance with the directions of a registered medical or dental practitioner.

(4)        The fact that an offence was committed in the circumstances mentioned in this section is not an aggravation of the offence but may, if there is a serious disproportion between the degree of culpability and the seriousness of the offence, be taken into account in mitigation of sentence.

(5)        This section does not apply to the offences of presence with intent to commit an offence or possession of tools with intent to commit an offence.

COMMENTARY

This section deals with the problem of the person who commits an offence while his or her mental condition is impaired through intoxication brought about by the voluntary consumption of intoxicants, or by the voluntary failure to avoid a condition of intoxication.

While voluntary intoxication is no defence to a criminal charge, involuntary intoxication may be a defence. The latter will occur when the intoxication is not self-induced (that is, the accused is unaware that he or she is consuming the intoxicant), and produces a total alienation of reason amounting to a complete loss of self-control in relation to the offence charged.

Under the common law, voluntary intoxication is no defence to a criminal charge. [1294] The doctrinal basis of this rule is unclear, and it is substantially based on policy considerations: those who commit offences when drunk present a significant social danger, and are deserving of punishment for the harm which they cause notwithstanding the fact that at the time they commit the offence they may be unaware of what they are doing, or unable to control their behaviour. In contrast, the courts have accepted that “involuntary intoxication” may be a defence to a criminal charge, in the circumstances described above. [1295]

Section 12 follows the policy of the present law but puts the current rules on a clear statutory basis. Subsection (1) sets out the basic rule that culpably self-induced intoxication is not a defence. Subsection (2) explains what is meant by “culpably self-induced”. Subsection (3) contains an exception for anything done in good faith in compliance with the directions of a registered medical or dental practitioner. [1296] Subsection (4) introduces an element of flexibility when it comes to sentencing. The reason for subsection (5) is that the offences there mentioned depend almost entirely on intent and, if the person was to be regarded under section 12(1)(a) as having the intention necessary to commit the offences, their scope would be unacceptably wide.

Section 23 - Self defence

(1) A person is not guilty of an offence against an aggressor, or any property of the aggressor, if the person acts in self defence.

(2)        A person acts in self defence only if the acts in question are immediately necessary and reasonable

(a)        to defend that person or another person against unlawful force or unlawful personal harm from an aggressor;

(b)        to prevent or end the unlawful detention of that person or another person by an aggressor;

(c) to protect property (whether belonging to that person or another person) from being unlawfully taken, damaged or destroyed by an aggressor; or

(d)        to prevent or end an unlawful intrusion or presence by an aggressor on property of which that person, or a person under whose authority that person acts, is lawfully in possession.

(3)        For the purposes of this section

(a)        any acts likely to kill a person are not to be treated as reasonable except where they are immediately necessary for the purpose of saving the life of, or protecting from serious injury, the person doing the acts or some other person;

(b)        anything justified by the defences of lawful authority, self defence, or necessity is not unlawful; and

(c)        a person’s presence on property is to be treated as lawful, notwithstanding the fact that that person does not have a legal title to occupy as owner, tenant or otherwise, if that person’s occupancy is at the relevant time protected by law.

COMMENTARY

This section reflects the policy that accused persons are entitled to an acquittal where they use reasonable force to repel unlawful violence or certain other types of unlawful conduct by others.

Subsection (1) contains the general rule that a person is not guilty of an offence against the aggressor, or any property of the aggressor, if the person acts in self defence. The most usual application of the defence is in relation to self defence against assault but it also applies to other situations. A person who is unlawfully locked up by an assailant in the assailant’s shed, for example, is entitled to break down the door to escape and would not be committing the offence of criminal damage to property. [1297]

The fact that the section refers to “an aggressor” does not mean that there is no available defence where the threat to a person comes from a non-aggressive act or from another source. The defence of necessity provided by section 24 would often be available in such cases. For example, if a climber has to cut a rope and cause the death of a fellow climber in order to prevent himself from being dragged along with the other climber to a certain death that would not be self-defence against an aggressor but may be justified by the necessity defence. Similarly, if a person is locked up in a shed belonging to someone other than the aggressor the breaking of the door in order to escape may be justified by the defence of necessity.

Subsection (2) provides that the conduct of the accused must be immediately necessary and reasonable and must be for one of the purposes set out in this subsection. The only one which requires explanation is paragraph (d). This covers self help which is immediately necessary and reasonable to prevent or end an unlawful intrusion on property but is subject to, for example, the laws that are designed to protect overstaying tenants or spouses against eviction without the use of the appropriate legal procedures. See subsection (3)(c).

Subsection (3)(a) makes it clear that where deadly force is used, the accused must have been acting to repel a threat to his or her own life, or that of a third party. This is in line with Article 2 of the European Convention on Human Rights. A great deal of media attention has focussed recently on the meaning of reasonable force where the accused uses violence against a housebreaker. The English case of Tony Martin serves to illustrate this. The Scottish courts have tended to hold that force may be classed as reasonable so long as it does not, in the circumstances, amount to a cruel excess of violence. [1298]

This section largely reflects the common law position, but makes it clear that reasonable force can also be used in defence of property. Subsection (3) (on acts likely to kill) is somewhat narrower than the common law, which allows a woman to kill to prevent rape but does not permit a man to kill to prevent non-consensual sodomy. [1299]

Section 24 - Necessity

(1)        A person is not guilty of an offence if the acts in question are justified by necessity.

(2)        A person’s acts are justified by necessity if, in circumstances not amounting to self defence or coercion

(a)        they are immediately necessary and reasonable in order to prevent a greater harm; and

(b)        the commission of what would otherwise be an offence could reasonably be regarded as justifiable in the circumstances.

(3)        This section justifies the taking of human life only if that is done to save human life.

COMMENTARY

Necessity applies where circumstances other than threats by a third party put the accused in the situation of having to choose between, on the one hand, obeying the law and causing serious ill consequences and, on the other hand, breaking the law. Where the latter course of action is the lesser of two evils, the accused may have a complete defence. There is an obvious public interest in keeping the defence within reasonable bounds. The situation must be such that any reasonable person would believe the commission of the offence to be justified.

Where life has been taken, necessity can only form a defence if the action was taken to save life.

In respect of the common law, the defences of necessity and coercion were conflated by the High Court, in the case of Moss v Howdle. [1300]  They are, however, better treated as two distinct defences. The former involves the accused having to make a decision whether or not to break the law in order to prevent a greater harm, not necessarily a harm to himself or herself. The accused has, as it were, a free choice. In the latter, the accused is under pressure from threats by a third party who is attempting to deny the accused a free choice. Although the person who is coerced into committing a criminal offence is often deserving of as much sympathy as the person who acts to prevent a greater harm, the policy considerations applying to the two offences are not necessarily the same. There is perhaps a stronger public policy argument for keeping coercion within narrow bounds because of the risk of abuse by criminal coercers.

The roles of necessity and coercion are also different in relation to art and part liability, [1301]  incitement, [1302]  conspiracy [1303]  and self-defence. [1304]

As with coercion, it is unclear whether, at common law, necessity is available to a charge of murder or culpable homicide. In the case of R v Dudley and Stevens [1305] the House of Lords ruled out this possibility for English law. In principle, however, even the taking of life may be justified by necessity. For example, a driver whose brakes have failed may opt to steer the car towards a pavement with only one or two pedestrians, rather than steer towards a large crowd of people. A person may throw a bomb out of a window, averting the deaths of hundreds, but causing the death of someone outside the building.

Section 25 - Involuntary conduct

(1)        A person is not guilty of an offence if any act or apparent act forming an essential ingredient of the offence was, without fault on that person’s part, beyond that person’s physical control.

(2)        An act or apparent act beyond a person’s physical control may include

(a)        a reflex movement, spasm or convulsion;

(b)        a bodily movement during unconsciousness or sleep;

(c)        a bodily movement resulting from the person’s body or part of it being merely an instrument in the hands of another;

(d)        a bodily movement resulting from the person being subjected to the operation of natural forces;

(e)        an act or movement resulting from hypnosis.

(3)        Where a person is acquitted because of this section and it is proved on a balance of probabilities that the involuntary conduct was due to a disorder which is likely to continue or recur, the person may, where this is necessary for the protection of others, be treated as if acquitted on the ground of mental disorder.

 

COMMENTARY

This section contains one of the fundamental principles of criminal responsibility, namely that a person should not be held responsible for conduct forming part of an offence which is beyond his or her control.

The circumstances in which this may occur are various. In HM Advocate v Ritchie [1306] the accused was charged with the culpable homicide of a pedestrian by reckless driving. His defence that he had become overcome by “toxic exhaustive factors” so that he was no longer conscious and in control of the vehicle at the time of the accident was accepted by the court. In Simon Fraser [1307] an accused was charged with the murder of his infant son. It appeared that the acts resulting in the child’s death were carried out by the accused while in a state of somnambulism. The accused was discharged upon giving an undertaking to the court that he would thereafter sleep alone. The basis of the disposal in that case is obscure, but section 25(2)(b) makes it clear that the accused would be entitled to an acquittal on the ground that the killing was not within his physical control. In cases such as Fraser, however, where the conduct was due to a disorder which is likely to continue or recur, the court may decide that the public need to be protected from such a recurrence, and treat the accused as if he or she had been acquitted on the ground of mental disorder. In such cases, the accused may be dealt with according to the procedures described in section 58 of the Criminal Procedure (Scotland) Act 1995. In short, such a person may be made the subject of a hospital order, or other measures involving compulsory medical care.

It is important to note that section 25 applies only where the lack of control was “without fault” on the part of the accused. So, for example, where an accused person committed a number of driving offences while in a somnambulistic state, the court held that he could be found guilty since he had contributed to his condition by consuming alcohol, knowing (from past experience) that this could provoke his somnambulism. [1308] 

Persons who unknowingly consume intoxicants and as a result are unable to control their actions are entitled to be acquitted under the existing law. [1309]  The section makes no change in that respect.

The current law also draws the distinction made in section 25(3) between the involuntary conduct which results from an external factor (such as a blow on the head or a spiked drink) which is not likely to recur, and a medical condition which is likely to lead to similar loss of control in the future.

 

Section 27 - Mental disorder

(1)        A person is not guilty of an offence if the acts in question were done as a result of a mental disorder which rendered the person incapable of conforming to the relevant requirements of the criminal law or of appreciating the true nature or significance of the acts.

(2)        An accused cannot be acquitted on the ground of mental disorder unless the requirements of subsection (1) are proved on a balance of probabilities.

COMMENTARY

An accused who was suffering from a mental disorder at the time of the offence may be entitled to an acquittal. “Mental disorder” is defined later. [1310]

Subsection (1) makes it clear that an accused would be entitled to the defence of mental disorder not only if the disorder rendered him or her incapable of understanding the true nature or significance of his or her acts but also if it rendered him or her incapable of conforming to the relevant requirements of the criminal law.

Subsection (2) provides rules with regard to the proof of this defence. An accused cannot be acquitted unless the requirements of subsection (1) are proved on a balance of probabilities. This reflects the existing law and the policy consideration that it should not be made too easy for people to use a plea of mental disorder in order to escape criminal responsibility. The existing law has, however, been criticised as an unjustifiable exception to the normal rule that the burden of proof is on the prosecution. [1311]  If it were to be decided that the law should be changed it would be very easy simply to delete subsection (2) and allow the normal rules to apply.

Under the existing law an accused is entitled to an acquittal on the ground that she or he was “insane” at the time of the offence. [1312]  Section 27 re-formulates the insanity defence by updating the terminology.

The precise formulation of the plea of insanity in the existing law is uncertain, although it is accepted that the accused, in order to benefit from this plea, must prove (on a balance of probabilities) that he or she was suffering from a “total alienation of reason in relation to the act charged as a result of mental illness.” [1313]  Various objections can be raised to this formulation of the plea, most notably that the term “insanity” has no place in modern medical understanding of mental disorder. It also places much greater emphasis on the accused’s ability to reason than might be supported by modern understanding of the nature of mental disorder.

The topic of insanity has recently been considered by the Scottish Law Commission in its discussion paper on Insanity and Diminished Responsibility, DP No 122 (2003). [1314]  The manifest defects in the existing law are, we believe, met by section 27 although, as noted above, there could be debate about subsection (2).

Section 28 - Error

(1) A person who acts under a mistaken but reasonable belief in a state of affairs is not guilty of an offence if there would have been no criminal liability had the facts been as they were believed to be.

(2) A person who acts under a mistaken belief induced by reliance on official advice as to the lawfulness of the act is not guilty of an offence if

(a) it was reasonable in the circumstances for the person to rely on the official advice; and

(b) there would have been no criminal liability had the official advice been correct.

(3) In this section

(a) an error as to a state of affairs includes an error as to the age of a person, a quality or characteristic possessed by a person, the presence of consent, the existence of a relationship, and the ownership of property but does not include an error as to the requirements of the criminal law; and

(b) “official advice” means advice from a national or local government official charged with some responsibility for the area of activity in question.

COMMENTARY 

The accused who acts under a mistaken belief which is reasonable in the circumstances may have the defence of error. The error must be such that there would have been no offence had the state of affairs been such as the accused supposed it to be. For example, the accused who takes someone else’s property would have a defence if this was done in the reasonable belief that the property was in fact his or her own. The accused has made an error as to the ownership of the property and, in the words of the section, the error is such that “there would have been no criminal liability had the facts been as they were believed to be”. In contrast, if the accused takes someone’s else’s property, believing that the property belongs to A, when in fact it belongs to B, there is no defence of error available under this section since there would still have been an offence if the property had belonged to B.

An error as to the applicability of the criminal law is not a defence. An example of this is the case of Clark v Syme [1315] in which the accused shot a neighbour’s sheep in the belief that he was under a legal entitlement to do so. He was found guilty of malicious mischief. [1316] 

Subsection (2) provides for a defence where the error was induced by reliance on official advice. The case of Roberts v Local Authority for Inverness [1317] may be an example of this. Here the accused had applied for a licence to move cattle from one local authority area to another but was told by the responsible official that no licence was necessary. The responsible official was himself in good faith as he thought, wrongly, that the amalgamation of two local authority areas had affected the position. The accused was convicted at first instance of moving cattle without a licence but his conviction was quashed on appeal. The statute in that case provided a defence of lawful authority or excuse, and the court held that the accused had a lawful excuse.

Subsection (3) provides, for the avoidance of doubt, that an error as to the ownership of property, as to a person’s age or as to the existence or non-existence of a relationship counts as an error as to a state of affairs. Ownership or the existence of a relationship might possibly have been regarded as matters of law.

Ignorance of the law is no defence at common law and errors of fact generally can exculpate only if both honest and reasonable. The exception to this is the crime of rape. Section 28 applies to all crimes, including rape. See the commentary to section 61.

Section 29 - Coercion

(1)        A person is not guilty of an offence if the acts constituting the offence were done only under the immediate effect of coercion.

(2)        Coercion, for the purposes of this section, requires

(a)        a threat by the coercing person to cause immediate fatal or serious injury to the coerced person or another person if the acts constituting the offence are not done;

(b)        that the coerced person had not intentionally gone into a situation where it was foreseeable that such a threat might be made;

(c)        that the threat was not one which the person could reasonably be expected otherwise to have avoided; and

(d)        that the threat was one which would have induced a person of normal fortitude having the characteristics of the coerced person to commit the offence.

(3)        This section applies to the taking of human life only if that is done in order to save human life.

COMMENTARY

The rationale for allowing the defence of coercion is that threats of violence addressed to an accused or a third party (perhaps towards a family member) put the accused in the invidious position of having either to obey the law and suffer the consequences, or break the law. Justice requires that an individual ought to have a fair opportunity to conform to the law, and the behaviour of the coercer prevents this. On the other hand there is an obvious public interest in not making the defence of coercion too readily available.

Subsection (1) confers the defence of coercion, but subject to strict limitations. The most general is that what was done must have been done only under the immediate effect of the coercion.

Subsection (2) sets out further requirements. The first, covered in paragraph (a), is that there must have been a threat of immediate serious injury to, or the death of, the coerced person or another person. If the threats are not immediate the threatened person is expected to seek recourse to the police, where appropriate, rather than to succumb to the threats. [1318]  Paragraph (b) requires that the accused must not have intentionally gone into the situation where it was foreseeable that such a threat would be made. This covers the situation in which the accused has been in some sense responsible for being in the situation e.g.- the accused who joins a terrorist organisation and then later complains that other members of the organisation coerced him or her into breaking the law. This is also the position in other jurisdictions. [1319]  Subsection (2)(c) requires that the accused must be faced with no other alternatives but breaking the law or suffering the violence offered by the coercer. Subsection (2)(d) requires that the threats must be such as to have had a similar impact on a reasonable person. People can be expected to show a reasonable degree of fortitude.

Subsection (3) addresses the issue of whether coercion can be a defence to murder or culpable homicide. The Act does allow coercion to be a defence when life has been taken, but only if this had been done to save life.

Coercion is a recognised defence under the common law, but its limits have not been clearly established. The issue of coercion in cases of murder or culpable homicide has not been authoritatively decided. Its applicability to the case of murder was touched on briefly by the court in Thomson v H. M. Advocate [1320] but the court expressly declined to express a view on that point. In Collins v H.M. Advocate [1321] Lord Allanbridge, in his charge to the jury, stated that the defence of coercion was not available in a case of murder. That statement must, however, be regarded as entirely obiter since neither of the accused in Collins had relied upon the defence of coercion. The House of Lords has held that in English law coercion is not available as a defence to a charge of murder [1322] or attempted murder. [1323]  In principle, however, there is no reason for not allowing coercion to provide a defence, where the taking of life by the accused was the lesser of two evils in the circumstances.

Section 37 - Murder

(1)        A person who causes the death of another person with the intention of causing such a death, or with callous recklessness as to whether such a death is caused, is guilty of the offence of murder.

(2)        Notwithstanding anything in section 9 (Intention), a registered medical practitioner, or a person acting under the direction of such a practitioner, who, acting with the consent of a patient or with lawful authority, does anything reasonably and in good faith with the primary purpose of relieving the patient’s pain or discomfort is not regarded as intending to cause the death of the patient merely because the practitioner or other person foresees that the death is certain or almost certain to occur earlier than it otherwise would.

COMMENTARY

The definition in subsection (1) treats the mental element in the crime as its defining characteristic. [1324]  Murder embraces not only intentional killing, but also reckless killing. As the subsection makes clear, however, murder requires a particular kind of recklessness. It is not sufficient that the accused is shown to have acted recklessly with regard to death. The Crown must show that the accused acted with “callous” recklessness, suggesting extreme disregard for human life.

The offence is confined to the killing of another person, so that it continues to exclude the possibility of a charge of murder in cases where the death in question is that of an unborn child, [1325] and in cases of “self murder” or suicide. [1326]

Subsection (2) makes provision for an exception to the general rule set out in subsection 9(1)(a) (intention). It addresses the situation where a doctor treating a patient may, in good faith, act so as to relieve the patient’s suffering, foreseeing that the treatment may hasten death. Given the extended definition of intention provided in section 9(1)(a) it would be difficult to avoid the conclusion that the doctor intended death. A similar conclusion has already been reached by the Court of Appeal in England. [1327]  The purpose of subsection (2) is to ensure that, subject to the safeguards set out in the provision, doctors are not put at risk of prosecution for treatments having a “double effect” - that is treatments which have the primary effect of relieving pain or discomfort but which also have the effect of hastening death.

Until relatively recently the accepted common law definition of murder was that contained in Macdonald’s Criminal Law: [1328]

“Murder is constituted by any wilful act causing the destruction of life, whether intended to kill, or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences.”

In Drury v H.M. Advocate [1329] the then Lord Justice-General, Lord Rodger, expressed the view that murder required a “wicked” intention to kill. This view is unsupported by any of the earlier authorities on the definition of murder, and does not appear to have been referred to by the High Court in the subsequent case of Galbraith v H.M. Advocate (No. 2). [1330]  The distinction drawn between an “ordinary” intention to kill and a “wicked” intention to kill may, in any event, be rather limited since in Drury the Lord Justice-General qualifies his statement by a reference to Hume which suggests that all cases of intention to kill are “wicked” unless the killing is justified or excused. [1331]  Section 37 follows the interpretation of the law as it was before Drury, but uses “callous” rather than “wicked” to describe the special type of recklessness required. “Callous” describes well the type of recklessness required. It must be more than ordinary recklessness. It must involve a callous acceptance of the risk of death created by the acts or a callous indifference to the possible fatal consequences of the acts. The terrorist who plants a bomb and gives the police a short advance warning may argue that he did not intend to kill anyone but, if somebody is killed, could be convicted of murder on the ground that he was callously reckless as to whether death was caused. Callous has the advantage of not carrying with it some of the more artificial baggage which accompanies the term “wickedly reckless” such as the question whether there can be wicked recklessness in the absence of an intention to do some bodily harm. [1332]

Section 38 - Culpable homicide

(1)        A person who causes the death of another person

(a)        recklessly;

(b)        by an assault; or

(c)        by another unlawful act likely to cause significant physical harm, provided that the person intended the act to cause such harm or was reckless as to whether it would cause such harm, is guilty of the offence of culpable homicide.

(2)        Neither an intention to cause death nor recklessness as to whether death is caused is necessary for guilt under subsection (1)(b) or (c).

(3)        A person who, but for this subsection, would be guilty of murder is not guilty of murder, but is guilty of culpable homicide, if

(a)        the person, at the time of the killing, had lost self-control as a result of provocation; and

(b)        an ordinary person, thus provoked, would have been likely to react in the same way.

(4)        For the purposes of subsection (3)

(a)        the provocation may be by acts or words or both (whether by the deceased or another person); and

(b)        the ordinary person is assumed

(i)         to have any personal characteristics of the accused that affect the provocative quality of the acts or words giving rise to the loss of self-control; and

(ii)        to have a normal ability to exercise a reasonable measure of self-control.

(5)        A person who, but for this subsection, would be guilty of murder is not guilty of murder, but is guilty of culpable homicide, if at the time of the act leading to the death the person, although not entitled to a complete acquittal under section 27 (Mental disorder), was suffering from an abnormality of mind of such a nature as to diminish substantially the degree of responsibility.

(6)        A person cannot take advantage of subsection (5) unless the abnormality of mind giving rise to the diminished responsibility is admitted by the prosecution or proved on a balance of probabilities.

COMMENTARY

Culpable homicide can be divided into two broad categories. The first embraces (a) all unlawful deaths which result from assault, [1333] or other acts which, although not involving an assault, involve conduct which might reasonably involve personal injury (such as fireraising) [1334] and (b) reckless acts which are not in themselves unlawful, but which cause death (for example, recklessly installing a gas supply). [1335]  The second comprises cases of unlawful killing which would be murder, but for the presence of the mitigating factors of provocation or diminished responsibility.

Subsections (1) and (2) deal with the first category of culpable homicide - the category which is self-standing rather than the result of mitigation of murder. The common law concept of reckless culpable homicide is retained in subsection (1)(a), although the Act is more precise than the common law about what is meant by recklessness. [1336]  Although the common law assault rule has been criticised as being harsh, it is retained in subsection (1)(b). The justification is that, as assault is an intentional invasion of another’s bodily integrity, anyone who commits assault can reasonably be held liable for the consequences, however unexpectedly severe they may be. The rule in subsection (1)(c) on deaths caused by other unlawful acts likely to cause significant physical harm is more qualified, because of the potential range of such acts. The accused must have intended the act to cause the harm or have been reckless as to whether it would cause the harm.

Subsections (3) and (4) allow for a partial defence of provocation, the effect of which is to reduce what would otherwise be murder to culpable homicide. The law recognises that a person who has lost self-control due to another person’s behaviour is less blameworthy than the person who acts similarly, but in cold blood. Subsection (3) makes it clear that there is both a subjective and an objective dimension to the plea of provocation. The subjective aspect (set out in paragraph (a)) requires that at the time of the killing the accused had lost self-control as a result of the provocation. The objective aspect in paragraph (b) requires that “an ordinary person” faced with such provocation, would have been liable to react in the same way. Subsection (4) makes it clear that the provocation may be by acts or words or both. It also makes clear what qualities the ordinary person is assumed to have for this purpose.

Subsection (3) marks two significant developments on the common law. In the first place it recognises a wider range of provocative behaviour. The common law has insisted that, with one exception, only violence or the threat of violence could provide a foundation for a plea of provocation. [1337]  Verbal abuse and insults, however extreme, could not provide a foundation for a plea of provocation. The only exception to the rule requiring violence arose in the case of sexual infidelity. Here, an accused could base a plea of provocation on the sudden discovery (or confirmation) of sexual infidelity on the part of a person with whom he or she had a relationship upon which an expectation of fidelity could be based. [1338] Subsection (3)(a) recognises that provocation may arise not only from violence, but from “acts or words or both”. [1339]  Subsection (3)(b) reflects the existing law as explained in Drury v H.M. Advocate. [1340]  It requires that “an ordinary person” would have been liable to react as the accused did.

Subsection (4)(b) expands upon the reference to the “ordinary person”. It would be possible to approach the “ordinary person” requirement in a wholly objective or a wholly subjective manner. If the former approach were to be adopted, then there would be a risk that the “ordinary person” test would rule out the defence where, for example, certain characteristics of the accused made him or her more susceptible to the kind of provocation offered. (Taunting a person about particular physical or other characteristics not shared by other members of the community would be one example.) If, on the other hand, a wholly subjective approach were to be adopted, then this would run the risk of allowing the defence, for example, to a person who was peculiarly ill-tempered.

Subsection (4)(b) therefore attempts a compromise, by permitting the personal characteristics of the accused to be taken into account to the extent that they are relevant to the provocative quality of the acts or words giving rise to the loss of self-control, while at the same time disregarding them when considering the accused’s ability to exercise self-control. Subsection (4) therefore rejects the approach recently adopted in English law by the House of Lords in which the accused’s personal characteristics were held to be relevant not only to the quality of the provocation offered, but also to his ability to exercise self-control. [1341]

Subsection (5) provides for a plea of diminished responsibility. The mental abnormality resulting in diminished responsibility must normally be proved by the defence on a balance of probabilities. That will be appropriate if the accused is being tried for murder. However, if the prosecution decides to prosecute only for culpable homicide, accepting that the accused suffers from such a mental abnormality as to give rise to a clear case of diminished responsibility, it should be sufficient that the prosecution admits that the requirements are satisfied. The accused, in other words, should be able to take advantage of the prosecution’s decision to prosecute only for the lesser offence.

The defence of diminished responsibility has been recognised at common law since the case of Alexander Dingwall [1342] in 1867, and was recently reviewed by the High Court in the case of Galbraith v H.M. Advocate (No. 2). [1343]  In that case the High Court recognised that an accused person’s ability to determine and control his or her actions could be impaired by mental abnormality to such a degree as would reduce responsibility for killing from murder to culpable homicide. The mental abnormality could be medical, psychiatric or psychological in origin, and could be based in external causes such as sexual or other abuse. There must, however, be some recognised mental abnormality. That abnormality could take various forms. It may mean that the accused perceives matters differently from a normal person, or it might affect the ability to form a rational judgement as to whether a particular act was right or wrong, or it might affect the accused’s ability to decide whether to perform that act. [1344]  Subsection (5) thus reflects the common law as it appears to be developing in cases such as Galbraith.

The plea of diminished responsibility has traditionally been confined to murder cases because of the fixed penalty for murder. It enabled account to be taken of factors which, in the case of other offences, could be taken into account in mitigation of sentence. Under this Act the fixed penalty for murder is abolished. [1345]  There is, therefore, an argument that the plea of diminished responsibility is no longer necessary. We have retained it for the time being for labelling reasons. For a person to be labelled a murderer when that person was suffering from diminished responsibility may be considered harsh and unfair.

The law on diminished responsibility has recently been considered by the Scottish Law Commission in a very thorough discussion paper. [1346]  It may be that in the light of the responses to that discussion paper changes will be recommended. It would be a simple matter to amend this Bill to incorporate such changes, including the deletion altogether of the provision on diminished responsibility if that were to be thought appropriate.

Mental abnormality resulting in diminished responsibility must normally be proved by the defence on a balance of probabilities. That will be appropriate if the accused is being tried for murder. However, if the prosecution decides to prosecute only for culpable homicide, accepting that the accused suffers from such a mental abnormality as to give rise to a clear case of diminished responsibility, it should be sufficient that the prosecution admits that the requirements are satisfied. The accused, in other words, should be able to take advantage of the prosecution’s decision to prosecute only for the lesser offence. This is provided for by subsection (6). This also reflects the common law.

 

 

 

 


 



[1] Scottish Law Commission, Tenth Programme of Law Reform, Scot Law Com No 250 (2018) para 2.17 and following paragraphs. 

[2] Alison, Principles, i, 1; cf the classic definition of murder in Macdonald,  Criminal Law p 89: “Murder is constituted by any wilful act causing the destruction of life, whether intended to kill, or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences … In a case of death by poisoning where suicide and accident have been excluded by the evidence, there must nevertheless be positive evidence connecting the accused with the crime”. Thus suicide is not a crime.

[3] On one view (a broad view), the actus reus of murder and culpable homicide might be thought to be the same, namely the unlawful taking of another’s life.  However another approach to homicide, adopted by many legal systems and commentators, categorises the gravity of some unlawful killings on the basis of the objective factual circumstances of the death - in other words, on the basis of the actus reus - with less emphasis being placed on the mens rea:  see, for example, the discussion in ch 2, The structure of Scots homicide law, paras 2.26 to 2.31, and ch 5, Culpable homicide, paras 5.29 to 5.54.  This approach results in a much greater emphasis on the particular features of the actus reus when assessing the category or gradation of the gravity of the killing, and relies more heavily upon the objective facts of the killing when drawing a distinction between murder and culpable homicide (or its approximate equivalent of “manslaughter”).   

[4] But in contexts other than homicide, there are “strict liability” offences requiring no mens rea.  Examples include certain health and safety legislation, traffic regulations, and fishing regulations:  see “Elements of a Crime: Strict Liability”, The Laws of Scotland (Stair Memorial Encyclopaedia) Criminal Law 2nd Reissue para 97.  Even in the context of homicide, it is arguable that the doctrine of “constructive malice” is an attempt to introduce strict liability for a death caused in the course of another crime such as robbery: see para 4.36 and following paragraphs below.

[5] See the discussion and definitions in ch 2, The structure of Scots homicide law.

[6] See, for example, G Maher, “‘The Most Heinous of All Crimes’: Reflections on the Structure of Homicide in Scots Law” in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010).

[7] See generally ch 4, Murder.

[8] Either because the offence lacked the “wicked intent” or “wicked recklessness” of murder, or because what would otherwise amount to murder is palliated by a partial defence (provocation or diminished responsibility).  See ch 5, Culpable homicide, ch 10, Provocation, and ch 11, Diminished responsibility.

[9] Formerly a discretionary life sentence.

[10] See Gordon v HM Advocate 2018 SCCR 79 where an otherwise blameless man in his fifties smothered his terminally ill wife to end her suffering:  a plea to culpable homicide was accepted only because the accused was shown to be suffering from an abnormality of mind caused by a depressive disorder, and therefore was of diminished responsibility.  The sentencing judge imposed a custodial sentence of three years, which was quashed on appeal and an admonition substituted in recognition of the lesser moral culpability of the killing.

[11] See, for example, Burnett or Grant v International Insurance Company of Hanover Ltd 2019 SC 379, where a customer at licensed premises was placed in a chokehold by a door steward, and died of mechanical asphyxiation.  The steward was charged with murder.  At the trial, there was a conflict of medical evidence as to the cause of the deceased’s death, which the jury ultimately decided in favour of the accused, convicting him of assault.

[12] Who may, or may not, be assisted by expert evidence such as psychiatric or psychological evidence.

[13] See, for example, Professor L Farmer, “Structuring Homicide: A Broad Perspective” (Joint SLC, University of Strathclyde and University of Glasgow Seminar, 26 October 2018) available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/, referred to in ch 2, para 2.27.  See also the doctrine of “constructive malice”, with its emphasis on the physical act or acts (the actus reus) of the crime:  ch 4, Murder, para 4.36 and following paragraphs.

[14] Then the Lord Justice Clerk.

[16] A group of respected Scots law academics published a Draft Criminal Code for Scotland under the auspices of the Scottish Law Commission.  The Code was not restricted to homicide, and proposed three states of mind to establish criminal liability (intention, recklessness and knowledge).  Although the Code generated considerable interest (see E Clive, “Codification of the Criminal Law” in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010)), there has been no attempt to enact it.

[17] Abolished in the UK by the Murder (Abolition of the Death Penalty) Act 1965, although the death penalty remained for a limited group of crimes including treason, with abolition in respect of those crimes being effected by the Crime and Disorder Act 1998, s 36.

[18] The doctrine of constructive malice (arguably a type of strict liability) is discussed in ch 4, Murder.

[19] Announced in February 2018 as a medium-term project.

[20] With the exception of the defences of mental disorder (Criminal Procedure (Scotland) Act 1995, s 51A), and diminished responsibility (Criminal Procedure (Scotland) Act 1995, s 51B):  see generally ch 11, Diminished responsibility.

[21] See the discussion and definitions in ch 2, The structure of Scots homicide law.

[22] Provocation and diminished responsibility are partial defences which, if established, may reduce a crime of murder to one of culpable homicide:  see ch 10, Provocation, and ch 11, Diminished responsibility.

[23]  Complete defences include self-defence, accident, and justifiable homicide:  see ch 6, Defences: an introduction.

[24] And reduces what is prima facie murder to the lesser offence of culpable homicide.

[25] Scottish Law Commission, The Mental Element in Crime, Scot Law Com No 80 (1983).

[26] The Lionel Cohen Lecture, delivered on 19 May 1987 and published in (1988) 104 LQR 30.

[27] In particular, Lord Goff gave examples illustrating how the concept of “wicked recklessness” (the second branch of the Scots law definition of murder), worked well in practice, appearing to produce appropriate results, and avoiding both complicated dissertations to juries about foresight of consequences and artificial concepts such as “oblique intention” (a person has “oblique intention” when an event is a natural consequence of their voluntary act, and they foresee it as such.  A person is held to intend a consequence (obliquely) when that consequence is a virtually certain consequence of their action, and they knew it to be a virtually certain consequence:  R v Woollin [1999] 1 AC 82).

[28] Select Committee, Report on Murder and Life Imprisonment in England and Wales and Scotland (The Nathan Committee) Vol III - Oral Evidence, pt 2, and Written Evidence, 24 July 1989 (HL Paper 78-III), p 385 and following pages.

[29] G Gordon (MGA Christie (ed)), Criminal Law (3rd edn, 2001), para 23.21.

[32] 2011 SCCR 519:  see the passage quoted in para 1.4 above.

[33] Homicide in Scotland 2019-20 (Scottish Government, 2020), p 2, available at: https://www.gov.scot/publications/homicide-scotland-2019-2020/.

[34] Ibid.

[35] This was initially formed in 2005 by Strathclyde Police, and expanded into a national unit in 2006. Since 2008 it has been directly funded by the Scottish Government.

[36] Homicide in Scotland 2019-20 (Scottish Government, 2020), p7, available at: https://www.gov.scot/publications/homicide-scotland-2019-2020/.

[37] Ibid.

[38] Ibid, pp 1 and 2.

[39] Ibid, p 12.

[40] Ibid, p 12.

[41] Ibid, p 15.

[42] Ibid, p 14.

[43] Ibid, p11.

[44] Dr S Skott, “Homicide in Scotland: Context and Prevalence” (Joint SLC, University of Strathclyde and University of Glasgow Seminar, 26 October 2018) available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/. For further reading see S Skott, “Changing Types of Homicide in Scotland and their Relationship to Types of Wider Violence” (PhD thesis, University of Edinburgh 2018) available at: https://www.era.lib.ed.ac.uk/handle/1842/29642.

[45] S Skott, “Changing Types of Homicide in Scotland and their Relationship to Types of Wider Violence” (PhD thesis, University of Edinburgh 2018) p 10, available at: https://www.era.lib.ed.ac.uk/handle/1842/29642.

[46] Each case was categorised according to the date of its judgment.

[47] See: Scottish Law Commission, “Homicide appeals in Scotland: 2010 - 2019”, available at https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[48] The one exception being Petto v HM Advocate 2011 SCCR 519.

[49] Scottish Law Commission, Tenth Programme of Law Reform, Scot Law Com No 250 (2018), paras 2.20 and 2.22.

[50] Abortion Act 1967.

[51] Abortion is now a matter within the legislative competence of the Scottish Parliament: Scotland Act 2016, ss 53 and 72(7).

[52] For example, England and Wales (the Infant Life Preservation Act 1929);  and certain states in the USA (see AS Murphy, “A Survey of State Fetal Homicide Laws” (2014) 89(2) Ind LJ (art 8) 847, at p 864 and Table 1).

[53] For example, the Infanticide Act 1938, s 1, applying in England and Wales, which defines the offence as the killing of a child under 12 months by the mother in a situation where “the balance of her mind [was] disturbed by reason of her not having fully recovered from the effect of giving birth to the child”.  Other jurisdictions with similar legislation include Ireland, South Africa, New Zealand, and states in Australia.

[54] Unknown in Scots law.

[55] The age of criminal responsibility is currently 8 years (Criminal Procedure (Scotland) Act 1995, s 41) but is to be changed to 12 years in terms of the Age of Criminal Responsibility (Scotland) Act 2019, ss 1 and 84.  It should be noted that the UN Committee on the Rights of the Child considers that the age of criminal responsibility should be increased to 14 years.

[56] Sometimes referred to as “mercy killings”.

[57] The End of Life Assistance (Scotland) Bill, defeated in 2010 by 85 votes to 16, and the Assisted Suicide (Scotland) Bill, defeated in 2015 by 82 votes to 36.

[58] With a mandatory life sentence in the event of conviction.

[59] The papers would be marked “no pro” (ie no proceedings) in the Crown Office.  A useful outline of the difficult issues arising can be found in Ross v Lord Advocate 2016 SC 502.

[61] See Gordon v HM Advocate 2018 SCCR 79, where an otherwise blameless man in his fifties smothered his terminally ill wife to end her suffering.

[62] The law applicable where there appears to be more than one perpetrator involved in the commission of an offence.

[63] Contained in the Corporate Manslaughter and Corporate Homicide Act 2007.

[64] The Law Commission of England and Wales commenced a project on corporate criminal liability in November 2020, available at https://www.lawcom.gov.uk/project/corporate-criminal-liability/.

[65] Culpable Homicide (Scotland) Bill, promoted by MSP Claire Baker and seeking to have corporate wrongdoers treated with the same level of gravity and moral opprobrium as an accused in a homicide trial.  (The bill, which fell at Stage 1, is referred to briefly in ch 5, Culpable homicide, fn 24).

[66] On the basis that the provisions of the Bill relate to the reserved matters of (a) the operation and regulation of business associations (Section C1 (Business associations) of Schedule 5 to the Scotland Act 1998) and (b) the subject-matter of Part I of the Health and Safety at Work etc. Act 1974 (Section H2 (Health and safety) of Sch 5 to the Scotland Act 1998).  A letter dated 12 January 2021 from the Cabinet Secretary for Justice, Humza Yousaf MSP, to the Justice Committee of the Scottish Parliament confirms that the Scottish Government is also of the view that the provisions in the bill which give effect to the policy intention behind it are outwith the legislative competence of the Scottish Parliament.

[67] Road Traffic Act 1988 and Road Traffic Offenders Act 1988.

[68] Scotland Act 1998, s 29(2)(b), Sch 5, E1 (Road transport).

[69] See P Ferguson, “Wicked Recklessness” (2008) Jur Rev 1, at p 12;  R v Seymour [1983] 2 AC 493 at 495 (Lord Roskill) noting “the extreme reluctance of juries to convict motorists of manslaughter” with most prosecutions being based on breaches of road traffic legislation;  G Gordon in his commentary on HM Advocate v Purcell 2007 SCCR 520 questioning “why the Crown decided to abandon their longstanding practice [of prosecuting on the basis of road traffic legislation] and bring a murder charge …[when] until not all that long ago the Crown had great difficulty in persuading juries to convict of culpable homicide in road traffic cases …”.

[71] See the further discussion in chs 2 and 3 below.

[72] Criminal Procedure (Scotland) Act 1995, s 205.  The court must also fix a “punishment part” reflecting the aims of retribution and deterrence, but not risk to the public.  The convicted person cannot apply for parole until the punishment part has expired.  Thus if the punishment part is, say, 18 years, the convicted person must serve 18 years before applying for parole.  If the Parole Board (with the issue of “risk to the public” foremost in their deliberations) consider that the application should not be granted, the period in custody continues.  To date, the longest punishment part in Scotland has been 37 years (the notorious World’s End murderer, Angus Sinclair:  see Sinclair v HM Advocate [2016] HCJAC 24).

[73] Gordon v HM Advocate 2018 SCCR 79 (an otherwise blameless man in his fifties who smothered his terminally ill wife to end her suffering).

[74] Formerly a discretionary life sentence.

[75] Chaired by the Lord Justice Clerk, Lady Dorrian.

[76] Resulting in further individual Discussion Papers.

[77] Such as Alison, Hume and Macdonald.

[78] See para 5.17.

[79] See para 5.18.

[80] See para 5.19.

[81] See para 5.22.

[82] For example, one-punch killings, or killings in the course of escaping from the police, which could be statutorily defined as “murder” on the basis of the actus reus alone (ie on the basis of the objective facts alone) without the need for the prosecution to prove the mens rea (either wicked intent, or wicked recklessness not caring whether the victim lived or died).

[83] See E Clive, “Codification of the Criminal Law” in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010), pp 57 - 63.  Further advantages of replacing common law offences with statutory offences are outlined in the Draft Criminal Code for Scotland in the section entitled “About the draft code”, pp 1 to 8.

[84] For example, a court may be able to respond to a perceived problem with the law more quickly than a legislature, if the right case arises.

[85] See para 3.51.

[86] Ibid.

[87] See para 2.58, penultimate bullet point.

[88] See para 4.61 and following paragraphs.

[89] See para 5.26.

[90] See para 5.27.

[91] See para 5.28.

[92] E Clive, P Ferguson, C Gane and A McCall Smith, “Draft Criminal Code for Scotland” (2003). See also fn 16 above.

[93] Which continues to bind the UK post-Brexit.

[94] This order has been selected because the Scottish Criminal Case Reports include helpful commentaries by Sir Gerald Gordon, Sheriff Alastair N Brown and others, making the reports of particular importance to criminal practitioners and academics.   Justiciary Cases and Scots Law Times come next, being two long-established and highly respected series of case reports.  Finally, Scottish Criminal Law is a very welcome and informative but more recent arrival in the context of criminal law reporting. 

[95] See G Gretton, “Of Law Commissioning” (2013) 17(2) Edin LR 119. 

[96] Any view expressed is not attributable to any particular individual or branch of the profession.  Interviews took place throughout 2019.  Those involved were three High Court judges, two Advocate Deputes, and four defence QCs (one being a solicitor advocate QC).  All were experienced in High Court homicide trials.  Such informal consultation is of considerable assistance in the Commission’s research work.

[97] Together with academics and representatives from Victim Support Scotland and Police Scotland.  Our Advisory Group was set up in June 2018 and its membership can be found on our website at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[100] See: Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[101] See: Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[102] Ibid: homicide;  aggravated homicide;  pre-intentional homicide;  negligent homicide;  and homicide as a consequence of another crime.

[103] Ibid: murder; culpable homicide;  and infanticide.

[104] Ibid: murder; manslaughter (further subdivided into (i) unlawful and dangerous act manslaughter, and (ii) criminal negligence manslaughter);  and an offence of assault causing death.

[105] Ibid.

[106] Infanticide being a statutory offence where a mother causes the death of her child (under 12 months old) at a time when “the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child”:  Infanticide Act 1938, s 1.  Many other jurisdictions have an offence of “infanticide”, although with differing definitions: see Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/, and see, for example New Zealand, where the child can be any age up to 10 years.  Scotland has no such offence.

[107] See para 2.44 below.

[108] See Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[109] Law Reform Commission of Ireland, Homicide: Murder and Involuntary Manslaughter (LRC 87-2008), paras 5.46 and 6.10.

[110] There is no crime defined as “infanticide” in Scots law:  J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) at para 1.02.

[111] See the paper on culpable homicide prepared for the Commission by Professor C McDiarmid on the SLC Homicide web page.

[112] This classification, while adopted by some academic writers, is not used by practitioners in homicide trials or appeals (subject to one or two exceptions, for example, MacAngus and Kane v HM Advocate 2009 SCCR 238 para [29], a case concerning the illegal supply of drugs causing death).  In G Gordon (J Chalmers and F Leverick (eds)), Criminal Law (4th edn, 2017), para 31.01, voluntary culpable homicide is defined as “encompass[ing] those cases which would be murder, but for a partial defence of provocation or diminished responsibility being made out”.  Involuntary culpable homicide is defined as “the causing of death unintentionally but either with a mens rea which is regarded as sufficient to make the homicide culpable but not murderous, or in circumstances in which the law regards the causing of death as criminal even in the absence of any mens rea in relation to the death”.  Gordon further distinguishes between different types of involuntary culpable homicide based on whether the homicide occurred in the course of a lawful act by the accused, or an unlawful act.  He terms these “lawful act culpable homicide” and “unlawful act culpable homicide” (para 31.03).  A similar classification is used in some jurisdictions, including Ireland:  see Law Reform Commission of Ireland, Homicide: Murder and Involuntary Manslaughter (LRC 87-2008), para 4.04, and also Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.  For a criticism of Gordon’s classification, see G Maher, “‘The Most Heinous of All Crimes’: Reflections on the Structure of Homicide in Scots Law” in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010), p 235: “This terminology is confusing and should be avoided”.  

[113] Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006) para 1.13.

[114] See paras 2.5 and 2.6 below.

[115] See illustrations in ch 4, Murder, paras 4.24 to 4.25.

[116] In 2008, the Law Reform Commission of Ireland (LRCI) recommended that the fault element for murder be broadened to embrace reckless killing manifesting an extreme indifference to human life (which would bring the second branch more in line with Scots homicide law):  see para 2.50 below.  The recommendation has not been implemented.

[117] With three forms of intent:  dolus directus, dolus indirectus, and dolus eventualis:  see Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[118] Crimes Act 1961, ss 160, 167, 171 and 178. See Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/, and para 2.38 below.

[119] (5th edn, 1948) p 89 - a definition invariably used in practice: see Drury v HM Advocate 2001 SCCR 583, para [2] (Lord Nimmo Smith). 

[120] Further styles, templates, and wordings can be found in the: Judicial Institute for Scotland, Jury Manual, a bench-book produced by a committee of judges and others in order to provide guidance for procedure at jury trials.

[121] A word inserted by a five-judge bench in 2001 in Drury v HM Advocate 2001 SCCR 583:  see ch 4, Murder, for a discussion about the effect of that insertion.

[122] A definition offered in G Gordon (J Chalmers and F Leverick (eds)), Criminal Law (4th edn, 2017) para 30.19; in fn 93, the author explains that the definition was approved by Lord Justice Clerk Ross in Scott v HM Advocate 1995 SCCR 760, and adds:  “To the philosopher, it may be that no state of mind which does not include an intention to kill can be equated with one which does include such an intention.  But the law is concerned rather with an equivalence in the emotional attitude, the indignation, of the average man, judge or juryman, who regards the wickedly reckless man in the same way as he regards the intentional killer.”

[123] In a lecture delivered on 19 May 1987 and published in (1988) 104 LQR 30.

[124] Unlike the courts in England and Wales, which became involved in complex and sophisticated discussions concerning the definition of intention.  For example, a person has “oblique intention” when an event is a natural consequence of their voluntary act, and they foresee it as such.  A person is held to intend a consequence (obliquely) when that consequence is a virtually certain consequence of their action, and they knew it to be a virtually certain consequence:  R v Woollin [1999] 1 AC 82.  Lord Goff refers to JE Stannard, “Mens Rea in the Melting Pot” (1986) 37 NILQ 61 at pp 70-71; RA Duff, “The Obscure Intentions of the House of Lords” [1986] Crim LR 771 at p 778;  and AKW Halpin, “Intended Consequences and Unintentional Fallacies” (1987) 7 OJLS 104 at p 114. 

[125] Then Professor of Law at the University of Edinburgh.

[126] RAA McCall Smith, “Homicide”, 7 Stair Memorial Encyclopaedia (1995), para 267, fn 2.  Professor McCall Smith refers to RA Duff, Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (1990) for a discussion on intention to kill.

[127] E Clive, P Ferguson, C Gane, and A McCall Smith, in their Commentary to s 9, Intention.  (For the background to the Code, see ch 1, Introduction, para 1.4, fn 16).

[128] The authors refer to the difficulties encountered by the English Courts in R v Hancock and Shankland [1986] AC 455; R v Moloney [1985] AC 905;  and R v Nedrick [1986] 3 All ER 1.

[129] Although see some recent criticism in paras 2.26 to 2.31 below.

[131] 2007 SCCR 520.  The ruling was given in the course of a jury trial, and not in an appeal following upon conviction.

[132] See ch 4, Murder.

[133] Drury, para [13] (Lord Justice General Rodger).

[134] Ross v Lord Advocate 2016 SCCR 176, para [29] (Lord Carloway).

[135] See the paper prepared for the Commission by Professor C McDiarmid, on the SLC Homicide web page.

[136] In HM Advocate v Hartley 1989 SLT 135, at p 136.

[137] See ch 10, Provocation, and ch 11, Diminished responsibility.

[138] The category of “voluntary culpable homicide” referred to in G Gordon (J Chalmers and F Leverick (eds)), Criminal Law (4th edn, 2017), para 31.01:  see fn 12 above.

[142] At para [15].

[143] Report of the Royal Commission on Capital Punishment 1949-1953, Cmd 8932 (1953), quoted in G Gordon (J Chalmers and F Leverick (eds)), Criminal Law (4th edn, 2017) para 30.18.

[145] G Gordon (J Chalmers and F Leverick (eds)), Criminal Law (4th edn, 2017) para 30.21.

[146] Or, as it is sometimes known, “the liability line”.

[147] Although the author suggests that there should be some constraint, “so that it is not left entirely to the intuition of individual jury members”: C McDiarmid, “Something Wicked This Way Comes:  The Mens Rea of Murder in Scots Law” (2012) 4 Jur Rev 283 at p 294.

[148] See Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[149] American Law Institute, Model Penal Code and Commentaries, Part 1, Articles 210 to 213.6 at Art 210.2 cmt 4 p 22.

[150] See chs 6 to 11 below.

[151] (2008) 71(2) MLR 217.

[152] Particular concern may focus on media reporting, with possible gratuitous sensationalism.

[153] Thus enabling all who rely upon the record, including sentencing judges, potential employers, and statisticians, to make appropriately informed decisions:  cf the observations of the authors of the Draft Criminal Code for Scotland (2003) at p 5:  “The appropriate labelling of offences is important.  It makes the law more transparent to the public, and also facilitates reference to previous convictions and the recording of statistics.”

[154] A Ashworth, “The Elasticity of Mens Rea” in CFH Tapper (ed), Crime, Proof and Punishment:  Essays in Memory of Sir Rupert Cross (1981) at p 53;  G Williams, “Convictions and Fair Labelling” (1983) 42 CLJ 85.

[155] Op cit p 56.

[156] Symbolising a strong degree of condemnation by society.  The Law Reform Commission of Ireland concluded that the term should be reserved for the most heinous or culpable killings (Law Reform Commission of Ireland, Homicide: Murder and Involuntary Manslaughter (LRC 87-2008) at paras 1.01 and 1.06).

[157] Juries’ reluctance to convict an offender in a fatal road traffic incident as a “murderer” is perhaps an example of such public opinion.

[158] Examples might include the Alesha MacPhail murder (abduction of a 6-year-old girl when she was asleep in her grandparents’ home in Bute, followed by abuse and murder);  the Kriss Donald murder (abduction of a 14-year-old boy in Glasgow, with a prolonged period of abuse and torture before he was murdered);  the Limbs in the Loch murder (a young man working as a supermarket shelf-stacker was befriended after a social event, taken to the perpetrator’s home, murdered and hacked into pieces, his remains being found at various locations in Scotland including the head on Barassie Beach, and limbs in Loch Lomond); the World’s End murders (the notorious serial killer who murdered two young women but escaped detection for over 30 years).

[159] See ch 1, para 1.30.

[160] Although an order for lifelong restriction (formerly a discretionary life sentence) may be imposed.

[161] An assessment carried out by a jury of lay persons, in some (but not all) cases assisted by expert psychiatric or psychological evidence.

[162] See para 2.14.

[163] Professor L Farmer, “Structuring Homicide: A Broad Perspective” (Joint SLC, University of Strathclyde and University of Glasgow Seminar, 26 October 2018) available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/. Professor Farmer referred to statistics drawn from a selection of 6 European states demonstrating that Scotland has the highest percentage of life prisoners per head of population.

[164] Cf G Binder, “Homicide” in MD Dubber and T Hornle (eds), The Oxford Handbook of Criminal Law (2014) p 725: “Most homicide does not result from a conscious decision to kill … Moreover the fatal conduct we judge most antisocial is not necessarily the conduct committed with most deliberation.”

[165] Illustrations based on the German Criminal Code, s 211.

[166] Gordon, however, states that, if the use of “lethal weapons” is itself sufficient to constitute the mens rea of murder, then in his view, they are “unsatisfactory”.  For one thing, he notes, the term “lethal weapon” is not helpful as murder can be committed by kicking or punching without the use of any weapons at all.  Gordon submits that the correct question to ask is not “Did A use a lethal weapon?” but “Did A act with wicked recklessness?” in relation to the particular set of events charged: G Gordon (J Chalmers and F Leverick (eds)), Criminal Law (4th edn, 2017) para 30.23.

[167] Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006).

[168] Professor Farmer explained that the standard view, taught to students, was that there were two categories of criminal homicide: murder and culpable homicide.  The actus reus was always the same, namely “Any wilful act causing the destruction of life …” (Macdonald, Practical Treatise, p 89).  The crimes were differentiated on the grounds of mens rea, with a categorisation of ascending seriousness from reckless killings (probability plus foresight) to more serious intentional killings (murder).  However Professor Farmer stated that he had problems with such an approach, one reason being the “persistence of forms of constructive liability”.  He referred to MacAngus and Kane v HM Advocate  2009 SCCR 238.

[169] Drury v HM Advocate 2001 SCCR 583. He added that the partial defence of “provocation” caused difficulties, and questioned how an intentional killing could be treated as culpable homicide.

[170] For example, a “one-punch” homicide, where the deceased fell after being punched and suffered a fatal head injury.

[171] See ch 1, para 1.19.

[172] Such as the USA and Italy: see Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/ .

[173] Lord Kilbrandon was Chair of the Scottish Law Commission from 1965 until his elevation to the House of Lords in 1971.

[174] Hyam v DPP [1975] AC 55 at 98, where a woman had set fire to the house of her former lover’s new fiancée, causing the death of the fiancee’s two children.  The question was whether this was, in English homicide law (which differs in material respects from Scots homicide law) the crime of “murder”, or the crime of “manslaughter”.

[175] Importantly, this is a reference to the doubts and difficulties surrounding the crime of murder as defined in English (not Scottish) homicide law.

[176] E Clive, P Ferguson, C Gane and A McCall Smith:  see fn 16 in ch 1, Introduction.

[177] Law Commission, A New Homicide Act for England and Wales? An Overview, Law Com CP No 177 (2005) paras 1.40 to 1.47.

[178] Where the accused seeks to attribute all or some blame to the deceased, who for obvious reasons is unable to give his or her side of the story.  This approach has caused great grief to family and friends of the deceased.

[179] Sentencing was outside the LCEW’s remit.

[180] Law Reform Commission of Ireland, Homicide: Murder and Involuntary Manslaughter (LRC 87-2008), para 1.21.

[181] Ibid, para 1.24.

[182] See Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[183] Crimes Act 1961, s 168.

[184] See the discussion concerning murder and constructive malice in ch 4, Murder.

[185] Essentially making manslaughter a residual offence, as is its equivalent in Scotland (namely culpable homicide).

[186] Ie the limited number of practitioners who participated in our informal consultations and the members of our Advisory Group.

[187] Although it should be noted that they were not asked that specific question.

[188] The Home Office Minister, Fiona MacTaggart.  See Law Commission, A New Homicide Act for England and Wales? An Overview, Law Com CP No 177 (2005) para 1.2.

[189] See Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006).

[190] Murder;  manslaughter;  infanticide; and certain specific offences such as assisting suicide and causing death by dangerous driving:  see Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006), para 1.12.

[191] Ibid, para 2.50.

[192] Ibid, para 2.70.

[193] Ibid, para 2.163.

[194] Ibid, paras 7.42 and 8.23.

[195] Law Commission, A New Homicide Act for England and Wales? An Overview, Law Com CP No 177 (2005).

[196] Initially the LCEW designated as first degree murder those cases where there was (i) intention to kill;  ultimately in their Report they included as first degree murder those killings in category (ii), ie “unlawful killings committed with an intent to do serious injury where the killer was aware that his or her conduct involved a serious risk of causing death.”

[197] Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006):  see fns 67 and 79 above.

[198] Law Commission, A New Homicide Act for England and Wales? An Overview, Law Com CP No 177  (2005) paras 1.13 to 1.14.

[199] Ibid, paras 1.15 to 1.18.

[200] As a product of judge-made law supplemented by Parliament’s sporadic interventions, resulting in a lack of clarity and coherence:  ibid, para 1.19.

[201] Ibid, paras 1.21 to 1.22.

[202] Ibid, paras 1.24 to 1.26.

[203] Ibid, para 1.26: “For example, the partial defence of provocation may enable a person to be convicted of manslaughter rather than murder if he or she kills as a result of losing his or her temper when insulted. By contrast, a person who kills in response to a threat of serious unlawful violence is guilty of murder if he or she uses what is considered to be unreasonable force. No partial defence is available”: cf a similar problem in Scots homicide law, discussed in ch 8, Specific issues in relation to self-defence.

[204] In other words, an ability to impose a sentence other than a life sentence.

[205] Law Commission, A New Homicide Act for England and Wales? An Overview, Law Com CP No 177 (2005) para 1.28 and following paragraphs.

[206] This is a paraphrase of the relevant passages in the Overview document;  see too ibid, para 5.1:  “In Part 1 we said that the fundamental weakness of the law of homicide is that its structure is not designed to ensure that different levels of criminality are accurately graded and labelled.  In this Part we set out and explain the framework that we are provisionally proposing for grading and labelling homicide offences.”

[207] Nevertheless, as pointed out in para 1.33: “… the grading and labelling of offences is not a science.  People of reasonable opinions can and do take a different view as to whether one form of killing should be placed in the same or a different category from other forms of killing.  Where the lines are to be drawn between the different categories is only in part a matter of legal reasoning.  Ultimately, it is a matter of political judgment informed by public debate.”

[208] Law Reform Commission of Ireland, Homicide: Murder and Involuntary Manslaughter (LRC 87-2008), preceded by two consultation papers published in 2001 and 2007.

[209] Although again, as in England and Wales, there is an additional homicide offence of “infanticide”.

[210] The Criminal Justice Act 1964, s 4.

[211] To include, for example, the formulation of “extreme indifference to the value of human life”: see Law Reform Commission of Ireland, Homicide: Murder and Involuntary Manslaughter (LRC 87-2008), Introduction, para 4.

[212] Ibid, para 5, referring to Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006).

[213] See para 2.45 above.

[214] E Clive, P Ferguson, C Gane and A McCall Smith (see fn 16 in ch 1, Introduction).

[215] The Draft Code definitions are discussed in ch 4, Murder, and ch 5, Culpable homicide.

[216]  Ie the practitioners participating in our informal consultations and our Advisory Group.

[217]  One interviewee pointed out that Scots homicide law in effect already has a five-category structure, namely intentional murder, wicked reckless murder, culpable homicide where the mens rea fell short of murder, culpable homicide by provocation, and culpable homicide by diminished responsibility.  The interviewee pointed out that further fine tuning of culpability and mitigation could be acknowledged and reflected in sentencing.

[218] Juries cannot be asked about their verdicts (Contempt of Court Act 1981, s 8 as amended by the Criminal Justice and Courts Act 2015), but practitioners explained that they inferred understanding from (i) the lack of questions from the jury about the concepts of “murder” and “culpable homicide”, in contrast with the more frequent questions concerning “concert”, “the Moorov doctrine:, and “corroboration”;  and (ii) the generally sensible and apparently evidence-based jury verdicts in homicide cases.  There were few successful appeals in terms of the Criminal Procedure (Scotland) Act 1995, s 106(3)(b) on the ground that the verdict was one which “no reasonable jury, properly directed, could have returned”.

[219] Ie provocation or diminished responsibility: see chs 10 and 11.

[220] Ie additional words added to the charge in the indictment.

[221] Which would provide a useful insight into the jury’s mind in any subsequent sentencing or appeal procedure.

[222] The necessary number for a majority verdict.

[224] Which has five categories, namely homicide, aggravated homicide, pre-intentional homicide, negligent homicide, and homicide as a consequence of another crime.

[225] See Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/:  there may be first, second, and third degree murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, and other levels of homicide crime.

[226] The Corte d’Assise.

[227] These are features very different from the Scots trial system, where the 15 jurors are intentionally isolated from the judge, receiving guidance  only from counsel’s speeches (both prosecution and defence), and directions in law from the judge.  A Scots jury does not have to give reasons for the verdict, an aspect of the Scottish jury system which was challenged (unsuccessfully) in Strasbourg as being a breach of the European Convention on Human Rights, Art 6:  see Judge v UK Application No 35863/10, 2011 SCCR 241.

[228]  The professional judges should, it is hoped, be better placed than lay persons to understand and apply a more complex multi-tier structure.  The influence exerted on members of the jury by a legally trained professional judge might be thought to be considerable. 

[229] Professor J Horder, “Issues in Reforming Homicide Law: The English Experience” (Joint SLC, University of Strathclyde and University of Glasgow Seminar, 26 October 2018) available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[230] See Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[231] R v Woollin [1999] 1 AC 82, at p 97.

[232] Lord Goff, “The Mental Element in the Crime of Murder” (1988) 104 LQR 30, at p 57.

[233] Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006) paras 2.117 to 2.121.

[234] See, for example, R Kage, Who Judges? Designing Jury Systems in Japan, East Asia, and Europe (2017);  R Renucci QC, the then President of the Scottish Criminal Bar Association, responding to a government proposal to have trials without juries during the Coronavirus crisis in 2020, and reported in the Scottish Legal News, Tuesday 31 March 2020 where he referred to Scotland as “a modern and forward thinking democratic country which values its traditions and its citizens’ fundamental human rights”, and deprecated any temporary departure from the 600 years of “the fundamental principle of the right of … citizens charged with serious offences to a trial by a jury of their peers within a reasonable time”.

[235] See G Gordon (J Chalmers and F Leverick (eds)), Criminal Law (4th edn, 2017) para 30.21;  Lord Goff, “The Mental Element in the Crime of Murder” (1988) 104 LQR 30;  C McDiarmid, “Something Wicked This Way Comes:  The Mens Rea of Murder in Scots Law” (2012) 4 Jur Rev 283.

[236] Adopting the same degree of specification as that demonstrated in the recommendations made by the LCEW, set out in para 2.45 above.

[237] A UK statute, The Corporate Manslaughter and Corporate Homicide Act 2007, created the offence of “corporate homicide”.That is an offence arising from a form of negligence, namely “gross breach of a relevant duty of care owed … to the deceased”; but the Act applies only to corporate entities (such as limited companies, government departments, police forces, partnerships, trade unions and employers’ associations that are employers:  s 1 and sch 1).  The Act does not apply to natural persons.  There appear to have been no prosecutions in Scotland under the 2007 Act, although there have been prosecutions in England and Wales:  see S Field, “Ten Years On:  The Corporate Manslaughter and Corporate Homicide Act 2007:  Plus Ca Change?” (2018) 29(8) ICCLR 511, Table 1.  There are thought to be considerable problems in enforcing the Act.  In Scotland, private members’ bills have sought to address those problems by re-defining culpable homicide:  a Bill in 2014 proposed by Richard Baker MSP was unsuccessful.  The Culpable Homicide (Scotland) Bill, proposed by Claire Baker MSP, sought to have corporate wrongdoers treated with the same level of gravity and moral opprobrium as an accused in a homicide trial.  The bill fell at Stage 1 on 21 January 2021: for more detail see ch 5, Culpable homicide, fn 24.

[238] Nyadam v The Queen [1977] VR 430 at 444-445.  See Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[239] Defined in the CPC as “the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.”  The MPC and the NYPC have lengthier definitions:  see Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/ .

[240] Hyam v DPP [1975] AC 55.

[241] Ibid, at p 96.

[242] See para 2.2 above, and Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[243] Such as was recommended in: Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006).

[244] Guilty, not guilty, or not proven.

[245] At least eight must be in favour of guilty of a verdict of “murder” or “culpable homicide”.

[246] Thus if the bipartite structure of homicide were to be changed, one possible consequence might be a change in the structure of the bench trying the homicide - possibly to a professional lawyer jury, or at least a mixed jury:  cf the bench for homicide trials in Italy, para 2.55 above.

[247] Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006) paras 2.117 to 2.121.

[248] A suggested solution was as follows:

“2.120 … under a three-tier structure, on a charge of first degree murder, it would be perfectly acceptable in an appropriate case to discharge a jury that cannot agree on a verdict of first degree murder from giving a verdict on that charge.  The jury can instead be invited to consider a new count of second degree murder.  A similar procedure can be followed in any case where a jury is split on the question whether D [the defendant] had one of the fault elements for second degree murder or only one of the fault elements for manslaughter.”

[249] See for example J Chalmers and F Leverick, “Methods of Conveying Information to Jurors: An Evidence Review” (Scottish Government, 2018).

[250] See para 2.4 above.

[251] Referred to in paras 2.35 and 2.52 above, and chs 4 and 5 below.

[252] See E Clive, “Codification of the Criminal Law” in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in honour of Sir Gerald Gordon (2010) p 54.

[253] Cf the observations in R v Woollin [1999] 1 AC 82 (Lord Hope):  “I attach great importance to the search for a direction which is both clear and simple.  It should be expressed in as few words as possible.  That is essential if it is to be intelligible.  A jury cannot be expected to absorb and apply a direction which attempts to deal with every situation which might conceivably arise ….”

[254] Thus the sentence imposed for a “one-punch” homicide may be very different from the sentence imposed for a death caused by a brutal and sustained kicking; and the sentence imposed in respect of a mercy killing involving a hitherto blameless spouse suffering from diminished responsibility (Gordon v HM Advocate 2018 SLT 278) may be very different from that imposed where no plea of diminished responsibility could be made.

[255]  See para 2.26 and following paragraphs.

[256] Crimes Act 1961, s 168(2). See also Chapter 5, Culpable homicide, para 5.31.

[257] See also Chapter 5, Culpable homicide, para 5.46.

[258] Criminal Code, s 231(4). Framing the offence in this way would enable a murder conviction in cases such as the recent English case of R v Long, Bowers and Cole (the PC Harper case) where three people were convicted of manslaughter after a policeman became entangled in a tow rope and was dragged behind a car to his death.

[259] Criminal Code, s 231(5).

[260] German Criminal Code, ss 211 - 216, referred to in the presentation by Professor L Farmer, “Structuring Homicide: A Broad Perspective” (Joint SLC, University of Strathclyde and University of Glasgow Seminar, 26 October 2018) available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[261] For example, in the state of Georgia, a homicide is “first degree homicide by vehicle” if the driver “unlawfully met or overtook a school bus;  unlawfully failed to stop after a collision;  was driving recklessly;  was driving while under the influence of alcohol or drugs;  failed to stop for, or otherwise was attempting to flee from, a law enforcement officer;  or had previously been declared a habitual violator”: AM Trapp, Vehicular Homicide Laws (2004). See also Chapter 5, Culpable homicide, paras 5.33 to 5.37.

[262] With a view to achieving both plain English and fair labelling: E Clive, P Ferguson, C Gane, and A McCall Smith, “Draft Criminal Code for Scotland” (2003) p 5; see also ch 1, Introduction, para 1.4 and fn 16.

[263] Representing some of the “English-speaking jurisdictions [which] may have attained greater maturity in their jurisprudence on [the topic of the mental element in murder and culpable homicide in contemporary … law] than Scotland has.”: Petto v HM Advocate 2011 SCCR 519 para [21]. 

[264] Ch 2, The structure of Scots homicide law para 2.20 and following paragraphs.

[265] Draft Criminal Code for Scotland, p 5.

[266] Mainly brief and “ordinary language” definitions provided by the Concise Oxford Dictionary.  The phrase “wicked recklessness” is not defined in standard dictionaries.  The reader may wish to consult more detailed dictionaries, including legal dictionaries such as Stroud’s Legal Dictionary.

[267] See para 2.6 and fn 22 in ch 2.

[268] See, for example, para [21] of Petto v HM Advocate 2011 SCCR 519, quoted in para 1.4 above.

[269] But see Chapter 8, Specific issues in relation to self-defence, para 8.15, fn 22.

[270] The mens rea for the crime of assault is “evil intent”:  Macdonald, p 115;  Lord Advocate’s Reference (No 2 of 1992) 1993 JC 43;  cf analysis in TH Jones and I Taggart, Criminal Law (7th edn, 2018), paras 9-15 to 9-16.

[271] Some commentators categorise a killing following an assault where the perpetrator lacked the mens rea for murder as “unlawful act culpable homicide”:  see para 2.3, fn 12, above.

[273] At para [21].

[274] Principles that were “shaped largely in the days of the death penalty, that are inconsistent and confused and are not yet wholly free of the doctrine of constructive malice”.

[275] (1988) 104 LQR 30.

[276]Ibid, at p 58.

[277] G Gordon (J Chalmers and F Leverick (eds)), Criminal Law (4th edn, 2017) para 30.21.

 

[278] Ibid.

[279] 2011 SCCR 583.

[280] Hume, Commentaries.

[281] The first edition of Hume having been published in 1797.

[282] C McDiarmid, “Something Wicked This Way Comes: The Mens Rea of Murder in Scots Law” (2012) 4 Jur Rev 283, at pp 289 and 290. 

[283] MGA Christie, “The Coherence of Scots Criminal Law:  Some Aspects of Drury v HM Advocate” (2002) 6 Jur Rev 273 at pp 283-284.

[284] A concern shared by PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014) para 9.16.3.

[285] V Tadros, “The Scots Law of Murder” in J Horder (ed) Homicide Law in Comparative Perspective (2007) at pp 205-206.

[286] See fn 1 in this chapter, above. Relevant excerpts from the Draft Criminal Code can be found in the Appendix to this Discussion Paper.

[287] The Draft Code, p 5.

[288] The Draft Code, s 37.  See the Appendix to this Paper for extracts of the relevant sections of the Code referred to in this para.

[289] The authors refer to CHW Gane and CN Stoddart, A Casebook on Scottish Criminal Law (3rd edn, 2001) pp 402-403.

[290] The commentary notes:  “(i) … the Crown must show that the actor was aware of the likely consequences of his or her conduct.  It would not be sufficient, in order to prove intention, for the Crown to show that any reasonable person would have realised that this was the case (ii) … a high degree of probability is required … It is not enough … to show that the accused knew that a particular result was ‘likely’ or ‘highly likely’”: Hyam v DPP [1975] AC 55 (one of the cases referred to by Lord Goff in (1988) 104 LQR 30).

[291] The definition thus includes (i) the deliberate risk-taker, and (ii) the person who is not aware of the risks, but who, judged by certain objective standards, ought to be aware.

[292] Law Commission, Criminal Law: Report on the Mental Element in Crime, Law Com No 89 (1978), para 99;  Scottish Law Commission, The Mental Element in Crime, Scot Law Com No 80 (1983).

[293] Scottish Law Commission, The Mental Element in Crime, Scot Law Com No 80 (1983) para 1.7.

[294] Ibid, paras 1.8, 4.1 and following paragraphs.  The LCEW recommendation for “intention” was “A person should be regarded as intending a particular result of his conduct if, but only if, either he actually intends that result or he has no substantial doubt that the conduct will have that result.”

[295] Ibid, para 2.4.

[296] Ibid, para 2.1.

[297] Ibid, para 2.14.

[298] Petto v HM Advocate 2011 SCCR 519, at para [21].

[299] See: Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[300] MPC, s 210.2.

[301] NYPC, s 125.25.

[302] CPC, ss 187 and 188.

[303] Ibid s 188(a)(1).

[304] Ibid s 188(a)(2).

[305] For example, see: D Crump, “What Does Intent Mean?” (2010) Hofstra LR 1059 at p 1074; C Finklestein, “Two Models of Murder: Patterns of Criminalisation in the United States” in J Horder (ed) Homicide Law in Comparative Perspective (2007) at p 87.

[306] In the case of People v Feingold 852 NE2ed 1163 (NY 2006), it was held that “depraved indifference is best understood as an utter disregard for the value of human life - a willingness to act not because one intends harm, but because one simply doesn’t care whether grievous bodily harm results or not”.

[307] No proof of a fault element is required:  NYPC, s 125.25(3).

[308] CPC, s 189.

[309] MPC, s 210.2(1)(b).

[310] CPC, s 192(b).

[311] Each Australian state has its own homicide law.  The law of New South Wales is codified in statute.  For more detail, see: Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[312] Crimes Act 1961, s 160; and see also, ch 2 para 2.38.

[313] Listed in the Crimes Act 1961, s 168(2), namely treason, espionage, sabotage, piracy, piratical acts, escape or rescue from prison/lawful custody/detention, sexual violation, murder, abduction, kidnapping, burglary, robbery and arson).

[314] Outlined in more detail in: Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[315] Ibid.

[316] There are also certain specific homicides, such as causing death by dangerous driving;  assisting suicide.

[317] A concept criticised by the Law Commission of England and Wales as causing difficulties:  see Law Commission, A New Homicide Act for England and Wales? An Overview, Law Com CP No 177 (2005) paras 1.13 to 1.14.

[318] R v Cunningham [1982] AC 566.

[319] R v Woollin [1999] 1 AC 82.

[320] Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006) para 2.1 and following paragraphs.

[321] Together with specific offences such as causing death by dangerous driving, and assisting suicide.  See ch 2, The structure of Scots homicide law.

[322] Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006) para 2.13.

[323] 2007 SCCR 520; see discussion in ch 4, Murder.

[324] A Ashworth, “Principles, Pragmatism, and the Law Commission’s Recommendations on Homicide Law Reform” (2007) Crim LR 333 at pp 336, 338.

[325] Law Reform Commission of Ireland, Homicide: Murder and Involuntary Manslaughter (LRC 87-2008) para 5.46, involving a fatal assault where “a reasonable person would not have foreseen that death or serious injury was likely to result in the circumstances”.

[326] C Fennell, “Intention in Murder:  Chaos, Confusion and Complexity” (1990) 41(4) NILQ 325 at p 335.  This would be comparable to the approach taken in Scots law.  There are two advantages:  (i) recourse to circumstantial evidence when direct intent cannot be proved;  and (ii) providing a second and distinct mens rea for intent, rather than artificially expanding the parameters of intent (thus avoiding complex discussions and analyses concerning intent).  See: Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[327] Comprising three High Court judges, two Advocate deputes, three defence QCs, and one solicitor-advocate QC.

[328] Contempt of Court Act 1981, s 8 as amended by the Criminal Justice and Courts Act 2015.

[329] In particular, it was pointed out that there were few successful appeals in terms of the Criminal Procedure (Scotland) Act 1995, s 106(3) where the appellant had to satisfy the court that the verdict was one which “no reasonable jury, properly directed, could have returned”.

[330] Cf the observations of Lord Goff in “The Mental Element in the Crime of Murder” (1988) 104 LQR 30. 

[331] As introduced in 2001 by the five-judge bench in Drury v HM Advocate 2001 SCCR 583.

[332] Thus agreeing with the critical analysis noted in J Chalmers, “Collapsing the Structure of Criminal Law” 2001 SLT (News) 241, pp 244-245; and in ch 4 below.  (By contrast, some other practitioners thought that the insertion of “wicked” was a correct reflection of the law).

[333] The Judicial Institute for Scotland, Jury Manual suggests a direction in the following terms: “‘Wicked’ in the context of intention has no particular legal significance.  Intending to kill someone is obviously wicked.  The word ‘wicked’ has no particular meaning.”

[334] Para 2.4.

[335] Travaux preparatoires are drafts and other documents drawn up in the course of preparing the final text of a legal instrument which reflect the substance of the discussions between and the views of the persons who adopted the instrument:  see The Law Society of Scotland, Glossary of Scottish and European Union Legal Terms and Latin Phrases (2nd edn, 2003).

[336] Cf the views of the authors of the Draft Criminal Code for Scotland (2003), and see para 2.4 above.

[337] Petto v HM Advocate 2011 SCCR 519.  The circumstances were similar to those in Hyam v DPP [1975] AC 55, where a fire-raising which killed two children had been started by a woman who was trying to frighten her ex-lover’s new fiancée, and who had not intended to kill anyone.

[338] 2007 SCCR 520. A summary of the facts in Purcell can be found in para 4.16 and following paragraphs.

[339] See para 2.5 and following paragraphs.

[340] A ruling which many considered to be a major innovation in the definition of wicked recklessness:  see ch 4, Murder, para 4.23.  It was perhaps a matter of regret that the case did not reach an appeal court, as the decision was made mid-trial, and was followed by the accused’s plea of guilty to culpable homicide:  see ch 4, para 4.22;   J Chalmers, “The True Meaning of ‘Wicked Recklessness’” (2008) 12(2) Edin LR 298-302;  and Scottish Law Commission, The Mental Element in Crime, Scot Law Com No 80 (1983) para 2.32.

[341] E Clive, “Codification of the Criminal Law” in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010), at pp 62-63.

[342] Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006).

[343] Section 37(1):  A person who causes the death of another person with the intention of causing such a death, or with callous recklessness as to whether such a death is caused, is guilty of the offence of murder.

[344] Possibly reflected in the judiciary.

[345] Unless a vehicle had obviously been used as a weapon:  see ch 4, Murder, para 4.20.

[346] See ch 4, Murder, para 4.18 and following paragraphs.

[347] All as discussed in greater detail in ch 4, Murder.

[348] See ch 4, Murder, para 4.16 to 4.34.

[349] See paras 3.6 and following paragraphs.

[350] See the definitions of “wicked recklessness” listed in ch 4, Murder, para 4.19.

[352] See MGA Christie para 3.14 above; see too G Gordon (MGA Christie (ed)), Criminal Law (3rd edn, 2001) para 23.13; PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014) para 9.16.3.

[353] 2011 SCCR 735.  See for example G Gordon (J Chalmers and F Leverick (eds)), Criminal Law (4th edn, 2017) and PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014) para 9.16.4.

[354] See para 3.22 and following paras above, and: Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/ . As noted in relation to para 3.23 above, the New York Penal Code provides for second degree murder where “under circumstances evincing a depraved indifference to human life [a person] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person [emphasis added]”;  and see the court’s analysis of “depravity” in People v Feingold 852 NE2ed 1163 (NY 2006).

[355] See paras 3.25 to 3.30 above, and: Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[356] Such as the whole or part of the Draft Criminal Code for Scotland, or the whole or part of New Zealand’s codified homicide law.

[357] Ie a preliminary debate in which it is argued that the indictment (the document served on the accused detailing the offence said to have been committed, together with a list of witnesses and productions) does not contain a crime known to Scotland.

[358] Cf para 2.58 above.

[359] For example, a redefinition of murder and/or culpable homicide; or an adjustment of the dividing line between murder and culpable homicide; or the addition of a new category of “assault causing death”.

[360] For culpable homicide, see Chapter 5.

[363] A restrictive effect illustrated in Petto v HM Advocate 2011 SCCR 519.

[364] 2001 SCCR 583, an appeal concerning the partial defence of provocation.

[365] An issue excluded from this paper:  see para 1.24 above.

[366] Ibid.

[367] See Gordon v HM Advocate 2018 SCCR 79, where an otherwise blameless man in his fifties smothered his terminally ill wife to end her suffering.  See too the discussion in PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014) para 9.16.5.

[368] Commentary on Drury v HM Advocate 2001 SCCR 583 at pp 618-619, para 2.

[369] J Chalmers, “Collapsing the Structure of Criminal Law” 2001 SLT (News) 241.

[370] Ibid pp 244-245.

[371] MGA Christie, “The Coherence of Scots Criminal Law: Some Aspects of Drury v HM Advocate” (2002) Jur Rev 273 at 283-284.

[372] CHW Gane, CN Stoddart and J Chalmers, A Casebook on Scottish Criminal Law (4th edn, 2009) para 10-21.

[375] 2011 SCCR 735 (Lord Hardie gave the opinion of the court).

[376] Ibid at paras [12], [13], [20], [21].

[377] For example, provocation, as in Drury.

[378] Elsherkisi v HM Advocate 2011 SCCR 735 at para [12].  See too Meikle v HM Advocate 2014 SLT 1062.

[379] 2011 SCCR 735, at p 750.

[380] PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014), para 9.16.3.

[381] Cf the analysis of Michael Christie, para 4.6 above.

[382] Commenting nevertheless that the problem of “mercy killings”, where an accused acts intentionally to bring about death, but not wickedly, still remained (reference being made to HM Advocate v Brady, 1997 GWD 1-18).

[383] With the exception of Elsherkisi.

[384] As juries cannot be asked how they reached their verdicts (Contempt of Court Act 1981, s 8 as amended by the Criminal Justice and Courts Act 2015), practitioners explained that they inferred understanding from (i) the lack of questions from the jury about the concepts of “murder” and “culpable homicide”, in contrast with the more common questions concerning “concert”, “the Moorov doctrine”, and “corroboration”;  and (ii) the generally sensible and apparently evidence-based verdicts which juries delivered:  there were few successful appeals in terms of the Criminal Procedure (Scotland) Act 1995, s 106(3) where the appellant had to satisfy the court that the verdict was one which “no reasonable jury, properly directed, could have returned”. 

[385] See ch 1, Introduction, para 1.15 and following paragraphs.

[387] Petto v HM Advocate 2011 SCCR 519.

[388] As was pointed out by J Chalmers, “The True Meaning of ‘Wicked Recklessness’:  HM Advocate v Purcell” (2008) 12(2) Edin LR 298 at p 301:  “[Dealing with such a submission at such a stage] has significant disadvantages.  In particular, appellate courts are more likely to produce ‘correct’ decisions, not just because of the increased number of judges sitting on them, but because of the opportunities for refinement of argument:  they have a previous reasoned decision to consider and counsel can reconsider and refine their arguments on the basis of that decision.  As it was, the opinion of the court, while careful and thoughtful, is open to criticisms which might have been avoided had a different procedure been followed at the outset.”

[389] The formal document containing the charges against the accused, together with a list of witnesses, productions (paper items such as a book of photographs) and labels (physical items such as a weapon or drugs).

[390] Options would include a road traffic offence, culpable homicide, and murder.

[391] See, for example, Cawthorne v HM Advocate 1968 JC 32

[392] Cawthorne cit sup at p 35 (Lord Justice General Clyde).

[393] HM Advocate v Byfield 1976 (Lord Thomson), quoted by Lord Goff in (1988) 104 LQR 30 at p 54.

[394] HM Advocate v Hartley 1989 SLT 135 at pp 135 to 136 (Lord Sutherland), adding “It may, in the end of the day, come as a considerable surprise to you, and indeed a matter of regret too that your victim dies, but that doesn’t alter the fact that you have committed murder, if you have, during the course of the attack, displayed such wicked recklessness as to show that you are regardless of the consequences, that you have no particular interest in whether your victim lives or dies”.

[395] Halliday v HM Advocate 1998 SCCR 509 at p 513 (Lord Justice General Rodger).

[396] Cowie v HM Advocate 2009 SCCR 838 at para [21] (Lord Justice Clerk Gill).

[397] See Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/;  and J Chalmers, “The True Meaning of ‘Wicked Recklessness’: HM Advocate v Purcell” (2008) 12(2) Edin LR 298-302.

[398] Despite an apparent public dissatisfaction with sentences imposed in death by driving cases: see, for example, S Reid, H Briggs, K Attygalle, K Vosnaki, R McPherson and C Tata, “Public perceptions of sentencing in Scotland: Qualitative research exploring causing death by dangerous driving offences” (Scottish Sentencing Council, 2021) available at: https://www.scottishsentencingcouncil.org.uk/media/2088/20210216-perceptions-of-sentencing-for-causing-death-by-driving-final.pdf.

[399] [1983] 2 AC 493 at 502D.

[400] See too P Ferguson, “Wicked Recklessness” (2008) Jur Rev 1, 1 at p 12.

[402] Causing death by dangerous driving.

[403] This was an example of a “no case to answer submission”.  In terms of the Criminal Procedure (Scotland) Act 1995, s 97, “[i]mmediately after the close of the evidence for the prosecution, the accused may intimate to the court his desire to make a submission that he has no case to answer both - (a) on an offence charged in the indictment; and (b) on any other offence of which he could be convicted under the indictment.”  The trial judge hears the submission outwith the presence of the jury.  The defence focuses on the evidence led by the prosecution and the law applicable, and submits that the Crown has failed to prove an offence recognised in Scots law.  If the judge agrees, the accused is acquitted of a charge or charges, or alternatively the jury may be directed that they cannot convict of a particular offence, for legal reasons.  If the judge rejects the submission (a decision which may subsequently be challenged in an appeal), the trial proceeds.  The jury is brought back to court and simply advised that there were administrative or legal matters to discuss.  At that stage, the accused may choose to give evidence on his own behalf, and to call witnesses in his defence.

[404] See Criminal Procedure (Scotland) Act 1995, s 1(5).

[405] See the sentencing statement for HM Advocate v Purcell 2007 SCCR 520 (available at http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/05_10_07_purcell.pdf) and J Chalmers, “The True Meaning of ‘Wicked Recklessness’” (2008) 12(2) Edin LR 298.

[406] A proposition which found support in G Gordon (MGA Christie (ed)), Criminal Law (3rd edn, 2001) para 23.17 (para 23.15 in the 2nd edn), interestingly phrased as follows:  “Now that it is accepted that a drunken motorist who drives his car at 70 miles an hour in a built-up area and kills a pedestrian on a pedestrian crossing or on the pavement is guilty (at common law) only of culpable homicide, it is submitted that the law can be accepted as being that murder cannot be committed unless the accused intended to cause some personal injury” [emphasis added]; cf R v Hyam [1975] AC 55, Viscount Hailsham LC [one of the two dissenting judges] at 77-78. Support for the proposition was also provided by para 23.33:  “ … The acceptance [of the view that the recklessness in murder … could be committed only in the course of committing another crime, or at least by an assault] was aided by the absence of any definition of recklessness in Scots law, and also by the development of the law as a result of which motorists and other ‘non-criminal’ persons who cause death recklessly are not charged with murder, however gross their lack of care or rash their behaviour.  Although this suggested development is in line with Lord Cooper’s remark that ‘we have practically reached the position where only intentional killing is murder’ [in his evidence to the Royal Commission], the actual situation is that there is murder wherever death is caused with wicked intention to kill or by an act intended to cause physical injury and displaying a wicked disregard of fatal consequences.”

[407] See, for example, J Chalmers, “The True Meaning of ‘Wicked Recklessness’: HM Advocate v Purcell” (2008) 12(2) Edin LR 298;  M Plaxton, “Foreseeing the Consequences of Purcell” 2008 SLT (News) 21;  CG Stephen, “Blazing a (New) Trail for Murder? Petto v HM Advocate” 2009 SLT (News) 177;  C McDiarmid, “Something Wicked This Way Comes: The Mens Rea of Murder in Scots Law” (2012) 4 Jur Rev 283.    See too the absence of any mention of an element of “intent to injure” in Scottish Law Commission, The Mental Element in Crime, Scot Law Com No 80 (1983) para 2.32;  Scottish Law Commission Memorandum to a Select Committee on Murder and Life Imprisonment in England and Wales and in Scotland (1989) Vol III - Oral Evidence, Pt 2 and Written Evidence, 24 July 1989 (HL Paper 78-III) at p 385;  and Scott v HM Advocate 1995 SCCR 760.  

[408] Unless, of course, a vehicle is obviously used by the driver as a lethal weapon.

[409] (1988) 104 LQR 30.

[410] [1961] AC 290.

[411] Cf the circumstances of a more recent murder trial in England, R v Long, Bowers and Cole (sentencing statement available at: https://www.judiciary.uk/judgments/r-v-long-bowers-and-cole/), concerning the death of PC Harper (whose feet became entangled in the tow-rope attached to the accused’s car, resulting in his death when dragged for about a mile as the accused tried to escape the police).  In Scotland, certainly pre-Purcell, a jury would be entitled to return a verdict of murder on the basis of wicked recklessness:  but in England, as mentioned in paras 3.19 and 4.19 above, a person can only be guilty of murder if he intended to kill, or if he intended to do grievous bodily harm.

[415] Lord Goff refers to the US Model Penal Code, in which the intention to do grievous bodily harm has no express significance, but is subsumed within the wider categories of “extreme indifference” murder (s 210.2(1)(b)) or reckless manslaughter (s 210.3(1)(a)) … In the New York Penal Code, an “intent to cause serious physical injury”, under s 125.20 only creates liability for first degree manslaughter (see BE Gegan, “A Case of Depraved Mind Murder” (1975) 49 St John’s LR 417, especially at pp 436-440).

[416] A person has “oblique intention” when an event is a natural consequence of their voluntary act, and they foresee it as such.  A person is held to intend a consequence (obliquely) when that consequence is a virtually certain consequence of their action, and they knew it to be a virtually certain consequence:  R v Woollin [1999] 1 AC 82.  In his address, when dealing with “oblique intention, Lord Goff refers to JE Stannard, “Mens Rea in the Melting Pot” (1986) 37 NILQ 61 at pp 70-71;  RA Duff, “The Obscure Intentions of the House of Lords” [1986] Crim LR 771 at p 778; AKW Halpin, “Intended Consequences and Unintentional Fallacies” (1987) 7 OJLS 104 at p 114, which support the argument that the mens rea of murder should be widened but without artificially extending the meaning of “intention”.

[417] G Williams, Textbook of Criminal Law (2nd edn, 1983) at pp 84-85.

[418] (1988) 104 LQR 30, at p 45.

[419] Ibid, at p 57.

[420] Ibid, at p 52.

[421] See the definition of “oblique intent” in fn 58 above.

[422] Lord Goff refers to G Gordon, “The Burden of Proof on the Accused” 1968 SLT (News) 41.

[423] Lord Goff refers to the Scottish Law Commission, The Mental Element in Crime, Scot Law Com No 80 (1983) paras 2.34-2.36, and to the Scottish Law Commission, Attempted Homicide, Scot Law Com Consultative Memorandum No 61 (1984) para 3.4, which highlight the small number of appeals concerning the mental element in murder under Scots law, when compared to the rest of Britain.  Lord Goff also refers to Forensis [1986] JLSS 354 at p 355.

[426] Lord Justice Clerk Gill, Lord Osborne, Lord Kingarth, Lord Eassie, and Lord Carloway.

[427] G Gordon (MGA Christie (ed)), Criminal Law (3rd edn, 2001) para 23.32:  “Fire-raising … [Statements suggesting that death caused by wilful fire-raising is murder] can be disregarded as deriving from a doctrine of constructive malice of a kind no longer accepted in Scots law.  It is submitted that death caused by a fire-raiser cannot be murder unless the fire-raising displayed wicked recklessness.  It may be that in view of the serious nature of fire-raising this case forms an exception to the suggested rule that murder also requires an intention to cause physical injury, but in the absence of any authority it cannot be asserted that this is so.  Fire-raising is certainly a very serious and potentially dangerous crime, but so also is driving a car recklessly and under the influence of drink, and to cause death in the latter way is not murder in modern law.”

[428] Looking at the definitions and examples of conduct which constituted “wicked recklessness” set out in paras 4.19 and 4.24 above.

[429] See para [20] quoted in para 4.34 below.

[430] Reflecting, to some extent, the views of commentators who had been awaiting the outcome of the Purcell-Petto tension:  see, for example, J Chalmers, “The True Meaning of “Wicked Recklessness’: HM Advocate v Purcell” (2008) 12(2) Edin LR 298;  E Clive, “Codification of the Criminal Law” in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010) at pp 62-63:  “ … At the time of writing, the larger court’s decision was still awaited.  It will be interesting to see what a larger court does.  It is to be hoped that it does not distort the law on assault in order to solve problems in the law of murder.  It is also to be hoped that it does not regard fire-raising as some sort of unprincipled ad hoc exception to a more general rule … The best outcome would probably be for the court to do what it can in the short term and suggest that the whole area of murder and culpable homicide be reviewed with a view to legislation … the question of what constitutes murder in the law of Scotland … is the sort of thing we ought to know by now … If a statute … had said … ‘wicked recklessness suffices but perhaps not in driving cases and perhaps only if there is something like a violent assault or possibly fire-raising - it would have been severely and rightly criticised.”

[431] Lord Carloway stated at para [32]:  “ … following the analysis and research of your Lordship in the Chair, a comprehensive re-examination of the classic definition of murder, which (subject to Drury v HM Advocate) remains that set out in Macdonald’s Criminal Law (5th edn) at p 89, to be carried out in the normal course of law reform, may be desirable.”

[432] The phrase used in question 5 of the issues for consideration in our informal consultations.

[433] HM Advocate v Hartley 1989 SLT 135 at 136.

[434] HM Advocate v Byfield, quoted by Lord Goff in (1988) 104 LQR 30 at p 54.

[435] Cawthorne v HM Advocate 1968 JC 32.

[436] A formulation suggested by a member of our Advisory Group.

[437] Again, a formulation suggested by a member of our Advisory Group.

[438] The submission made by the Crown in HM Advocate v Purcell 2007 SCCR 520.

[439] 2011 SCCR 519, at para [21].

[440] See ch 1, Introduction, para 1.2.  In effect, constructive malice is a form of strict liability.

[441] Such as the accused in HM Advocate v Petto 2011 SCCR 519.

[442] Thus had such a doctrine been clearly extant in Scots homicide law in the 21st century, there might have been an obvious “route to verdict” in Petto:  see the points made in the appellant’s submissions in Petto, noted in para 4.31 above.   

[443] No intention to kill or inflict grievous bodily harm is required, nor is there a need to prove that the accused could foresee the likelihood of causing death (see Halsbury’s Laws of Australia, paras 130-3200 and 130-3300.).  Tasmania specifically lists the relevant serious offences, including piracy, escape from prison, resisting lawful apprehension, rape, forcible abduction, robbery, burglary and arson.

[444] In terms of the NYPC, s 124.25(3), there may be a conviction for second degree murder if a death occurs during one of the listed felonies (no proof of a fault element is required) although there may be a defence if the accused did not commit or aid the homicidal act, was not armed, had no reasonable ground to believe that another participant was armed, or had no reasonable ground to believe that any other participant would engage in conduct likely to result in death or serious physical injury;  and in terms of the CPC a felony murder doctrine applies to both first and second degree murder:  CPC s 189(a), 189(e) and case law.

[445] In terms of the Criminal Law Act 1979, s 2A where someone is killed in the course of an arrestable offence involving violence, the perpetrator(s) are liable to be convicted of murder even if the killing was done without intent to kill or to cause grievous bodily harm:  see Khan v The State [2003] UKPC 79.

[446] Homicide Act 1957, s 1:  see Law Commission, Murder, Manslaughter and Infanticide Law Com No 304 (2006) para 1.30 fn 24.

[447] Halsbury’s Laws of Australia, paras 130.305 and 130.307:  “The former rule, whereby a killing in the course or furtherance of another offence was murder, has now been abolished … The doctrine of constructive malice has been abolished.”

[448] The drafters of the MPC abolished the felony murder rule, and in its place created a rebuttable presumption of recklessness and extreme indifference if the killing occurred in a robbery, sexual attack, arson, burglary, or felonious escape:  see MPC s 210.2(1)(b).

[449] Burnett, A Treatise on Various Branches of the Criminal Law of Scotland (1811) at ch I, p 6.

[450] Hume, Commentaries on the Law of Scotland (1844) at pp 24-5.

[451] Alison, Principles of the Criminal Law of Scotland, (1832) Vol I at pp 51-53.

[452] Macdonald, A Practical Treatise on the Criminal Law of Scotland (5th edn 1948) at pp 91-92.

[453] 1920 JC 60.

[454] Ibid at p 78.

[455] Unreported November 1960, High Court at Glasgow; December 1960, High Court of Justiciary on Appeal.

[456] Transcript of Judge’s charge at pp 30-31.

[457] HM Advocate v Fraser and Rollins 1920 JC 60; HM Advocate v Miller and Denovan Unreported November 1960, High Court at Glasgow; December 1960, High Court of Justiciary on Appeal.

[458] G Gordon (J Chalmers and F Leverick (eds)), Criminal Law (4th edn, 2017) paras 30.26 to 30.32.

[459] PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn 2014) para 9.12.5.

[460] M Plaxton, “Foreseeing the Consequences of Purcell” (2008) SLT (News) 21 at p 24.

[461] Ibid at p 24.

[464] 2007 SCCR 520 at para [15].

[466] Ibid at para [7] (Lord Wheatley).

[467] Ibid at para [19] (Lord Gill).

[468] M Plaxton, “Foreseeing the Consequences of Purcell” (2008) SLT (News) 21 at p 24.

[469] Homicide Act 1957, s 1.

[470] Relevant excerpts from the Code can be found in the Appendix to this paper.

[471] Namely that the Code is “based firmly on laws which have stood the test of time … firmly based on the existing law and is recognisably the traditional criminal law of Scotland, updated and set out in modern form” (p 3).  It “is not … a copy of some foreign model” (pp 2-3), but nevertheless “involves some reforms so that the new law is a restatement with the elimination of perceived defects and anomalies” (p 2).

[472] E Clive, P Ferguson, C Gane, and A McCall Smith.

[473] Ss 37 and 38:  this contrasts with homicide law in other jurisdictions such as Italy and the USA (see para 2.2 above);  and also with the observations of Professor L Farmer, “Structuring Homicide: A Broad Perspective” (Joint SLC, University of Strathclyde and University of Glasgow Seminar, 26 October 2018) available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[474] The Draft Code does not therefore use actus reus as the defining element, contrary to the proposals made and questions raised by Professor Farmer and Professor McDiarmid (Joint SLC, University of Strathclyde and University of Glasgow Seminar, 26 October 2018) available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[475] Cf the current subdivision (see para 2.3 above), but “wicked intention” is replaced by “intention” as defined in s 9 of the Code, and “wicked recklessness” is replaced by “callous recklessness”, with recklessness being defined in s 10 of the Code.

[476] S 38(3)(a) and (b), and s 38(5).  The retention of provocation and diminished responsibility can be contrasted with some jurisdictions where such defences have been abolished (see, for example, England and Wales, and New Zealand:  ch 10, Provocation, paras 10.40 and 10.43).  Also the retention of provocation does not accord with: Professor L Farmer, “Structuring Homicide: A Broad Perspective” (Joint SLC, University of Strathclyde and University of Glasgow Seminar, 26 October 2018) available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[477] This approach reflects the current position in England and Wales.  In R v Woollin [1999] 1 AC 82, it was held that “the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant's actions and that the defendant appreciated that such was the case.” (Lord Steyn at p 96 of Woollin).

[478] S 9(1)(a) and (b).  S 9(2) also provides that “there is no rule or presumption that a person intends the natural and probable results of that person’s acts”.

[479] S 10.

[480] Ss 9, 10 and 37.

[481] “Harm” can extend to psychological harm, emotional harm, and financial harm:  while this may be thought a minor detail, it may be necessary for the trial judge to explain what sort of harm is envisaged by the statute.

[482] Scottish Law Commission, The Mental Element in Crime, Scot Law Com No 80 (1983) para 2.14.

[483] (1988) 104 LQR 30.

[484] He referred to JE Stannard, “Mens Rea in the Melting Pot” (1986) 37 NILQ 61 at pp 70-71;  RA Duff, “The Obscure Intentions of the House of Lords” [1986] Crim LR 771 at p 778; AKW Halpin, “Intended Consequences and Unintentional Fallacies” (1987) 7 OJLS 104 at p 114, which support the argument that the mens rea of murder should be widened but without artificially extending the meaning of “intention”.

[485] In a Memorandum to a Select Committee on Murder and Life Imprisonment in England and Wales, The Nathan Committee, Vol III - Oral Evidence, Pt 2, and Written Evidence, 24 July 1989 (HL Paper 78-III) at p 386 para 11. The Memorandum was prepared without any formal consultation process, and was a response to a proposal that the crime of murder be set out in a UK-wide statute: see para 4.65.

[486] Referring to DPP v Smith [1961] AC 290;  R v Hyam [1975] AC 55R v Hancock [1986] AC 455.

[487] Memorandum, p 386 para 11.

[488] Memorandum, pp 386 to 397 at paras 13 and 17.

[489] “Homicide”, 7 Stair Memorial Encyclopaedia, para 267, fn 2.

[490] [1975] AC 55, adding “For a discussion of intention to kill, see RA Duff, Agency and Criminal Liability (1990)”.

[491] In R v Woollin [1999] 1 AC 82.

[492] Arguing, for example, that the jury had been misdirected, or that a “no case to answer” submission had been wrongly refused.

[493] Draft Code, p 84.

[494] Here, the authors refer to CHW Gane and CN Stoddart, A Casebook on Scottish Criminal Law (3rd edn, 2001) pp 402-403, where that issue is discussed.

[495] Namely Lord Davidson (chair), Dr EM Clive, Professor PN Love CBE, Sheriff CGB Nicholson QC, and WA Nimmo Smith QC.

[496] Memorandum, p 387 at para 16 and following paragraphs.

[497] A suggestion which may be supported to some extent by the fact that there is little overlap between “callous” and “wicked” in Webster’s Dictionary of Synonyms.  Synonyms for “callous” include “affectless, case-hardened, cold-blooded, compassionless, desensitized, hard, hard-boiled, hard-hearted, heartless, indurate, inhuman, inhumane, insensate, insensitive, ironhearted, merciless, obdurate, pachydermatous, pitiless, remorseless, ruthless, slash-and-burn, soulless, stony, stonyhearted, take-no-prisoners, thick-skinned, uncharitable, unfeeling, unmerciful, unsparing, unsympathetic”.  Synonyms for “wicked” include “bad, black, dark, evil, immoral, iniquitous, nefarious, rotten, sinful, unethical, unlawful, unrighteous, unsavoury, vicious, vile, villainous, wrong”.

[498] “The draft code is not presented as something which must be accepted or rejected as a package.  Its content is for the Scottish Parliament to determine.” (p 4).

[499] P 7.

[500] Drury v HM Advocate, 2001 SCCR 583, para [13] (Lord Justice General Rodger).

[501] Transco plc v HM Advocate (No 1) 2004 SCCR 1, para [35] (Lord Hamilton).

[502] Ch 2, The structure of Scots homicide law.

[503] See ch 10, Provocation, and ch 11, Diminished responsibility.

[504] Despite the doubts expressed by Lord Justice General Rodger in Drury v HM Advocate, the majority of legal scholars and practitioners support the concept of “reduction” of the crime of murder to the lesser crime of culpable homicide.  Where murder is so reduced, the resultant culpable homicide is described by some writers and legal systems as “voluntary culpable homicide”, the adjective “voluntary” reflecting the clear intention to kill as opposed to “involuntary” culpable homicide where there is no intention to kill:  see ch 2, fn 12.  However the voluntary/involuntary classification did not emanate from the institutional writers, and the classification is infrequently referred to in day-to-day practice in Scottish murder trials and appeals.  

[505] See ch 2, The structure of Scots homicide law, paras 2.14 to 2.19;  and see Ross v Lord Advocate 2016 SCCR 176, para [29] (Lord Carloway):  “ … Depending upon the nature of the act, the crime of [homicide] may be murder or culpable homicide.  Exactly where the line of causation falls to be drawn is a matter of fact and circumstance for determination in each individual case.”

[506] See ch 2, paras 2.20 to 2.23.

[507] Bird v HM Advocate 1952 JC 23.

[508] HM Advocate v McPhee 1935 JC 46.

[509] See the unreported case of Ross Fontana (March 1990), referred to in TH Jones and I Taggart, Criminal Law (7th edn, 2018) para 9-76.

[510] Cf the circumstances in the English case of R v Adomako [1995] 1 AC 171.

[511] As in MacAngus and Kane v HM Advocate 2009 SCCR 238.

[512] As in HM Advocate v Purcell 2007 SCCR 520.

[513] Such a situation may involve the “thin skull” rule, namely taking your victim as you find him (or her).  It is no defence to a charge of homicide that the victim of an assault had, unknown to the accused, a pre-existing condition such as an abnormally thin skull, or a heart condition, or some congenital abnormality, which contributed to the death:  HM Advocate v Rutherford 1947 JC 1, 1947 SLT 3;  Bird v HM Advocate 1952 JC 23, 1952 SLT 446.

[514] The consequence of a conviction for culpable homicide.

[515] See, for example,  the debate in the case of Purcell, noted in paras 4.19 and 4.20 above.

[516] Statutory offences include causing death by dangerous driving;  causing death by careless or inconsiderate driving;  causing death by driving while unlicensed, disqualified or uninsured;  and causing death by careless driving when under the influence of drink or drugs (Road Traffic Act 1988, ss 1, 2B, 3ZB, 3ZC, and 3A).

[517] To date, two private members bills have failed in the Scottish Parliament:  The End of Life Assistance (Scotland) Bill, defeated in 2010 by 85 votes to 16, and the Assisted Suicide (Scotland) Bill defeated in 2015 by 82 votes to 36.  And see L Campbell, “Current Debates about Legislating for Assisted Dying: Ethical Concerns” (2018) 24(1) MLJI 20 at p 21.

[518] See fn 10 above and fns 46-47 and 56 below.

[519] For example, in England and Wales there are prosecutions for “gross negligence manslaughter”, where a person carrying out a job requiring special skill or care (such as a doctor, an anaesthetist, a policeman, a prison officer, a ship’s captain, an electrician) fails to meet the expected standard and causes death: see Law Commission, Legislating the Criminal Code: Involuntary Manslaughter, Law Com No 237 (1996) para 2.8 and following paragraphs; and the case of R v Adomako [1995] 1 AC 171.

[520] Scottish courts have held that there may be no break in the chain of causation, and that the drug supplier may be responsible for the death:  Lord Advocate’s Reference (No 1 of 1994) 1995  SCCR 177; MacAngus and Kane v HM Advocate 2009 SCCR 238, para [48].  By contrast, courts in England and Wales consider voluntary ingestion to be a novus actus interveniens which breaks the chain of causation:  R v Kennedy (No 2) [2008] 1 AC 269.

[521] In the law of manslaughter in England and Wales, a prosecution for involuntary manslaughter by gross negligence committed by omission may follow where a duty of care was owed to an individual, the duty was neglected, and the individual died:  Law Commission, Legislating the Criminal Code: Involuntary Manslaughter, Law Com No 237 (1996) para 2.22 and following paragraphs.  The law in Scotland is less clear:  see para 5.18 and 5.19 below. See too Bone v HM Advocate 2005 SCCR 829 at fn 63 below.

[522] See S Field “Ten Years On:  The Corporate Manslaughter and Corporate Homicide Act 2007:  Plus Ca Change?(2018) ICCLR 511;  S Field, “The Corporate Manslaughter and Corporate Homicide Act 2007 and Human Rights:  Part 1 - Has Universal Protection of the Right to Life Been Advanced?” (2019) ICCLR 369;  V Roper “The Corporate Manslaughter and Corporate Homicide Act 2007 - A 10-year Review” (2018) J Crim Law 48, concluding that while the statutory offence offered a superior basis of liability, encompassing more than small companies, nevertheless results over a 10-year range were disappointing, with (in England and Wales) fewer prosecutions than envisaged, unjustifiable inconsistency in sentencing, a continued lack of individual accountability, and a prosecutor preoccupation with a limited range of defendants.

[523] In December 2014, Richard Baker MSP carried out a consultation concerning a Culpable Homicide (Scotland) Bill, which did not become statute.  In April 2019 Claire Baker MSP commenced a consultation concerning a Culpable Homicide (Scotland) Bill, seeking to have corporate wrongdoers treated with the same level of gravity and moral opprobrium as an accused in a homicide trial.  The bill was introduced to the Scottish Parliament on 1 June 2020 and the Presiding Officer gave a negative statement on introduction that the provisions of the bill were outwith the legislative competence of the Scottish Parliament. The bill fell at Stage 1 on 21 January 2021. There were 26 votes for, 89 against, and 0 abstentions. The bill sought to create two kinds of statutory culpable homicide, namely death caused “recklessly” and death caused by “gross negligence”, with the possibility of liability being brought home to individual office-holders with resultant convictions and sentence.  The intention was that the new definitions embodied standards which could be established objectively, thus avoiding proof of any mental element on the part of the organisation.   As explained in the foreword,  the proposed legislation attempted to introduce appropriate legal remedies for loss of life where the recklessness or gross negligence of employers, businesses or corporations is proved.  Critically, the legislation also sought to provide a greater focus on health and safety in organisations and in the workplace, supporting a reduction in fatalities, and changing the culture in Scotland for the better.  It was proposed that the definitions of “recklessness” and “gross negligence” follow those under the Draft Criminal Code for Scotland, and that there should be a clearly defined “duty of care” owed to employees.  The statutory offences would have been in addition to, and not in substitution for, existing offences of culpable homicide at common law.

[524] See dicta of Lord Cameron in Boyle v HM Advocate 1976 JC 32 at 37.

[525] Interviewed in our informal consultations:  see ch 1, Introduction, para 1.44.

[526] If such clarification was not possible, the interviewee suggested that a discussion (outwith the presence of the jury and prior to the judge giving the charge) would be helpful. Those points arose because in current practice, the option of culpable homicide may be withdrawn if the trial judge considers that the evidence does not justify that lesser verdict, thus restricting the verdicts open to the jury to murder or acquittal:  see G Gordon (J Chalmers and F Leverick (eds)), Criminal Law (4th edn, 2017), para 30.28.  As the judge is the last person to speak to the jury, withdrawal of culpable homicide without warning or discussion may cause difficulties (if, for example, the defence had hoped for that verdict).

[527] Tribute was paid to juries who, as a composite body, were thought generally to be very acute.

[528] J Chalmers and F Leverick, “Fair Labelling in Criminal Law” (2008) 71(2) MLR 217 at 223. 

[529] Para 2.31 above, and also the paper prepared by Professor McDiarmid on the Scottish Law Commission Homicide website.  Similarly, the Law Commission of England and Wales (LCEW) express concern about the wide range of offending conduct included in the equivalent offence of manslaughter.  As was noted in Law Commission, A New Homicide Act for England and Wales? An Overview, Law Com CP No 177 (2005) para 1.30:  “Manslaughter is of even wider scope than murder.  In 1992 Lord Chief Justice Geoffrey Lane said of the offence, ‘it ranges in gravity from the borders of murder right down to those of accidental death’ … 5.1 … the fundamental weakness of the law of homicide is that its structure is not designed to ensure that different levels of criminality are accurately graded and labelled …”.

[530] See paras 2.27 to 2.30 above.

[531] German Criminal Code, s 211.  Other examples include the Canadian Criminal Code (see para 5.46 below), and the New Zealand Crimes Act 1961 (see paras 5.30 to 5.32 below).

[532] See, for example, the Draft Criminal Code for Scotland, s 38 (the full text of s 38 can be found in the Appendix.)  The Code divides culpable homicide into two broad categories:  the first category includes unlawful deaths caused by assault or by other acts which might reasonably involve personal injury;  and also deaths caused by reckless acts which are not in themselves unlawful.  The second category is murder reduced to culpable homicide through the partial defence of provocation or diminished responsibility.  It is of note that the authors have not opted for a “ladder” or “grid” of specific offences identified by actus reus.  “Recklessness” is specifically defined in s 10, and the authors comment that the Draft Criminal Code “is more precise than the common law about what is meant by recklessness” (commentary on s 38, at p 86). The high level of condemnation to which a conviction for killing gives rise has particular resonance in the context of defining culpable homicide. As Husak notes, “[t]he criminal law is different and must be evaluated by a higher standard of justification because it burdens interests not implicated when other modes of social control are employed … Even when the state has a good reason to discourage a given type of behaviour, it may lack a good reason to subject those who engage in it to the hard treatment and reprobation inherent in punishment”: see D Husak, “The Criminal Law as Last Resort” (2004) 24 OJLS 207, at p 234.

[533] A task acknowledged to be a difficult one:  see, for example, Professor McDiarmid in the paper prepared for the Scottish Law Commission.

[534] See the circumstances in HM Advocate v Purcell 2007 SCCR 520DPP v Smith [1961] AC 290;  and the murder trial in 2020 concerning the death of PC Harper, whose feet became entangled in the tow-rope attached to the accused’s car, resulting in his death when dragged for about a mile as the accused tried to escape the police (R v Long, Bowers and Cole, sentencing statement available at: https://www.judiciary.uk/judgments/r-v-long-bowers-and-cole/).    Note the type of provision in the state of Georgia, USA, where a homicide is “first degree homicide by vehicle” if the driver “was attempting to flee from a law enforcement officer” (AM Trapp, Vehicular Homicide Laws (2004));  and in Canada, where the fact that the victim is a “police officer or other person employed for the preservation and maintenance of the public peace acting in the course of his duties, or a prison employee acting in the course of his duties”, renders any killing automatically a crime of first degree murder (Canadian Criminal Code, s 231(4)).

[535] As is provided in the New Zealand Crimes Act 1961, s 168(2).

[537] 1990 SCCR 593.

[539] The court’s automatic equiparation of the supply of drugs with reckless and culpable conduct, regardless of the circumstances, has been criticised:  PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014) at p 218.  Note that in Scotland, voluntary ingestion of the drugs may not break the chain of causation:  MacAngus and Kane v HM Advocate 2009 SCCR 238 para [48] (Lord Justice General Hamilton);  contrast with England (R v Kennedy (No 2) [2008] 1 AC 269, paras [14], [24] to [26].

[541] At para [4] (Lord Osborne); paras [35] - [38] (Lord Hamilton).

[542] Defined in s 10:  see the full text in the Appendix to this paper.

[543] Eds J Chalmers and F Leverick.

[544] Hume and Alison.

[545] Concerning the absent-minded discharge of a fowling-piece;  an out-of-control carriage where the horses were left driver-less; workmen throwing rubbish from a roof;  the accidental discharge of a gun;  careless rock-blasting;  bad driving;  and bad management of ships. 

[546] Involving carelessness by persons lawfully using guns;  by chemists;  by builders;  by persons conducting blasting operations or storing explosives;  by pit managers, miners, and persons in charge of machinery;  by coachmen or horsemen;  by persons in charge of boats; by engine drivers;  by railway signalmen;  and by other persons responsible for the proper running of railways.  The locus classicus of the 19th century law of culpable homicide is identified as the charge to the jury in Wm Paton and Richd McNab (1845) 2 Broun 525, setting out a standard of negligence very similar to the current standard in civil law. 

[547] In fact, Claire Baker’s bill made that suggestion.

[548] Standing the enactment of The Corporate Manslaughter and Corporate Homicide Act 2007, it is currently unclear whether an indictment based on the common law of culpable homicide would be regarded as relevant:  see para 5.6 and fns 22 and 23 above.

[549] As was illustrated in Transco v HM Advocate (No 1) 2004 SCCR 593.

[550] A reluctance which may be thought similar to the reluctance of society, courts, and juries to brand a car-driver a “murderer” or  “killer”:  see ch 4, Murder, para 4.20.

[551] See, for example, Quinn v Cunningham 1956 JC 22, at pp 24 to 25 (not overruled in Harris 1993 SCCR 559);  Cameron v Maguire 1998 JC 63 at p 66, which link in with the 19th century railway cases.

[552] Edmund Wheatley (1853) 1 Irv 225.  Contrast with the case of George Armitage (1885) 5 Coup 675, where the circumstances were similar, but a jury found the accused not guilty.  See too HM Advocate v Wood (1903) 4 Adam 150.

[553] Macdonald at p 150. 

[554] Paton v HM Advocate 1936 JC 19 at p 22.

[555] “Doctor Acquitted Over Friend’s Drug Death” BBC News (26 May 2017) available at: https://www.bbc.co.uk/news/uk-scotland-tayside-central-40057847.  The Crown did not appeal.

[556] For example, England (Adomako [1995] 1 AC 171, where an anaesthetist failed to notice that a breathing tube had become disconnected).

[557] The offence being “gross negligence manslaughter”, where a person carrying out a job requiring special care or skill (for example, doctor, police officer, prison officers ship captain, electrician) fails  to meet the expected standard and causes death:  see Law Commission, Legislating the Criminal Code: Involuntary Manslaughter, Law Com No 237 (1996), para 2.8 and following paragraphs.

[558] Where alleged negligence generally forms a ground of action in a civil case seeking damages.

[559] PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014) para 9.10.1.  There is English authority:  see Stone and Dobinson [1977] QB 354, discussed at fn 66 below.

[560] In contrast with some jurisdictions with a law of easy rescue: see M Menlowe and A McCall Smith (eds), The Duty to Rescue: The Jurisprudence of Aid (1993). See also the difficult situation which arose in the 2008 case of Alison Hume, whose rescue from a mineshaft was delayed due to health and safety concerns, resulting in her death: “No Prosecution over Alison Hume Ayrshire Mineshaft Death” BBC News (29 November 2013) available at: https://www.bbc.co.uk/news/uk-scotland-glasgow-west-25153177.

[561] PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014) para 6.8.5.

[562] Bone v HM Advocate 2005 SCCR 829, described as “a rare example of homicide by omission” in TH Jones and I Taggart, Criminal Law (7th edn, 2018) para 3-10 fn 15;  and see too the English case of R v Gibbins and Proctor (1919) 13 Cr App R 134 (murder as a result of neglect and deliberate failure to feed a 7-year-old child);  and G Gordon (MGA Christie (ed)), Criminal Law (3rd edn, 2001) para 3.30.

[563] In an English case R v Hood [2003] EWCA Crim 2772 it was held that there was a legal duty upon a husband to summon medical assistance for his wife following an accidental fall.  However in a Scottish criminal trial HM Advocate v Crilley (unreported) in 2019, a jury acquitted an elderly husband who did not summon medical assistance when his wife (also elderly) had a fall which resulted in her lying for days until she died.

[564] In an English judicial review Lewin v CPS [2002] EWHC 1049 (Admin) the court had to consider a challenge to a decision by the Crown Prosecution Service not to prosecute where a drunk friend was left in a car for several hours in extreme heat, and died.  The challenge failed, the court holding that being friends was not enough to create a duty:  more was required, such as leaving the friend in a foreseeably dangerous situation.

[565] Again there is little Scottish authority.  In William Hardie (1847) Ark 247 a charge of culpable homicide was brought against an Inspector of the Poor who ignored the deceased’s application for poor relief:  see discussion in PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn 2014) para 6.7.1;  and TH Jones and I Taggart, Criminal Law (7th edn 2018) para 3-11.  In the English case of Stone and Dobinson [1977] QB 354, the voluntary assumption of care for a sister led to a conviction for manslaughter when she died from malnutrition and infected bed sores.

[566] Being one interpretation of HM Advocate v McPhee 1935 JC 46 where a woman was beaten and left unconscious in a field, exposed to the inclemency of the weather.  However another interpretation of that case might be that the accused had acted “with wicked recklessness, not caring whether the victim lived or died”.

[567] An offence introduced by legislation in many Australian states (New South Wales, Victoria, Queensland, Western Australia, and Northern Territory) to answer the problem of minor assault manslaughter such as one punch in the course of a pub brawl proving fatal.  For example, the statutory provision in Victoria refers specifically to a single punch or strike to a person’s head or neck, even if the injury from which the person dies is not the punch or strike itself, but another injury resulting from impact caused by the punch or strike (Crimes Act 1958 (Vic) s4A(4)). 

[568] Reflecting the view that these offences are regarded as less serious, carrying less moral blameworthiness than other manslaughter offences: cf  C Ferguson and R Robson, “A Legal and Social Analysis of ‘One Punch’ Cases in Western Australia” (2004) UWSLR 19 at p 28.  Note however that the Criminal Code of Western Australia prescribes a sentence of 20 years imprisonment, apparently taking a graver view:  Criminal Code (WA) s 281(1).  Also some critics argue that the statutory provisions have not solved the social issues underlying the offence, namely violence amongst groups of young men:  Ferguson and Robson, op cit, p 43. 

[569] Draft Criminal Code for Scotland (2003) commentary on s 38 at p 86.

[570] In the USA, for example, “felony murder” provisions (where death resulting from arson, rape, robbery or burglary constitutes first degree murder) have been “consistently disfavoured by courts and commentators as being irrational and unduly harsh”:  V Bergelson, “United States of America” in A Reed and M Bohlander (eds), Homicide in Criminal Law:  A Research Companion (2019) p 229.

[571] See the discussion concerning constructive malice in ch 4, Murder, para 4.36 and following paragraphs.  Constructive malice was criticised by Lord Justice Clerk Gill in Petto v HM Advocate 2011 SCCR 519, particularly at para [21].

[572] Crimes Act 1961, s 160.

[573] Cf the first branch of the Scots law definition of murder (“wicked intention”), but the word “wicked” is absent.  Under New Zealand law, a mercy killing would undoubtedly be murder, although there may be exercises of prosecutorial discretion in particular cases.

[574] A concept similar to Scots law’s “wicked recklessness”, where the offender displays “such wicked recklessness as to imply a disposition depraved enough to be regardless of the consequences”:  see ch 4, Murder.  However a limiting factor in New Zealand law is that the offender must know that the bodily injury is “likely to cause death”.  This is more restrictive than the Scots law of wicked recklessness.

[575] Cf the doctrine of transferred intent (G Gordon (MGA Christie (ed)), Criminal Law (3rd edn, 2001) paras 9.12 to 9.13.  It is not clear whether a doctrine of transferred intent is part of Scots law, but it may be that “wicked recklessness” would cover such a situation. 

[576] In effect a form of constructive malice (see ch 4, Murder) or possibly a form of “wicked recklessness” as defined in Scots homicide law.

[577] Or administered a stupefying thing causing death, or wilfully stopped someone’s breathing causing death, in order to achieve the purposes listed in s 168(2).

[578] S 168(2), on one view, a form of constructive malice (see ch 4, Murder).

[579] CPC, ss 191.5 and 192.

[580] Possibly reflecting a societal trend already noted in chs 1 and 4 above, namely the public’s reluctance to classify causing death by driving as murder or culpable homicide (or their equivalents): see CPC, s 191.5.

[581] NYPC s 125.20.

[582] NYPC s 125.21-22.

[583] MPC s 210.3.  Courts have adopted a subjective standard, diverging from the common law reasonable person test, and allowing the jury greater latitude:  D Brody, J Acker & W Logan, Criminal Law (2001) p 353.

[584] See Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/.

[585] Culpable homicide no longer encompasses unintended death arising from illegal activity, or cases involving provocation or diminished responsibility.  Partial defences no longer exist under South African law:  the court has a preliminary inquiry into criminal capacity, taking into account any factor which might impair it (such as provocation, emotional stress, voluntary intoxication):  if the court finds that criminal capacity has been impaired, the accused is acquitted: JM Burchell and J Milton, Principles of Common law (3rd edn, 2005) p 428.

[586] Burchell and Milton, op cit, p 525.

[587] See Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/, one case being S v Van As 1976 (2) SA 921 (A) where the accused slapped the deceased, who lost his balance, fell backwards, hit his head, and died.

[588] See Scottish Law Commission, “Homicide Laws in Other Jurisdictions”, available at: https://www.scotlawcom.gov.uk/law-reform/law-reform-projects/homicide/ .

[589] The Commonwealth jurisdiction also has homicide (murder and manslaughter) laws: Criminal Code Act 1995, ss 71.2, 71.3, 115.1 and 115.2.

[590] There may be different definitions and different “liability lines” in different states:  for example, in the Australian Capital Territory, reckless indifference to the probability of causing the death of any person is a sufficient fault element for murder;  but in the Northern Territory, recklessness is not a sufficient fault element for murder, but may be sufficient for manslaughter.

[591] And also partial defences defined as “infanticide” and “suicide pact”.

[592] Wilson v The Queen (1992) 174 CLR 313.

[593] Contrast with Scots law, where “[c]ulpable homicide is simply the causing of death by any unlawful act.  The unlawful act must be intentional, but it is quite immaterial whether death was the foreseeable result of that act.” (HM Advocate v Hartley 1989 SLT 135, at p 136 (Lord Sutherland)).

[594] Nyadam v The Queen [1977] VR 430, at pp 444-445.

[595] A general duty of care exists at common law;  but some Codes legislate specific duties of care.

[596] An objective test based on a reasonable person and reasonable foreseeability of death or injury:  P Fairall, Homicide:  Laws of Australia (1st edn, 2012) at pp 254-256.  Scots law is less clear, as previous case law indicating that an objective test was to be applied was qualified by dicta in Transco plc v HM Advocate (No 1) 2004 SCCR 1, at para [38], by taking account of “the actual state of mind of a person accused of culpable homicide of this kind” rather than basing the question of guilt or innocence on an objectively set standards.  Some commentators in Australia have argued for a subjective approach:  Model Criminal Code Officers Committee, Discussion Paper:  Fatal Offences against the Person (1998) at p 149.

[597] See Nyadam, cit sup:  many courts prefer not to define a gross departure, leaving it to the jury to decide the matter (see, for example, R v Stephenson [1976] VR 376, at p 383).  In Scotland, these elements are traditionally found in civil actions for damages rather than in criminal prosecutions.

[598] New South Wales, Victoria, Queensland, Western Australia, and Northern Territory.

[599] Reflecting the view that these offences are regarded as less serious, carrying less moral blameworthiness, than other manslaughter offences:  see C Ferguson and R Robson, “A legal and social analysis of ‘one punch’ cases in Western Australia” (2014) UWSLR 19 at pp 28-30.  Note however that the Criminal Code of Western Australia prescribes a sentence of 20 years imprisonment, apparently taking a graver view:  see Criminal Code (WA) section 281(1).  Also some critics argue that the statutory provisions have not solved the social issues underlying the offence, namely violence amongst groups of young men: C Ferguson and R Robson, op cit, p 43.

[600] Crimes Act 1958 (Vic) s 4A(4).

[601] Which has caused much debate and difficulty in many jurisdictions.

[602] Which uses both mens rea and actus reus.

[603] Criminal Code s 222(4).

[604] R v Creighton [1993] 3 SCR 3, 105 DLR (4th) 632, “where an experienced drug dealer and user, injected another user with heroin resulting in her death”:  see M Gibson and A Reed, “Reforming English Homicide Law” in A Reed and M Bohlander (eds), Homicide in Criminal Law: A Research Companion (2019) at p 54.

[605] Criminal Code s 231(4).

[606] Criminal Code s 231(5).  A killing in the course of any sexual crime is first degree murder, regardless of the gravity of the sexual offence.

[607] Which uses both mens rea and actus reus. A translation of the German Criminal Code by M Bohlander can be found at: https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html#p1939.

[608] German Criminal Code s 211.  An example of “a danger to the public” is setting an apartment building on fire:  K Ambos and S Bock, “Germany” in A Reed and M Bohlander (eds), Homicide in Criminal Law: A Research Companion (2019) at p 253.

[609] German Criminal Code ss 221, 222 and 251:  see generally K Ambos and S Bock (ibid).

[610] Coroners and Justice Act 2009, s 54-55.  In terms of section 54(2), it does not matter whether or not the loss of control was sudden.  Sexual infidelity is expressly excluded from the qualifying triggers for loss of self-control:  s 55(6)(c).

[611] Ibid s 52.

[612] Homicide Act 1957, s 4.

[613] A possible third category, “reckless manslaughter”, where the accused was aware that his or her conduct involved the risk of causing death or serious injury, and unreasonably took that risk, was considered by the LCEW to constitute either gross negligence manslaughter, or (where there was intent to injure), second degree murder; see Law Commission, Legislating the Criminal Code: Involuntary Manslaughter, Law Com No 237 (1996) para 2.26; F Stark, “Reckless Manslaughter” (2017) Crim LR 763; CMV Clarkson, “Context and Culpability in Involuntary Manslaughter: Principle or Instinct” in A Ashworth and B Mitchell (eds), Rethinking English Homicide Law (2000) p 135.

[614] Some think this too punitive where an accused did not intend to cause serious injury, and did not foresee the risk of death or injury: Law Com No 304 para 3.43; J Horder, Ashworth’s Principles of Criminal Law (8th edn, 2016) p 296;  (9th edn, 2019) p 300.

[615] R v Church [1966] 1 QB 59, a test criticised by some as too severe where the consequences were unforeseen: see Law Commission, Legislating the Criminal Code: Involuntary Manslaughter, Law Com No 237 (1996) para 3.5, giving an example of a push resulting in a fall and fatal brain injury, and the recommendation for abolition in para 5.16.  A real-life application of the test can be seen in R v M [2013] 1 WLR 1083 (the accused were guilty of manslaughter where physical contact during a disturbance caused the rupture of an asymptomatic aneurism with fatal blood loss).  However others consider that a person should be accountable for a violent unlawful act: CMV Clarkson, “Context and Culpability in Involuntary Manslaughter: Principle or Instinct” in A Ashworth and B Mitchell (eds) Rethinking English Homicide Law (2000) p 158-159.

[616] [1995] 1 AC 171 at p 187.  The LCEW criticised the test as being circular, leaving to the jury the question whether the actions of the accused were of a criminal nature (Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006) para 3.9); and also criticised the use of civil law terms such as “duty of care” and “negligence” (para 3.10).

[617] See ch 2, paras 2.44 and following paragraphs.

[618] Law Commission, A New Homicide Act for England and Wales? An Overview, Law Com CP No 177 (2005).

[619] See chs 2 and 4.

[620] Law Com No 304, para 9.9.

[621] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006).

[622] Ibid, para 1.01.

[623] Ibid.  In terms of the last ground (rationale for admitting the defence) they go on to say that defences can be divided into five broad categories of failure of proof defences, justifications, excuses, lack of capacity defences and non-exculpatory.

[624] Automatism is also briefly touched on in ch 11, Diminished responsibility: see paras 6.10 and 11.43 below.

[625] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) para 1.03.

[626] Both defences also given the technical, procedural classification of being “special defences” (along with mental disorder and self-defence).  Special defences are those that require the defence to give advance notice to the prosecution if they are to be pled at trial (see Criminal Procedure (Scotland) Act 1995, s 78(1)).  

[627] Error of fact is categorised by Chalmers and Leverick (para 1.06) as a “failure of proof” defence in that due to a relevant error of fact made by the accused, all or part of the mens rea of an offence is not satisfied.  Error of law, subject to some limited exceptions, is not a recognised defence in Scots law.

[628] Entrapment is an argument by the accused that he or she was tricked into committing a criminal offence by the police or a state official.  

[629] The superior orders defence (sometimes termed “justifiable homicide”), whilst cases are few and far between, has been recognised in Scots law usually in a military context where a soldier kills or commits another offence under the instruction of a superior officer whose orders he was bound to obey.  See for example the case of HM Advocate v Sheppard, 1941 JC 67, where a soldier shot and killed a deserter prisoner on being told by his lance corporal to shoot if necessary to prevent the prisoner from escaping.  The defence, however, can only be successful if the order is not obviously unlawful.

[630] Accident (sometimes known as “casual homicide”) is where a jury finds that a death was caused by a pure accident and, in those circumstances, no criminal liability attaches to the person even where, on the face of it, they appear to have been involved in bringing about the death. On the basis that a death due to an accident means all or part of the mens rea element of murder or culpable homicide is not satisfied, it is sometimes categorised as a “failure of proof” defence in a similar way to error of fact (see fn 7 above).

[631] We took a similar view in our Discussion Paper: Discussion Paper on Insanity and Diminished Responsibility, Scot Law Com DP No 122 (2003) paras 1.13 to 1.15.

[632] See para 6.5 above.

[633] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) para 3.02.

[634] Ibid.

[635] Self-defence being a complete defence which, if successfully pled, leads to acquittal; provocation, on the other hand, is a partial defence to murder which, if successfully pled, reduces a conviction for murder to one for culpable homicide.

[636] PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014), para 21.7.1.  And see ch 10, Provocation.

[637] Along with the common law defences of alibi and incrimination and the statutory defence of mental disorder (Criminal Procedure (Scotland) Act 1995, s 51A).  The Criminal Procedure (Scotland) Act 1995, s 78(2) provides that the defences of diminished responsibility, automatism, coercion or consent in relation to certain sexual offences are to be treated as if they were special defences.

[638] See Criminal Procedure (Scotland) Act 1995 s 78(1).

[639] See J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) paras 3.05 to 3.07 for more detail on Hume’s exposition of the defence.

[641] At p 125, (Lord Justice General Normand).  The case of Owens v HM Advocate has been followed in a long line of subsequent case law including Crawford v HM Advocate 1950 JC 67 at p 72, McCluskey v HM Advocate 1959 JC 39 at p 43, McLean v Jessop 1989 SCCR 13 at p 17, Jones v HM Advocate 1989 SCCR 726 at p 738 and Burns v HM Advocate 1995 SCCR 532 at p 537.

[642] Drury v HM Advocate 2001 SCCR 583.  See the detailed discussion of this case in ch 3, The language of Scots homicide law.

[643] PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014) para 21.8.5, referring to F Leverick, “Mistake in Self-Defence after Drury” (2002) 1 Jur Rev 35.

[645] See para [10] (Lord Kingarth).

[646] See F Leverick, “Unreasonable Mistake in Self-Defence: Lieser v HM Advocate” (2009) 13 Edin LR 100 at pp 103-104, J Chalmers, “Leiser and Misconceptions” 2008 SCL 1115 at p 1121 and PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014), para 21.8.6.

[647] 1995 SCCR 532, at p 536.

[648] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) para 3.09.  They cite the case of Shaw v R [2001] UKPC 26 for England and Lavallee v R [1990] 1 SCR 852 for Canada.

[649] See McCluskey v HM Advocate 1959 JC 39 at 43, (Lord Russell); Fenning v HM Advocate 1985 SCCR 219, at p 225; Burns v HM Advocate 1995 SCCR 532 at p 536; Pollock v HM Advocate 1998 SLT 880 at p 882.

[652] Additionally, as noted below in para 7.17, there is no duty to escape when acting in self-defence of another: see HM Advocate v Carson 1964 SLT 21 and Dewar v HM Advocate 2009 SCCR 548..

[653] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) para 3.13.

[654] They cite the case of R v Bird [1985] 1 WLR 816 in this regard.

[655] 1985 SCCR 219.

[656] At p 225.

[657] Ibid.

[658] 1954 JC 1, at pp 4-5.

[659] See HM Advocate v Carson 1964 SLT 21 and Dewar v HM Advocate 2009 SCCR 548.

[660] See Dewar v HM Advocate 2009 SCCR 548 and McCloy v HM Advocate 2011 SCL 282.

[661] See Boyle v HM Advocate 1992 SCCR 824; Pollock v HM Advocate 1998 SLT 880.

[662] Burns v HM Advocate 1995 SCCR 532However Chalmers and Leverick point out that such an approach is inconsistent with prior fault precluding resort to defences such as automatism, intoxication, coercion and necessity: see J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) at para 3.26.

[663] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) para 3.01.  For more detail on Hume’s exposition of the defence see paras 3.05 to 3.07.

[664] Namely excessive force in self-defence;  self-defence of property;  and self-defence in rape attacks.

[665] Domestic abuse.

[666] The other two requirements being imminent danger of death or serious injury (or reasonable belief that such existed), and violence used as a last resort:  see paras 7.6 and 7.11 above.

[667] Crawford v HM Advocate 1950 JC 67 at p 69 (Lord Justice General Cooper); Fenning v HM Advocate 1985 SCCR 219 at p 224 (Lord Cameron).  See J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) paras 3.17 and 3.18 for more detail.

[668] What follows is one style used by a trial judge: further formulations and styles may be found in The Judicial Institute for Scotland, Jury Manual.

[669] See para 8.11 below.

[670] Which might, in certain cases, more accurately reflect the jury’s view of events.

[671] As would the standard defence of self-defence, if accepted by the jury:  see para 7.1 above.

[672] F Leverick, Killing in Self-Defence (2006) p 174;  and see para 2.22 above.

[673] See the Supreme Court decision in R v Faid [1983] 1 SCR 265, a decision later confirmed in R v Reilly [1984] 2 SCR 396.

[674] Although the partial defence was recognised temporarily as a result of the case of Viro v R (1978) 141 CLR 88, that case was overturned 9 years later by the High Court in Zecevic v DPP, (1987) 162 CLR 645.  Some Australian states, such as South Australia and New South Wales, have since reintroduced the partial defence through legislation (see, for example, in New South Wales, the Crimes Act 1900, s 421).

[675] The Crimes Act 1961, ss 48 and 62, as amended by the Crimes Amendment Act 1980.

[676] See Law Commission, Report on Partial Defences to Murder, Law Com No 290 (2004) at para 4.31 and preceding paragraphs.

[677] In the Indian Penal Code since its inception - see exception 2 to s 300.

[678] The People (AG) v Dwyer [1972] IR 416; The People (DPP) v Barnes [2007] 3 IR 130; the Criminal Law (Defence and the Dwelling) Act 2011; and “First murder case defended under Defence and the Dwelling Act ends in acquittal” Irish Legal News (14 March 2018) available at: https://www.irishlegal.com/article/first-murder-case-defended-defence-dwelling-act-ends-acquittal. See too D Pendergast, “Defensive killing by initial aggressors: People (DPP) v Barnes revisited” (2015) 54 Irish Jur 115.

[679] PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014) para 21.9.9, adopting the same approach to errors of fact as in other areas of Scots criminal law.

[680] F Leverick, Killing in Self-Defence (2006), p 176.

[681] See ch 10, Provocation.

[682] Further variations of style can be found in the Judicial Institute for Scotland, Jury Manual.

[683] See para 8.26 and following paragraphs below.

[684] E Clive, P Ferguson, C Gane, and A McCall Smith.

[685] See Appendix for full text of section 23 of the Draft Criminal Code.

[686] Noting that this is in line with the European Convention on Human Rights, Article 2.

[687] For example, killing a thief where a robbery takes place “on the highway, in the night and in a solitary place” (Hume, i, 220) or repelling the invasion of one’s property where that invasion was made “in that forcible and felonious manner, which naturally puts the owner in fear” (Hume, i, 218-19).

[689] Ibid, at p 43 (Lord Justice General Clyde).

[690] 1987 SCCR 278.

[691] Ibid at p 281 (Lord Justice General Emslie).

[692] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) para 3.22.

[693] See Gunning v The Queen [2005] 1 SCR 627 at para [26].

[694] S 306(3)(d), but with an exception where there is an attempt to dispossess the accused of their dwelling.  Most US states have this rule and exception too.

[695] Crimes Act 1900, s 420.

[696] See the case of Ex p die Minister van Justisie: In re S Van Wyk 1967 (1) SA 488 (AD) where a shopkeeper set up a shotgun that would be triggered by anyone coming into the shop when closed, and displayed a warning notice to this effect.  A burglar triggered the shotgun on breaking into the store; he was hit in the chest and killed.  The shopkeeper relied on the South African defence of private defence and was acquitted of murder.  However, in the more recent case of Ex p The Minister for Safety and Security and the National Commissioner of the South African Police Service: In re The State v Walters and Walters (2002) 7 BCLR 663, the Constitutional Court of South Africa hinted that allowing killing in defence of property might be unconstitutional.  In the high profile appeal in the case of Oscar Pistorious, the Supreme Court of Appeal of South Africa held that the trial court should have found that the accused was guilty of murder and not culpable homicide, and that his defence of putative private defence could not be sustained: Director of Public Prosecutions, Gauteng v Pistorius (96/2015) [2015] ZASCA 204.   

[697] Protection of property extends to “unlawful appropriation, destruction, damage or interference”, and this section also applies to defendants who acted to “prevent criminal trespass” or “to make or assist in the lawful arrest of an offender or alleged offender or a person who is unlawfully at large”.

[698] Criminal Law Consolidation Act 1935, s 15A(4).

[699] F Leverick, Killing in Self-Defence (2006), ch 7.

[700] Ibid, p 137.

[701] Ibid, p 142.

[702] And also that there were no other ways of avoiding the attack, and that the householder’s responding violence did not go beyond what the jury considered to be reasonable force.

[703] E Clive, P Ferguson, C Gane, and A McCall Smith, Draft Criminal Code for Scotland (2003). Relevant extracts of the Code can be found in the Appendix at the end of this Discussion Paper.

[704] S 23(2)(c) and (d).

[705] S 23(3)(a).

[706] This can be viewed predominantly as a response to certain high-profile cases, such as the Tony Martin case (R v Martin (Anthony) [2001] EWCA Crim 2245), where a householder was convicted of murder for using what was deemed to be excessive force against intruders.

[707] Criminal Justice and Immigration Act 2008, s 76(6). Several amendments to s 76 were made by the Crime and Courts Act 2013, s 43 and these came into effect in April 2013.

[708] Criminal Justice and Immigration Act 2008, s 76(5A). A useful analysis of the language and concepts in s 76 can be found in R (on the application of Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin).  In particular, s 76 draws a distinction between “householder” cases where the accused believed (even wrongly) that the victim was a trespasser and the force used can be “disproportionate” (although not “grossly disproportionate”), and “non-householder” cases where no such belief is relevant.

[709] See S Miller, “‘Grossly Disproportionate’: Home Owners’ Legal Licence to Kill”,  (2013) 77(4) J Crim L 299-309; and see also the critique of the provision in DC Ormerod and K Laird, Smith, Hogan and Ormerod’s Criminal Law (15th edn, 2018) para 10.6.1.4.

[710] Frances Gibb, “Lawyers fight ‘licence to kill burglars’” The Times (25 January 2010) p 3.

[711] R (on the application of Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin).

[712] I Dennis, “What Should be Done about the Law of Self-Defence” [2000] Crim LR 417, quoting A Ashworth, The Human Rights Act and the Criminal Justice and Regulatory Process (1999).

[713] S Miller, “‘Grossly Disproportionate’: Home Owners’ Legal Licence to Kill” (2013) 77(4) J Crim L 199 at p 308.

[714] See ch 7, Self-defence, para 7.5.

[715] Writing in in late 18th and early 19th century.

[716] Hume, i, 218.

[718] 1998 SLT 880.

[719] But would now be regarded as rape.  See para 8.31 and following paragraphs, below.

[720] Male or female.

[721] An appeal which did not directly address the issue of defence against rape.

[722] 1998 SLT 880 at p 883.  The appeal court upheld the trial judge’s withdrawal of self-defence from the jury on the basis that a jury could not find other than that there had been excessive force.  The appeal was rejected on unrelated grounds.

[723] The 2009 Act implements recommendations made in: Scottish Law Commission, Report on Rape and Other Sexual Offences, Scot Law Com No 209 (2007).

[724] Sexual Offences (Scotland) Act 2009, s 2.

[725] See PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2014) paras 21.8.8 and R McPherson, “Fatal Self-defence Against Rape:  A Call for Clarification in Scots Law” (2012) Jur Rev 111 at p 125.

[726] Hume, i, 218.

[727] Hume, i, 301.

[728] McCluskey v HM Advocate, 1959 JC 39 at p 42.  Chalmers and Leverick comment that it would appear that the Lord Justice General “simply assumed it should be permissible” for a woman to kill to avoid rape, without offering any analysis or differentiation from his view concerning the male victim:  J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), para 3.21.

[729] F Leverick, Killing in Self-Defence (2006), ch 8.

[730] DB Kates Jr and NJ Engberg, “Deadly Force Self-Defense Against Rape” (1982) 15 UC Davis LR 873-906.

[731] It is often going to be difficult to separate out a threat of death or serious bodily injury and a threat of rape. In many cases of rape, it would be perfectly reasonable for the victim to believe that he/she might be killed or seriously injured if they resisted. So the arguably  “normal” law of self-defence is going to cover most cases. That only leaves the question of whether it is permissible to kill to prevent a rape where there was no accompanying danger of death/serious bodily harm and there were not reasonable grounds for the victim to think that there were. This is unlikely to be a large sub-set of cases and so this might be a question that arises more in theory than in practice.

[732] F Leverick, Killing in Self-Defence (2006), at p 152.

[733] Ibid, at pp 154 to 156.

[734] See paras 8.15 and following paras above, one argument being that loss of, or damage to, property could cause a similar level of psychological harm.

[735] J Hampton, “Defining Wrong and Defining Rape”, in K Burgess-Jackson (ed), A Most Detestable Crime: New Philosophical Essays on Rape (1999) at pp 118-56.

[736] J Gardner and S Shute, “The Wrongness of Rape”, in J Horder (ed), Oxford Essays in Jurisprudence, Fourth Series (2000) at pp 193-217.

[737] Ibid, at p 204.

[738] F Leverick, Killing in Self-Defence (2006), at pp 157-158.

[739] Ibid, at p 158.

[740] The common law prior to the redefinition of rape in the 2009 Act.  Non-consensual sodomy would now be considered rape.

[741] Scots law takes such an approach, as killing in self-defence is allowed only in response to a threat to life or serious injury, and a threat of rape.

[742] See F Leverick, Killing in Self-defence (2006) at pp 143-144;  R v Clugstone, reported in The Times, 1 October 1987, where the trial judge directed the jury to acquit the defendant, on the basis that there was no evidence to contradict her account that she had only killed her victim as he was attempting to rape her;  R v Wheeler [1967] 1 WLR 1531 at p 1534, where the defendant claimed he had killed only to protect his girlfriend from being raped:  the judge directed the jury that “If the attack on [the deceased] was justified and was no more than was reasonably necessary to prevent rape then it would not be an unlawful attack”.

[743] [1971] AC 814, a decision of the Privy Council.

[744] [2001] EWCA Crim 2245, a decision of the Appeal Court.

[745] Martin, paras 4-5.  Cf Palmer at p 831:  the test is simply about judging “what is reasonably necessary”.  In the view of the Law Reform Commission of Ireland, Legitimate Defence (LRC CP 41-2006) para 2.16: “any remnants of the traditional threshold rules were swept away by this decision”.

[746] See paras 8.48 and 8.50 below.

[747] But such commentary was written before the Sexual Offences (Scotland) Act 2009, and the law in Scotland may be less clear following upon the 2009 Act.

[748] [1994] 3 IR 289 at pp 298-300.

[749] [1972] IR 416 at p 420.

[750] People (AG) v Keatley [1954] IR 12 at p 16, regarding as a “legitimate defence” a fatal self-defence effected in order to protect against  “some felony involving violence or … some forcible and atrocious crime”.

[751] Law Reform Commission of Ireland, Defences in Criminal Law (LRC 95-2009) para 2.47.

[752] Ibid, para 2.58.

[753] MPC s 3.04(2)(b):  a definition narrower than Scots law: see Lord Advocate’s Reference (No 1 of 2001) 2002 SCCR 435, and the 2009 Act, s 1.

[754] NYPC s 35.15(2)(b).  A “forcible” criminal sexual act is a narrower definition than Scots law, and also narrower than the provision in the MPC. 

[755] Which includes “rape”:  cf F Leverick, Killing in Self-defence (2006) at p 145 fn 23.

[756] S v Jackson 1963 (2) SA 626 (A).

[757] S v Steyn (105/09) [2009] ZASCA 152.

[758] Ibid, at para 19.

[759] For example, the Lion Mama case where a mother found three men raping her daughter.  The mother killed one, and injured the other two.  When the mother was charged with murder, there was such public anger that the Director of Public Prosecutions dropped all charges: Gavin Fischer, “Lion Mama: The woman who fought off her daughter’s rapists” BBC News (31 March 2019) available at: https://www.bbc.co.uk/news/stories-47726967.

[760] (Vic) [1987] HCA 26 Brennan J at para 2 concerning a man killing someone attempting to rape his wife:  see commentary by F Leverick, Killing in Self-defence (2006) at p 146.

[761] Cf another obiter comment in R v Lane (1983) 8 A Crim R 182, at p 183 (Lush J) which said killing to prevent rape would be justified.

[762] Zecevic para 17, with a more general “reasonableness’ approach being adopted. Re the court’s use of the term “serious bodily harm”, note the argument advanced in F Leverick, Killing in Self-defence (2006) at p 152 (and discussed at para 8.39 above) that “we are permitted to kill in self-defence because we have a right to life and therefore a right to defend ourselves from unjust threats to our life. [Where someone causes serious bodily harm but does] not threaten the life of their victims … they do not forfeit their own right to life and we should not, therefore, be permitted to kill them. [The] argument that killing to prevent rape is permissible because the harm of rape is equivalent to serious bodily harm is therefore rejected. Rather … an argument must be constructed that the harm of rape … is equivalent to, or at least approaches, the harm of deprivation of life itself.”

[763] Ie not specifically fending off a rape attack.

[764] Death or grievous bodily harm in Queensland, in its Criminal Code Act 1899, s 271(2);  “death or really serious injury” in Victoria, in the Crimes Act 1958, s 322K.

[765] “A reasonable response in the circumstances as he or she perceives them” in New South Wales, in the Crimes Act 1900, s 418(2).

[766] There is no provision expressly concerning the use of lethal self-defence to prevent rape.

[767] As the Court of Appeal affirmed in R v Kneale [1998] 2 NZLR 169 at p 178.  The New Zealand Law Commission have asked the question “is it reasonable to use deadly force if that is the only way to … prevent a sexual assault that does not amount to serious bodily harm?” see New Zealand Law Commission, Battered Defendants:  Victims of Domestic Violence who Offend (Preliminary Paper 41, 2000) at para 49.  However the question is not answered in the subsequent Report on Some Criminal Defences with Particular Reference to Battered Defendants (Report 73, 2001), a report which has not been implemented.

[768] See, for example, J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) para 3.20;  R McPherson, “Fatal Self-defence Against Rape:  A Call for Clarification” (2012) 2 Jur Rev 111 at p 112.

[769] See paras 8.42, 8.48, and 8.50 above.

[770] See para 8.5 and following paragraphs above.

[771] This was experienced in Victoria, Australia, whereby a defence of “defensive homicide” was introduced in 2005 to help victims of family violence, but was subsequently abolished in 2014 as it had not operated as intended: see below at ch 12, Domestic abuse, para 12.67.

[772] In Scotland in 2017-18, 95% of persons accused of homicide were male: Homicide in Scotland 2017-18 (Scottish Government, 2018) pp 8-9 available at: https://www.gov.scot/publications/homicide-scotland-2017-18/.  In 2018-19 88% of persons accused of homicide were male: Homicide in Scotland 2018-19 (Scottish Government, 2019) pp 8-9 available at: https://www.gov.scot/publications/homicide-scotland-2018-19/.

[773] See para 8.30 and following paragraphs above.

[775] Later reflected in the 2009 Act.

[776] Physically, emotionally, and psychologically.

[777] Known as “duress of circumstances” in English law.

[778] Known as “duress by threats” in English law.

[779] See para 7.2.

[781] Although Tudhope v Grubb 1983 SCCR 350 provided an earlier example of a successful plea of necessity in the sheriff court.

[782] 1983 SCCR 368. However, as this was an armed robbery case, the court reserved its opinion on whether coercion could operate as a defence to a charge of murder.

[784] See J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), para 4.03 (necessity) and paras 5.04 to 5.06 (coercion) for more detail on these theoretical distinctions in relation to the defences. 

[785] Ibid, para 4.03 and para 5.06.  The authors acknowledge that the importance of reaching such a conclusion is, in their view, perhaps overstated.

[787] See quote at para 9.4 above.

[788] 1999 SCCR 698. This case is discussed at para 9.21 below.

[789] 2001 SCCR 296.

[790] Along with several other arguments advanced by the defence.

[791] 1997 SCCR 215 at p 220, linking it to earlier statements made by Hume in relation to the defence of coercion and also the coercion case of Thomson v HM Advocate, 1983 SCCR 368.

[792] 1997 SCCR 215 at p 220.  Chalmers and Leverick point out in Criminal Defences and Pleas in Bar of Trial (2006) para 4.08, that some critics have suggested that the defence should not be limited to cases involving such a serious threat.  They suggest that, whilst this restriction may make sense if necessity is viewed as an excuse defence, it makes less obvious sense if necessity is viewed as a justification defence.

[793] The requirement for proportionality is similar to other defences such as provocation and self-defence.

[794] Lord Advocate’s Reference (No 1 of 2000) 2001 SCCR 296 at para [47].

[795] Ibid at para [44].

[796] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), para 4.10 where they refer to the cases of R v Abdul-Hussain [1999] Crim LR. 570, at 7 and R v Shayler [2001] EWCA Crim 1977 at para [63].

[798] 2001 SCCR 296 at para [37].

[799] Ibid.

[800] Ibid at para [39].

[802] Lord Advocate’s Reference (No 1 of 2000), 2001 SCCR 296 at para [46].

[803] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), para 4.16 where they refer in a footnote to the cases of Tudhope v Grubb, 1983 SCCR 350; Ruxton v Lang, 1998 SCCR 1; and Dolan v McLeod, 1999 JC 32.

[805] Ibid at p 703. 

[806] Lord Advocate’s Reference (No 1 of 2000) 2001 SCCR 296 at para [42].

[807] 1989 SCCR 138.

[808] Ibid at p 142.

[809] It is not clear whether necessity could be a defence to culpable homicide in Scots homicide law.  There is little authority.  In PR Ferguson and C McDiarmid, Scots Criminal Law:  A Critical Analysis (2nd edn, 2014) para 21.4.6, the authors note that “[i]n the (unreported) case of HM Advocate v Anderson (2006) … the trial judge, Lord Carloway, directed the jury that necessity is ‘a complete defence to the charges of murder, culpable homicide and assault’ …”.  However the authors point out that the case did not reach the appeal court, so there was no opportunity for an authoritative ruling.

[810] Compared to more established defences such as self-defence.

[811] Moss v Howdle 1997 SCCR 215.

[812] PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd ed, 2014), para 21.4.6.  The words in quotes appear in correspondence between one of the authors and the lawyer who represented Mr Anderson at trial.  They note that the accused was acquitted of all charges.

[814] There was also discomfort from the court that it was the weakest member of the party that had been chosen for sacrifice.

[815] (1884) 14 QBD 273 at p 286-287.

[817] Ibid, at p 531 (Ward LJ) and p 549 (Brooke LJ).

[818] See J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), paras 4.23 and 4.24 for more detail on the case.

[819] This was the view of Ward LJ in the case. The basis upon which the other judge, Walker LJ, decided the case is unclear.

[820] In Canada, the Supreme Court in R v Latimer, 2001 SCC 1, “express[ed] doubts that any factual scenario involving murder could arise in which the proportionality requirement of the defence would be met”: J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) para 4.24. In Australia, the Court of Appeal of the Supreme Court of Victoria, in the case of R v Japaljarri (2002) 134 A Crim R 261 at p 270, stated that “it is unlikely that the defence of necessity is available for the crime of murder”.

[821] The German Criminal Code s 34.

[822] Ibid s 35.

[823] Danger to “life, limb, liberty, honour, property or another legal interest”.

[824] Being the legal interest in life, limb, liberty, honour, property or other.

[825] A mistaken assumption of the existence of such a danger would result in a penalty only if the mistake was avoidable.

[826] See Appendix for text of section 24 of the Draft Code.

[828] This is a variation of the classic thought-experiment known as the “trolley problem”. Imagine a trolley (or train) is on track to crash into a group of people.  It is possible to press a switch which would divert the trolley on to a different track, which would cause the trolley to crash into only one person instead. Is it more ethical to omit to act, and allow the trolley to hit the group, or is it more ethical to take deliberate action to sacrifice one person to save the group?

[829] “Duress” as a defence in English law encompasses what Scots law recognises as the separate defences of necessity (duress of circumstances) and coercion (duress by threats). 

[830] Law Commission, A New Homicide Act for England and Wales? Law Com CP No 177 (2005).

[831] Ibid, para 7.31.

[832] Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006).

[833] Ibid, paras 6.1 to 6.4 and 6.21.  Interestingly, para 6.17 notes that a considerable, but not overwhelming, majority of respondents to the Consultation Paper thought that duress should be a partial rather than a complete defence. 

[834] Also see paras 6.44 to 6.65 for a fuller exposition of the LCEW’s reasons for concluding duress should be a full defence rather than a partial one.

[835] See the Law Reform Commission of Canada, Recodifying Criminal Law (1987), pp 35-36.

[836] For more detail on these arguments see J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), paras 4.25 to 4.31.

[837] Ibid, para 4.31. 

[838] Ibid, para 4.26.

[839] Ibid, para 4.26.

[841] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) para 4.28, citing E Kant (translated by John Ladd), Metaphysical Elements of Justice (1965), p 41.

[842] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), para 4.30.

[843] Ibid, para 4.31.  However, they suggest that this option would be less palatable to those who believe the accused who kills out of necessity is not sufficiently blameworthy to be labelled a murderer.

[844] See ch 1, para 1.30.

[845] See ch 10 and ch 11 respectively for discussion of those defences. 

[846] Known in England as “duress by threats” and “compulsion” in some jurisdictions such as Canada and some Australian states.

[847] PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd ed, 2014), para 21.2.1. 

[848] See Hume, i, 53 - first published in 1797.  For more detail on Hume’s exposition of the defence see J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), paras 5.07 to 5.09.

[849] 1983 SCCR 368. However, as this was an armed robbery case, the court reserved its opinion on whether coercion could operate as a defence to a charge of murder.

[850] ie (1) an immediate danger of death or great bodily harm and (2) an inability to resist the violence.

[851] ie (1) a backward and inferior part in the perpetration and (2) a disclosure of the fact as well as restitution of the profit on the first safe and convenient occasion.

[854] And we discuss the facts of the case below in that context.

[856] The English equivalent of the Scottish defence of coercion.

[858] See again the case of DPP for Northern Ireland v Lynch [1975] AC 653 at pp 687 to 688 (Lord Simon) and also the English case of R v Howe [1987] AC 417, at pp 443 to 444 (Lord Griffiths) and at p 434 (Lord Hailsham).

[859] Judicial Institute for Scotland, Jury Manual, p 10.3.  A similar paragraph appears in the style direction for necessity on page 26.3 of the Jury Manual.

[861] Hume, i, 53.

[862] 1983 SCCR 368 at p 372.  The case law to date has dealt only with relatively serious offences such as robbery and as yet there have been no cases involving relatively minor offences.

[863] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), paras 5.11 and 5.12 and associated footnotes for further detail.

[864] (1976) SCCR Supp. 146.

[865] (1977) SCCR Supp. 169.

[866] See R v Ortiz (1986) 83 Cr App R 173.  Chalmers and Leverick go further and suggest that the defence of coercion would also be available when the threats are made to persons who are not members of the accused’s family, whether they be friends, acquaintances or indeed complete strangers (see Criminal Defences and Pleas in Bar of Trial (2006), para 5.13). 

[867] Hume, i, 53.

[868] Thomson v HM Advocate, 1983 SCCR 368 at p 380.  See also Trotter v HM Advocate 2000 SCCR 968 which re-affirmed the requirement for immediate danger.

[870] See opinion of Widgery LJ at pp 206 to 207 - “It is essential to the defence of duress that the threat shall be effective at the moment when the crime is committed.  The threat must be a ‘present’ threat in the sense that it is effective to neutralise the will of the accused at that time… threats sufficient to destroy his will ought to provide him with a defence even though the threatened injury may not follow instantly, but after an interval.”

[871] 28 F. 3d 565 (1994).

[872] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), para 5.14.

[873] [2001] 1 SCR 687.

[874] In Ruzic, the accused was charged with illegally importing drugs into Canada from Serbia and claimed that a man in Serbia had threatened to harm her family there had she not done so.  The man who made the threats lived in Belgrade and did not accompany the accused to Canada with the result that the immediacy requirement, and a related requirement that the threatener be present at the commission of the offence, were not met.  The Canadian Supreme Court held that the defence ought to be available to the accused, even though she was not faced with an immediate threat at the time of the offence.  The Court declared the immediacy (and presence) requirements of the defence as set out in the Code as unconstitutional on the basis that they infringed the principles of fundamental justice by permitting the conviction of persons whose conduct was “morally involuntary.”

[875] Hume, i, 53.

[876] 1983 SCCR 368 per Lord Wheatley at p 378 quoting from Lord Hunter’s trial direction.

[877] Ibid at p 80.

[878] 2001 SCCR 65.

[879] 2001 SCCR 65 at para [10].

[880] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), para 5.17.  For more on the retreat rule in self-defence see ch 7.

[881] Hume, i, 53.

[883] Ibid.

[884] Hume, i, 53.

[887] 2001 SCCR 655 at para [20].

[888] Ibid, at para [29].

[889] Ibid, at para [21] (Lord Justice General Rodger).

[890] 1983 SCCR 368 at p 381 (Lord Wheatley).

[891] 1991 SCCR 898.

[892] Ibid, at p 902 (Lord Allanbridge).

[893] Obiter dictum - a Latin term meaning “by the way”.  Used in the legal context to describe a remark in a judgment that is “said in the passing” and not binding.

[894] Judicial Institute for Scotland, Jury Manual, p 10.1, emphasis added.

[895] [1987] AC 417 and confirmed in R v Hassan [2005] UKHL 22 at para [21] (Lord Bingham).  The case of R v Gotts [1992] 2 AC 412 held that it is also not available in cases of attempted murder.

[897] See McConnell [1977] 1 NSWLR (CCA) 714 (New South Wales); Brown and Morley [1968] SASR 467 (South Australia).

[898] See Crimes Act 1961, s 24(2)(e). 

[899] Or an equivalent defence called compulsion or duress.

[900] See S v Goliath 1972 (3) SA 1 (AD) which was applied in the case of S v Peterson 1980 (1) SA 938 (A). Notably, this is the opposite conclusion to that reached by the Canadian Law Reform Commission noted at para 9.40 above.

[901] Which was amended by the Crimes (Homicide) Act 2005, s 6 to add a new section 9AG dealing with duress.

[902] Draft Code, s 29(3).  For text of section 29 see Appendix.

[903] For more detail of the LCEW’s consideration of this issue see paras 9.38 and 9.39.

[904] Law Reform Commission of Ireland, Duress and Necessity (LRC CP 39-2006).

[905] Ibid, paras 3.100 to 3.101.

[906] Victorian Law Reform Commission, Defences to Homicide (No 94, 2004). 

[907] Ibid, para 3.513.

[908] 1991 SCCR 898 at p 902.

[909] See paras 9.41 to 9.49 above.

[911] Ibid, at p 439.

[912] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), paras 5.29 to 5.31. 

[913] Ibid, para 5.30.

[914] See paras 9.59 to 9.60 above.

[915] [1987] AC 417 at pp 443-444 (Lord Griffiths) and at p 434 (Lord Hailsham).

[916] [1975] AC 653 at p 688 (Lord Simon).

[917] 1983 SCCR 368 at pp 373-374 (Lord Hunter).

[918] The Draft Criminal Code for Scotland makes such provision at section 29(2)(b).  New Zealand also seems to make similar provision in the Crimes Act 1961, s 24(1).

[919] [1987] AC 417 at 433 (Lord Hailsham).

[920] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), para 5.31. 

[921] See para 9.49 for further detail.

[922] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), para 5.31.

[923] See ch 1, para 1.30.

[924] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006), para 5.31. 

[925] See earlier discussions at paras 2.13 and 5.2.  As noted, most commentators and practitioners use the concept of “reducing” murder to culpable homicide, despite the doubts expressed by Lord Justice General Rodger in Drury v HM Advocate 2001 SCCR 583.

[926] See ch 11, Diminished responsibility, below.

[927] Hume, Commentaries, i 248.

[928] See the standard directions given to a jury, set out in ch 8 at para 8.11, and recent illustrations in McAulay v HM Advocate 2018 SCCR 338Lawson v HM Advocate 2018 SCCR 76.

[929] See, for example, McAulay and Lawson, ibid.

[930] See Copolo v HM Advocate 2017 SCCR 45, elaborating the definition set out in Drury v HM Advocate 2001 SCCR 583 and Gillon v HM Advocate 2006 SCCR 561

[931] Verbal abuse is not sufficient:  see para 10.7 below.

[932] In the context of sexual infidelity, an accused may seek to rely on provocation where he or she has killed (i) the person of whom sexual fidelity was expected; and/or (ii) that person’s lover.  Whether the jury ultimately gives effect to the plea is a matter for them.

[933] Copolo v HM Advocate 2017 SCCR 45 at para [25] (Lord Turnbull).

[934] Macdonald, Criminal Law of Scotland (5th edn, 1948), p 94:  “Being agitated and excited, and alarmed by violence, I lost control over myself, and took life, when my presence of mind had left me, and without thought of what I was doing.” - a definition approved in Cosgrove v HM Advocate 1990 SCCR 358 at p 360;  and Law v HM Advocate 1993 SCCR 493 at p 506.

[935] Macdonald at p 94:  “Provocation, although great, will not palliate guilt if an interval has elapsed between the provocation and the retaliation”;  and Alison, Principles of the Criminal Law of Scotland (1832) at p 8:  “The defence of provocation will not avail the accused, if the fatal acts are done at such a distance of time after the injury received as should have allowed the mortal resentment to subside”.   The requirement of immediacy is discussed in HM Advocate v Hill 1941 JC 59 (Lord Patrick);  Thomson v HM Advocate 1985 SCCR 448;  Parr v HM Advocate 1991 SCCR 180 (Lord Hope);  Drury v HM Advocate 2001 SCCR 583 (Lord Rodger).

[936] Copolo v HM Advocate 2017 SCCR 45 at para [25] (Lord Turnbull);  Gillon v HM Advocate 2006 SCCR 561 at para [30] (Lord Osborne).

[937] Drury v HM Advocate 2001 SCCR 583 at para [29] (Lord Rodger).  The court acknowledged that a “proportionality” test could not apply in the sexual infidelity limb of provocation, as a killing could never be regarded as proportionate to infidelity:  Drury, para [28].

[938] 1994 SCCR 589 at pp 593-594.

[939] The “ordinary man” test applicable in the sexual infidelity branch of provocation does not apply in cases of provocation by violence:  see Gillon v HM Advocate 2006 SCCR 561, Drury v HM Advocate 2001 SCCR 583, particularly paras [19] and [39].  The sexual infidelity branch is regarded as an exceptional form of provocation;  see C McDiarmid, “Don’t Look Back in Anger:  The Partial Defence of Provocation in Scots Criminal Law” in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010) at p 203.

[940] Judicial Institute for Scotland, Jury Manual, para 6 of the commentary on Provocation, referring to Jones v HM Advocate 1990 JC 160, at p 173, 1989 SCCR 726.

[941] Copolo v HM Advocate 2017 SCCR 45 at para [24];  Brady v HM Advocate 1986 SCCR 1981.

[942] Hume, Commentaries, i, 241, confirmed in Donnelly v HM Advocate 2017 SCCR 571.

[943] Macdonald at p 93.

[944] Although the issue is still the subject of debate:  see para 10.38 below.

[945] See para 10.40 below.

[946] New Zealand had earlier abolished the mandatory life sentence for murder in 2002 (Sentencing Act 2002, s 165), thus removing the important role played by provocation in reducing what would otherwise be murder (with a mandatory life sentence) to a lesser offence. 

[947] See ch 12, Domestic abuse, discussing increasing recognition of non-physical abuse and the harm of coercive control.

[948] I Cairns, “Feminising Provocation in Scotland:  The Expansion Dilemma” (2014) 4 Jur Rev 237 at p 260.

[949] (1976) SCCR (Supp) 156.

[950] 1983 SCCR 190.

[951] A McCall Smith, “Homicide”, 7 The Laws of Scotland (Stair Memorial Encyclopaedia), para 273.

[953] Ibid, para [40].

[954] Ibid, para [21].

[955] Cf ibid.

[956] Criminal Code Act 1899, s 268. The reduction of what would be murder to manslaughter by reason of provocation is dealt with in s 304.

[957] Crimes Act 1900, s 23.

[958] See paras 8.11 and 10.2 above.

[959] See para 10.2 above.

[960] See paras 8.11 to 8.12 and 8.21 above.

[961] Donnelly v HM Advocate 2017 SCCR 571 at para [40]; J Casey, “Commentary on Drury v HM Advocate”, in S Cowan, C Kennedy and VE Munro (eds), Scottish Feminist Judgments: (Re)Creating the Law from the Outside In (2019) at p 122;  I Cairns, “Feminising Provocation in Scotland:  The Expansion Dilemma”, (2014) 4 Jur Rev 237 at p 239.

[962] I Cairns, “Feminising Provocation in Scotland: The Expansion Dilemma”, (2014) 4 Jur Rev 237 at pp 239, 241, and 243; C McDiarmid, “Don’t Look Back in Anger: The Partial Defence of Provocation in Scots Criminal Law”, in J Chalmers and F Leverick (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010) at p 204. McDiarmid, op cit, p 208.

[963] See the war-time cases of HM Advocate v Hill 1941 JC 59, and HM Advocate v Delaney 1945 JC 138, 1946 SLT 25;  and G Gordon’s commentary on Drury v HM Advocate 2001 SCCR 583 at p 618.

[964] Honour killings have been defined as occurring “when a male family member kills a female family member for bringing dishonour upon the family through sexual activity outside of marriage, although it can be embraced within instances of flirting, refusing to marry a man chosen by their family, or even in instances of rape. This is usually due to either a religious or cultural belief that standardises and inculcates loss of control.”  See A Clough, “Honour Killings, Partial Defences and the Exclusionary Conduct Model” (2016) J Crim Law 177 at p 181.  For an example of an “honour killing” where the accused (unsuccessfully) sought to rely on the provocation defence under English law, see R v Mohammed (Faqir) [2005] EWCA Crim 1880See also NHS Scotland, “Harmful traditional practices: what health workers need to know about gender-based violence” (2009) at pp 3-4. Available at: http://www.healthscotland.scot/media/2100/gbv-harmful-traditional-practices.pdf; Police Scotland, “Honour based violence, forced marriage and female genital mutilation standard operating procedure” (2016) at pp 6-8 and 16-17. Available at: https://www.scotland.police.uk/assets/pdf/151934/184779/honour-based-violence-forced-marriage-female-genital-mutilation-sop .

[965] I Cairns, “Feminising Provocation in Scotland: The Expansion Dilemma(2014) 4 Jur Rev 237 at p 242.  The Scottish Government’s homicide statistics for 2017-18 showed that 95% of those prosecuted for homicide were male, and of female victims, 50% were killed by a partner or ex-partner, with the most common set of circumstances for female victims (1/5) being in a dwelling in a fight with a partner or ex-partner: https://www.gov.scot/Resource/0054/00542535.pdf  at pp 2 and 15.

[966] R v Smith [2000] 1 AC 146 at p 169.

[967] Hume, i 245-246.

[968] (1731) Maclaurin 625.

[969] HM Advocate v McWilliam, High Court at Edinburgh, November 5 1940, unreported:  see The Times, 6 November  1940, at p 9, referred to in J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) p 205.

[970] HM Advocate v Hill 1941 JC 59.

[971] See for example HM Advocate v Hill 1941 JC 59, where a soldier returning from service killed his wife and another man on the basis of an admission that they were having an affair;  cf Drury v HM Advocate 2001 SCCR 583. This could also be seen as an example of verbal provocation: see para 10.7 and following paras.

[972] McDermott v HM Advocate 1973 JC 8, at p 11;  McKay v HM Advocate 1991 SCCR 364, at p 367; HM Advocate v McKean 1996 SCCR 402;  Rutherford v HM Advocate 1997 SCCR 711 at pp 718-719;  Drury v HM Advocate 2001 SCCR 583.

[973] Drury v HM Advocate 2001 SCCR 583.

[974] V Tadros, “The Scots Law of Murder” in J Horder (ed), Homicide Law in Comparative Perspective (2007) at p 204.

[975] Drury v HM Advocate 2001 SCCR 583 at para [29].

[976] For example, R v Smith (Morgan) [2001] 1 AC 146  (England and Wales); R v Rongonui [2000] 2 NZLR 385 (New Zealand);  Luc Thiet Thuan v The Queen [1997] AC 131 (Hong Kong).

[978] Reliable statistics concerning adultery and infidelity are (perhaps unsurprisingly) difficult to come by. However, most studies report that slightly higher numbers of men commit adultery compared with women, and the rates appear to be reported at around 20-25% for men and 15-20% for women: KP Mark, E Janssen and RR Milhausen, “Infidelity in Heterosexual Couples: Demographic, Interpersonal, and Personality-Related Predictors of Extra-Dyadic Sex” (2011) 40 Arch Sex Behav 971-982. YouGov statistics for the UK from 2015 show that 20% of men have had an affair compared with 19% of women: https://yougov.co.uk/topics/lifestyle/articles-reports/2015/05/27/one-five-british-adults-admit-affair.

[979] Drury, para 9. The reported cases to date bear this out: see ch 12, fn 4.

[980] J Casey, “Commentary on Drury v HM Advocate”, in S Cowan, C Kennedy and VE Munro (eds), Scottish Feminist Judgments: (Re)Creating the Law from the Outside In (2019) at p 122.

[981] C McDiarmid, “Don’t Look Back in Anger: The Partial Defence of Provocation in Scots Criminal Law”, in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010) at p 216.

[982] V Tadros, “The Scots Law of Murder” in J Horder (ed) Homicide Law in Comparative Perspective (2007) at p 202.

[983] A Clough, “Honour Killings, Partial Defences and the Exclusionary Conduct Model” (2016) J Crim Law 177 at p 179.

[984] See Chapter 1, Introduction, para 1.44.

[985] See, for example, SSM Edwards, “‘Loss of self-control’:  The cultural lag of sexual infidelity and the transformative promise of the fear defence” in A Reed and M Bohlander (eds), Homicide in Criminal Law: a Research Companion (2019) at p 82.

[986] S 1(3) of the 2018 Act.

[987] See, for example, K Trevellion et al, “Experiences of Domestic Violence and Mental Disorders: A Systematic Review and Meta-Analysis”, (2012) 7(12) PLOS ONE e51740; and M A Pico-Alfonso et al, “The Impact of Physical, Psychological, and Sexual Intimate Male Partner Violence on Women’s Mental Health: Depressive Symptoms, Posttraumatic Stress Disorder, State Anxiety, and Suicide” (2006) 15(5) J Women’s Health 599.

[988] S v Eadie 2002 (3) SA 719 (SCA).

[989] G Kemp, “South Africa” in A Reed and M Bohlander (eds), Homicide in Criminal Law: A Research Companion (2019) 195 at p 211.

[990] S v Ferreira 2004 (2) SACR 454 (SCA).

[991] V Bergelson, “United States of America” in A Reed and M Bohlander (eds), Homicide in Criminal Law:  a Research Companion (2019) 216 at pp 236-237.

[992] Ibid, at p 236-237, paraphrased, with quotations.

[993] Based on the Model Penal Code:  MPC s 210.3(1)(b).

[994] V Bergelson, “United States of America” in A Reed and M Bohlander (eds), Homicide in Criminal Law: A Research Companion (2019) 216 at pp 237-238.  Thus it is not clear whether a low IQ, depression, post-traumatic stress disorder, or a history of domestic abuse, should be taken into account.  In Vigilante, 608 A.2d at 429-30, a history of ill treatment was acknowledged to be relevant.

[995] German Criminal Code, s 213; K Ambos and S Bock, “Germany” in A Reed and M Bohlander (eds), Homicide in Criminal Law: A Research Companion (2019) 245 at p 260.

[996] Crimes Act 1961, s 169.

[997] The Crimes (Provocation Repeal) Amendment Act 2009, following upon a public outcry against a narcissistic killer who gave evidence over several days in an attempt to excuse calling at his ex-girlfriend’s house and stabbing her 216 times (the Weatherston case).

[998] Cf R v Rihia [2012] NZHC 2720.

[999] J Tolmie, “New Zealand” in A Reed and M Bohlander (eds), Homicide in Criminal Law:  a Research Companion (2019) 216 at p 281.

[1000] Criminal Code Act 1899, s 304.

[1001] Crimes Act 1900, s 23.

[1002] Criminal Code Act 1983, s 158.

[1003] Crimes Act 1900, s 13.

[1004] J Casey, “Commentary on Drury v HM Advocate” in S Cowan, C Kennedy and VE Munro (eds), Scottish Feminist Judgments: (Re)Creating the Law from the Outside In (2019) at p 125; C Wells, “Provocation: The Case for Abolition” in A Ashworth and B Mitchell (eds), Rethinking English Homicide Law (2000) in the context of English law.  See also the summary of calls for abolition in other jurisdictions:  J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) para 10.01.

[1005] C McDiarmid, “Don’t Look Back in Anger:  The Partial Defence of Provocation in Scots Criminal Law” in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010).

[1006] I Cairns, “Feminising Provocation in Scotland: The Expansion Dilemma” (2014) 4 Jur Rev 237.

[1007] New Zealand Law Commission, Battered Defendants:  Victims of Domestic Violence Who Offend (Preliminary Paper 41) para 94.

[1008] Coroners and Justice Act 2009, s 56.

[1009] S 55(3).

[1010] S 54(2).

[1011] S 55(6)(c).  However in R v Clinton, Parker and Evans [2012] EWCA Crim 2 at para [31], the Court of Appeal in England held that sexual infidelity could be taken into account as one of several factors causing loss of control.  Only where it constitutes the sole qualifying triggering factor is it to be left out of account.

[1012] S 54(1)(c).

[1013] S 54(4).

[1014] See the current requirements in Scots common law, set out in para 10.3 above, and the specific statutory provisions in England (Coroners and Justice Act 2009, ss 54-55).

[1016] J Chalmers, “Collapsing the Structure of Criminal Law”, 2001 SLT (News) 241 at p 244.

[1017] Cf the observation in Drury v HM Advocate 2001 SCCR 583 at para [27] (Lord Justice General Rodger):  “ … whatever the policy arguments [concerning provocation] may be one way or the other, they must be for consideration by the legislature …”.

[1018] For an overview of the defence of mental disorder, see paras 11.39 to 11.41 below.

[1019] The other being provocation:  see ch 10, Provocation.

[1020] Authoritatively defined in Galbraith v HM Advocate 2001 SCCR 551. The defence of diminished responsibility can be traced back to the mid-19th century: Alexander Dingwall 1867 5 Irv 466.

[1021] Inserted by the Criminal Justice and Licensing (Scotland) Act 2010, s 168, following recommendations in our Report on Insanity and Diminished Responsibility, Scot Law Com No 195 (2004).

[1022] “Mental disorder” in s 51B has the meaning given by the Mental Health (Care and Treatment) (Scotland) Act 2003, s 328:  see s 307 of the Criminal Procedure (Scotland) Act 1995.   “Mental disorder” covers mental illness, personality disorder, and learning disability; but s 328 specifically provides that a person is not mentally disordered by reason only of, among other things, use of alcohol or drugs; behaviour that causes harassment, alarm or distress to any other person; and acting as no prudent person would act.

 

[1023] A lesser standard of proof than “beyond reasonable doubt”:  cf Lilburn v HM Advocate 2012 JC 150.

[1024] Criminal Procedure (Scotland) Act 1995, s 51B(4).

[1025] It was on that basis that the European Court of Human Rights rejected a challenge under the European Convention on Human Rights, Article 6(2)  (“Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law”):  see Robinson v United Kingdom, App. No 20858/92, unreported, 5 May 1993.

[1027] Savage v HM Advocate 1923 JC 49, at p 51.

[1028] Established textbooks include ICD-11 (World Health Organisation, International Classification of Diseases (11th Revision)), and DSM-5 (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edn)).

[1029] Particularly given the circumstances of two of the leading cases involving diminished responsibility:  Galbraith v HM Advocate 2001 SCCR 551 and Graham v HM Advocate 2018 SCCR 347.  Some have suggested that there should be a separate defence for domestic abuse victims:  see ch 12, Domestic abuse.

 

[1031] Carraher v HM Advocate 1946 JC 108, referred to in Galbraith v HM Advocate 2001 SCCR 551, particularly at para [54] sixth conclusion.

[1032] J Chalmers, “Abnormality and Anglicisation:  first thoughts on Galbraith v HM Advocate (No 2) (2002) Edin LR 108 at pp 115-116.

[1033] Scot Law Com No 195 (2004) para 3.26, where Carraher is described as “a doubtful source for ascertaining the policy basis for excluding psychopathic personality disorder from the plea”.

[1034] Coroners and Justice Act 2009, s 52(1), amending the Homicide Act 1957, s 2.  See too Scot Law Com No 195 (2004) para 3.28.

[1035] The Criminal Law (Insanity) Act 2006, s 6, quoted in para 11.31 below.

[1036] See the table in: Law Commission, Partial Defences to Murder, Law Com CP No 173 (2003) at pp 157-159.

[1037] 1991 SCCR 823;  see para 11.43 below.

[1039] Ibid, at p 46 (Lord Justice General Emslie).

[1040] In Brennan, the offence charged was murder.

[1041] See Plaxton’s comment that convicting individuals who had been voluntarily intoxicated without proof of the mens rea necessary for murder represents “a particularly brutal form of constructive murder”: M Plaxton, “Foreseeing the Consequences of Purcell” 2008 SLT (News) 21 at p 23.

[1042] Ross v HM Advocate 1991 SCCR 823 at p 829.

[1043] 2019 SCCR 230 at para [33].

[1044] Reference was made to the English House of Lords decision in R v Dietschmann [2003] 1 AC 1209.  See too Scot Law Com No 195 (2004) paras 3.35-3.43.  Ultimately the appeal failed, as there had been no expert evidence led by the defence concerning the accused’s mental state.

[1045] Who, unlike a psychiatrist, has no medical qualifications.

[1046] In Graham v HM Advocate 2018 SCCR 347, the Crown led psychiatric evidence at the trial in 2008 that the effect of intoxication outweighed any effects on the accused’s state of mind from a personality disorder.  In 2017 the case was referred to the High Court on the basis of fresh evidence, consisting primarily of evidence from a chartered criminal psychologist to the effect that at the time of the offence the appellant would not have had the capacity to think rationally, having been driven by years of abuse to act on impulse in a moment of feeling overwhelmed, which could be considered an impairment of mind.

[1048] Paras [51] and [52] quoted in para 11.8 above.

[1049] Such as Victim Support Scotland, Rape Crisis Scotland, and Scottish Women’s Aid.

[1050] Final Report:  Review of the Law of Homicide (2007) ch 5 Mental Impairment Defences at pp 254-255.

[1051] The LRCWA summarise three elements of diminished responsibility common to many jurisdictions as being (read short) (1) abnormality of mind; (2) arising from a specified cause;  and (3) substantially impairing the accused’s understanding or capacity to control the act.

[1052] The LRCWA ultimately decided not to recommend a partial defence of diminished responsibility (see para 11.36 below) but it is crucial to note that there is no mandatory life sentence for the crime of murder in Western Australia.

[1053] In Scottish courts, this is known as “setting up” the witness, and is carried out by lodging the witness’s curriculum vitae, and leading evidence from the witness about his or her qualifications, experience, publications, and particular expertise.

[1054] The question whether medical qualifications may be necessary in the context of diminished responsibility is a live issue:  see the observations of Lord Justice General Carloway in Graham v HM Advocate 2018 SCCR 347, quoted in paras 11.20 and 11.21 below.  For example, should psychiatric (medically-qualified) opinion that the accused did not suffer from a mental abnormality be capable of being contradicted and discounted by the evidence of a (non-medically-qualified) psychologist?

[1056] Ibid, para [44].

[1058] 2016 SC (UKSC) 592016 SLT 209; 2016 SCLR 203, a case concerning the need to establish the qualifications and experience of a witness in a particular field before permitting that witness to give evidence as an expert in that field: see para 11.19 above.

[1059] Sentencing Act 2002, s 165, replacing the Crimes Act 1961, s 172. 

[1060] R Chhana, P Spier, S Roberts and C Hurd, “The Sentencing Act 2002:  Monitoring the First Year” (2004) pp 13-14 available at: https://www.justice.govt.nz/assets/Documents/Publications/sentencing-act-year-1.pdf.

[1061] New Zealand Law Commission, Understanding Family Violence;  Reforming the Criminal Law Relating to Homicide (NZLC R139, 2016).

[1062] G Kemp, “South Africa” in A Reed and M Bohlander (eds), Homicide in Criminal Law:  A Research Companion (2019) 196.

[1063] Criminal Procedure Act 1977, s 79;  cf Graham v HM Advocate 2018 SCCR 347 at para [121] (Lord Justice General Carloway).

[1064] As amended by the Coroners and Justice Act 2009, s 52(1).

[1065] Cf Galbraith v HM Advocate 2001 SCCR 551, at para [51], cited in para 11.8 above;  and see too the example given in: Law Commission, Murder, Manslaughter and Infanticide, Law Com No 304 (2006) para 5.121, namely, a 10-year-old boy, having played very violent video games, killed the victim believing that he would be able to revive the victim as had happened in the games that he had been playing continually.

[1066] Which it will do only “if it causes, or is a significant contributing factor in causing [the defendant] to carry out that conduct”:  s 52(1B).  See R Fortson QC, “Diminished Responsibility: A Limited Partial Defence to Murder” in A Reed and M Bohlander (eds), Homicide in Criminal Law:  A Research Companion (2019) 102 at pp 113-115.

[1067] R v Bunch [2013] EWCA Crim 2498, applying Byrne [1960] 2 QB 396 and Dix [1982] 74 Cr App R 306;  R v Golds [2016] 1 WLR 5231, [2017] 1 Cr App R 18Graham v HM Advocate 2018 SCCR 347 at paras [118] to [119] (Lord Justice General Carloway).  Thus courts in England expect to hear evidence from doctors and psychiatrists.

[1068] R Fortson QC, “Diminished Responsibility: A Limited Partial Defence to Murder” in A Reed and M Bohlander (eds), Homicide in Criminal Law:  A Research Companion (2019) at pp 109 to 110.

[1069] R v Joyce and Kay [2017] EWCA Crim 647 at para [16] (Hallett LJ) concerning a psychotic state (schizophrenia) triggered by voluntary intoxication.

[1070] R Fortson QC, “Diminished Responsibility: A Limited Partial Defence to Murder” in A Reed and M Bohlander (eds), Homicide in Criminal Law:  A Research Companion (2019) 102 at p 110, citing Coroners and Justice Bill Deb 3 March 2009 col 413.

[1071] R Fortson QC, “Diminished Responsibility: A Limited Partial Defence to Murder” in A Reed and M Bohlander (eds), Homicide in Criminal Law:  A Research Companion (2019) 102 at p 115.

[1072] If there is undisputed expert evidence pointing to diminished responsibility, the Supreme Court has emphasised that the Crown must offer the jury a reason or reasons why that expert evidence should not be accepted:  R v Golds [2016] 1 WLR 5231, [2017] 1 Cr App R 18.

[1073] See too DPP v Hefferman [2017] IESC 5, referred to in Graham v HM Advocate 2018 SCCR 347 at para [120].

[1074] V Bergelson, “United States of America” in A Reed and M Bohlander (eds), Homicide in Criminal Law:  A Research Companion (2019) 216 at p 236.

[1075] S 210.3.

[1076] 2018 SCCR 347 at para [122] (Lord Justice General Carloway).

[1077] Ibid para [122].

[1078] “Underlying condition” means a pre-existing mental or physiological condition other than of a transitory kind:  section 159(6).

[1079] Graham v HM Advocate 2018 SCCR 347 at para [122] (Lord Justice General Carloway).

[1080] Para 5.38 of that Report.

[1081] In ch 5 Diminished responsibility at p 259.

[1082] Established texts include ICD-11 (World Health Organisation, International Classification of Diseases (11th Revision)), and DSM-5 (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edn)).

[1083] 2016 SC (UKSC) 592016 SLT 209; 2016 SCLR 203. For a summary of the guidance in this case, see para 11.19 above.

[1084] For questions see 2018 SCCR 347, at para [114], quoted at paras 11.20 and 11.21 above.

[1085] See our statement in the Report on Insanity and Diminished Responsibility at para 3.18 that: “In many situations there will be an overlap between the defence based on mental disorder and the plea of diminished responsibility. Many, if not all, cases of the defence will fall within the test for diminished responsibility”.

[1086] See ch 6, Defences - an introduction, para 6.4 and following paragraphs.

[1087] Eg a compulsion order, which authorises that a person be detained in hospital.

[1088] Inserted by the Criminal Justice and Licensing (Scotland) Act 2010, s 168, following the recommendations in our Report on Insanity and Diminished Responsibility, Scot Law Com No 195 (2004).  The former common law defence of insanity was abolished.

[1089] “Mental disorder” in s 51A has the meaning set out in the Mental Health (Care and Treatment) (Scotland) Act 2003, s 328, and covers mental illness, personality disorder, and learning disability; but s 328 specifically provides that a person is not mentally disordered by reason only of, among other things, use of alcohol or drugs; behaviour that causes harassment, alarm or distress to any other person; and acting as no prudent person would act.

[1090] A “special defence” is a procedural requirement:  Criminal Procedure (Scotland) Act 1995, s 78(1).  The accused must give both the court and the prosecution advance written notice of the intention to plead the defence.

[1091] The common law defence of insanity was available to an accused who, as a result of mental illness, mental disease or defect or unsoundness of mind, suffered a total alienation of reason.  That appeared to include neurological or other medical conditions affecting the functioning of the brain, such as parasomnia (where someone acts in his sleep as a result of a neurological disorder:  Simon Fraser (1878) 4 Coup 70), whereas such conditions do not qualify as “mental disorder”. 

[1092] Discussion Paper on Insanity and Diminished Responsibility, Scot Law Com DP No 122 (2003) paras 1.13-1.14.  For criticism of this exclusion see J Chalmers, “Insanity and automatism: notes from over the border and across the boundary” (2014) NILQ 205 at p 208;  E Shaw, “Automatism and mental disorder in Scots criminal law” (2015) Edin LR 210 at p 211.

[1094] Ibid,  at p 837.

[1095] For a detailed examination of how these defences interact with one another, see E Shaw, “Automatism and mental disorder in Scots criminal law”, (2015) Edin LR 210.

[1096] Such as hypoglycaemia, or epilepsy, or a predisposition to blackouts.

[1097] Unreported, 1979.

[1098] Galbraith v HM Advocate 2001 SCCR 551.

[1099] Graham v HM Advocate 2018 SCCR 347.

[1100] 37% of female victims in 2019-20 were killed by a partner or ex-partner. See Homicide in Scotland 2019-20 (Scottish Government, 2020) p 2, available at:https://www.gov.scot/publications/homicide-scotland-2019-2020/.

[1101] 43% of male victims in 2019-20 were killed by an acquaintance.  See Homicide in Scotland 2019-20 (Scottish Government, 2020) p 2.

[1102] R McPherson, “Legal change and legal inertia: understanding and contextualising Scottish cases in which women kill their abusers” (2021) JGBV.

[1103] E Forbes, “The Domestic Abuse (Scotland) Act 2018: The Whole Story?” (2018) Edin LR 406 at p 408.

[1104] C Connelly, “Domestic Abuse” (2008) SCL 642.

[1105] 82% in 2018-19:  Domestic Abuse: Statistics 2018-19 (Scottish Government, 2019) p 3.  Available at:  https://www.gov.scot/publications/domestic-abuse-scotland-2018-2019-statistics/.

[1106] 16% involved a female accused and a male victim; 2% involved an accused and victim who were the same gender:  ibid.

[1107] See B Dempsey, “Gender Neutral Laws and Heterocentric Policies: ‘Domestic Abuse as Gender-based Abuse’ and Same-sex Couples” (2011) 15(3) Edin LR 381; A Waugh, “Male Victims of Domestic Abuse” (2010) SCOLAG 213.

[1108] For example, see the Children (Scotland) Act 1995, s 11(7A)-(7E), placing a duty on the court to consider the need to protect a child from abuse when making an order in respect of parental rights and responsibilities; see also the Children’s Hearings (Scotland) Act 2011, s 67(2)(f), restating rules relating to children’s hearings and providing as a ground of referral where “the child has, or is likely to have, a close connection with a person who has carried out domestic abuse”.  See RW Whitecross, “Section 11 orders and the ‘abuse’ provisions: family lawyers' experience and understanding of section 11(7A)-(7E)” (2017) 21(2) Edin LR 269. 

[1109] Matrimonial Homes (Family Protection) (Scotland) Act 1981, ss 1 and 18.

[1110] Matrimonial Homes (Family Protection) (Scotland) Act 1981, s 4.

[1111] Civil Partnership Act 2004, s 104.

[1112] Protection from Abuse (Scotland) Act 2001, s 1.

[1113] Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011, ss 1 and 15.

[1114] Domestic Abuse (Scotland) Act 2011, s 2(2).

[1115] Ibid s 2(3).

[1116] An aggravation is a circumstance in a criminal case which adds to the seriousness of the case, eg the existence of a previous conviction, or the circumstances or purpose of an assault.

[1117] 1989 SCCR 248.

[1118] Hume, i, 305-306 ; Burnett, 102; Alison, 215.

[1119] S v HM Advocate 1989 SCCR 248 at p 254.

[1120] Abusive Behaviour and Sexual Harm (Scotland) Act 2016, s 1(1).

[1121] Ibid s 1(2).

[1122] Ibid s 1(5)(a).

[1123] Ibid s 1(5)(b).

[1124] Ibid s 1(5)(c).

[1125] Ibid s 1(5)(d)(i).

[1126] Ibid s 1(5)(d)(ii).

[1127] C McGlynn, E Rackley and R Houghton, “Beyond ‘Revenge Porn’: The Continuum of Image-based Sexual Abuse” (2017) Fem LS 25.

[1128] Criminal Justice and Courts Act 2015, s 33.

[1129] S Pegg, “A Matter of Privacy or Abuse? Revenge Porn in the Law” (2018) 7 Crim LR 512 at p 523.

[1130] Ibid at p 518.

[1131] The equivalent provision in England is the Serious Crimes Act 2015, s 76.

[1132] Domestic Abuse (Scotland) Act 2018 s 1(1)(a).

[1133] Ibid s 11(2)(a).

[1134] Ibid s 11(2)(b).

[1135] Ibid s 11(2)(c).

[1136] Ibid s 11(3).

[1137] Domestic Abuse (Scotland) Act 2011, s 3(2).

[1138] Abusive Behaviour and Sexual Harm (Scotland) Act 2016, s 1(6).

[1139] S 2(3)(a)-(e).

[1140] Cf studies such as MA Pico-Alfonso et al, “The Impact of Physical, Psychological, and Sexual Intimate Male Partner Violence on Women’s Mental Health:  Depressive Symptoms, Posttraumatic Stress Disorder, State Anxiety, and Suicide” (2006) 15(5) J Women’s Health 599, where findings indicated that “psychological intimate male partner violence [IPV] is as detrimental as physical [IPV]”.

[1141] Which in some cases may be subtle and insidious, undermining the individual’s autonomy and ability to act as a normal adult.

[1142] Justice Secretary Michael Matheson, quoted in “New Domestic Abuse Law ‘Could Change Scotland’”, BBC News (1 February 2018) available at:  https://www.bbc.com/news/uk-scotland-42890990.

[1143] Serious Crime Act 2015, s 76.

[1145] A previous plea of diminished responsibility had been unsuccessful: R v Challen [2012] 2 Cr App R (S) 20.  For a commentary on the decision, see C Davies, “Sally Challen Wins Appeal Against Conviction for Murdering Husband”, The Guardian (28 February 2019).  Available at: https://www.theguardian.com/law/2019/feb/28/sally-challen-wins-appeal-against-conviction-for-murdering-husband.

[1146] See para 12.79 and following paragraphs below.

[1147] Home Office, “Domestic Abuse Bill 2020: Overarching Factsheet” (3 March 2020).  Available at: https://www.gov.uk/government/publications/domestic-abuse-bill-2020-factsheets/domestic-abuse-bill-2020-overarching-factsheet.

[1148] See, for example, J Casey, “Diminished Responsibility and Battered Women Who Kill” 2001 SLT (News) 311;  J Casey, “Legal Defences and Expert Testimony on the Battered Woman Syndrome:  A Focus on Self Defence” 2003 SLT (News) 247;  J Casey, “Gillon v HM Advocate: Provocation, Proportionality and the Ordinary Person” 2006 SLT (News) 193;  E Kenny, “Battered Women Who Kill: The Fight Against Patriarchy” (2007) UCL Juris Rev 13, at pp 17-36;  S Edwards “Coercion and Compulsion - Re-imagining Crimes and Defences” (2016) 12 Crim LR, 876-899; R McPherson, “Battered Woman Syndrome, Diminished Responsibility and Women Who Kill: Insights from Scottish Case Law” (2019) 83(5) J Crim Law 381-393; and an address by Lady Scott (High Court judge) followed by a dialogue with Professor Sharon Cowan (University of Edinburgh Law School) at the UKAWJ seminar “Women who kill”, Court of Session, Edinburgh, 28 November 2019.  The address is referred to in this chapter as: Lady Scott, “Women who kill” (2019).  A printed version of the address is available from the Supreme Courts Library, Court of Session, Edinburgh.

[1149] Identified by many as a patriarchy with concepts of possession of a wife and insults to a man’s honour.

[1150] Lady Scott, “Women who kill” (2019) p 19.

[1151] Often well-founded.

[1152] Lady Scott, “Women who kill” (2019) p 19.

[1153] Ibid.

[1154] Where, for example, the woman perceives it coming by the signs from her experience of previous abuse. 

[1155] Reducing what would otherwise be murder to culpable homicide.

[1156] But see views to the contrary expressed in relation to legislation in Queensland, Australia, referred to in fn 103 below, where commentators argue for a complete defence leading to acquittal.

[1157] See para 12.18. The Act lists examples of abusive behaviour, including (i) isolating the victim from friends, family and other sources of support; (ii) controlling and regulating the victim’s day-to-day activities; (iii) depriving the victim of freedom of action; and (iv) frightening, humiliating and degrading the victim.

[1158] See ch 10, Provocation.

[1159] I Cairns, “Feminising Provocation in Scotland: The Expansion Dilemma”, (2014) 4 Jur Rev 237 at p 260. See also ch 10, Provocation, at para 10.7 and following paragraphs.

[1160] Gillon v HM Advocate 2006 SCCR 561.

[1161] Drury v HM Advocate 2001 SCCR 583.

[1162] I Cairns, “Feminising Provocation in Scotland: The Expansion Dilemma”, (2014) 4 Jur Rev 237 at p 243.

[1163] Hume, i, 233.

[1164] Lady Scott, “Women Who Kill” (2019); SSM Edwards, “Loss of self-control:  The cultural lag of sexual infidelity and the transformative promise of the fear defence” in A Reed and M Bohlander (eds), Homicide in Criminal Law:  A Research Companion (2019) at p 82.

[1165] C McDiarmid, "Don’t Look Back in Anger: The Partial Defence of Provocation in Scots Criminal Law" in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010) at p 212.

[1166] I Cairns, “Feminising Provocation in Scotland: The Expansion Dilemma”, (2014) Jur Rev 237 at pp 242-243.

[1167] See paras 10.43 and following paragraphs.

[1168] Coroners and Justice Act 2009, ss 54-56, and particularly s 55(6)(c), implementing the recommendations made by the Law Commission in Murder, Manslaughter and Infanticide, Law Com No 304 (2006).

[1169] See, for example, R v Clinton [2013] QB 1, [2013] 3 WLR 515, and the discussion in ch 10, Provocation, paras 10.20 and 10.44 and following paragraphs.

[1170] Similar to the development of English homicide law.

[1171] C Connelly, “Women Who Kill Violent Men” (Sir Gerald Gordon Seminar on Criminal Law, University of Glasgow, 2011) cited by R McPherson, “Battered Woman Syndrome, Diminished Responsibility and Women Who Kill: Insights from Scottish Case Law” (2019) J Crim Law 381 at p 389.

[1172] As set out in the Criminal Procedure (Scotland) Act 1995, s 51B.

[1173] See discussion at para 11.6 and 11.16 and following paras.

[1174] Homicide Act 1957, s 2(1)(a), as amended by the Coroners and Justice Act 2009, s 52(1). R McPherson, “Battered Woman Syndrome, Diminished Responsibility and Women Who Kill: Insights from Scottish Case Law” (2019) J Crim Law 381.

[1176] J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (2006) para 11.15.

[1177] Galbraith v HM Advocate 2001 SCCR 551 at paras [53] and [54] (Lord Justice General Rodger).

[1179] Representatives from Victim Support Scotland and Scottish Women’s Aid, and some defence QCs, were involved in our informal consultations.

[1180] Galbraith v HM Advocate 2001 SCCR 551 at para [54].

[1181] PR Ferguson and C McDiarmid, Scots Criminal Law: A Critical Analysis (2nd edn, 2014) para 20.11.7.

[1182] LE Walker, The Battered Woman (1979) at p 49.

[1183] Cf studies such as MA Pico-Alfonso et al, “The Impact of Physical, Psychological, and Sexual Intimate Male Partner Violence on Women’s Mental Health:  Depressive Symptoms, Posttraumatic Stress Disorder, State Anxiety, and Suicide” (2006) 15(5) J Women’s Health, 599, where findings indicated that “psychological intimate male partner violence [IPV] is as detrimental as physical [IPV]”.

[1184] Lady Scott, “Women who kill”  (2019).

[1185] R McPherson, “Battered Woman Syndrome, Diminished Responsibility and Women Who Kill: Insights from Scottish Case Law” (2019) J Crim Law 381 at p 386.

[1186] Criminal Procedure (Scotland) Act 1995, s 51B(4).

[1187] Lady Scott, “Women Who Kill” (2019) at p 20.

[1188] See para 12.79 and para 12.81 and following paragraphs.

[1189] Linklaters LLP for Penal Reform International, “Women who kill in response to domestic violence:  How do criminal justice systems respond?” (2016) available at https://www.penalreform.org/resource/women-who-kill-in-response-to-domestic-violence/.  Jurisdictions studied were Australia, Brazil, Hong Kong, India, Japan, Mexico, Poland, Spain, and the United States.

[1190] What follows is a paraphrase of the summary.

[1191] Reference should be made to the study itself for more detail.

[1192] Para 12.70 below.

[1193] Inserted by the Criminal Code (Abusive Domestic Relationship Defence and Another Matter) Amendment Act 2010, s 3.

[1194] An abusive domestic relationship is defined in s 304B(2) as “a domestic relationship existing between 2 persons in which there is a history of acts of serious domestic violence committed by either person against the other.” 

[1195] For “domestic violence”, s 304(7) refers to the Domestic and Family Violence Protection Act 2012, s 8.  A history of acts of serious domestic violence may include acts that appear minor or trivial when considered in isolation (s 304B(3)).

[1196] See K Fitz-Gibbon, Homicide Law Reform, Gender and the Provocation Defence:  A Comparative Perspective, 2014;  Boe, “Domestic violence in the courts:  re-victimising or protecting the victims?” (Paper presented at the National Access to Justice and Pro Bono Conference, Brisbane, 27-28 August 2010);  M Edgely and E Marchetti, “Women who kill their abusers:  How Queensland’s new abusive domestic relationships defence continues to ignore reality” (2011) 13 FLJ 125;  P Easteal and A Hopkins, “Walking in Her Shoes:  Battered Women Who Kill in Victoria, Western Australia and Queensland” (2010) 35(3) Alt LJ 132;  E Sheehy, J Stubbs and J Tolmie, “Defences to Homicide for Battered Women:  A Comparative Analysis of Laws in Australia, Canada and New Zealand, (2012) 34 Sydney LR 467.

[1197] A defence frequently run in tandem with a s 304B defence.

[1198] Contrast with the Scots law defence of self-defence, which still requires a lack of escape and a proportionate response: see para 7.5.

[1199] See for example M Edgely and E Marchetti, “Women who kill their abusers:  How Queensland’s new abuse domestic relationships defence continues to ignore reality” (2011) 13 FLJ 125 at pp 129, 140-141:  “We argue that in cases involving a history of extreme abuse, a woman who intentionally kills her abuser because she fears for her life has a reasonably-grounded belief that there is no other way to protect herself is morally justified in doing so, even if the killing was during a non-confrontational moment … she should be entitled to acquittal … On the face of the law … it seems that the opportunity to strive for an acquittal as opposed to facing a manslaughter conviction is predicated on that triggering assault …”.  See too A Hopkins and P Easteal, “Walking in her shoes:  battered women who kill in Victoria, Western Australia and Queensland” (2010) 35(3) Alt LJ 132:  “ … [section 304B] will do nothing to increase the prospect of acquittal for battered women, [although increasing the prospect of convictions for manslaughter rather than murder] and may even jeopardise their claims of justified self-defence.”

[1200] A partial defence, which if successful would result in a conviction for manslaughter, in contrast with the complete defence of self-defence, which if successful results in acquittal.

[1201] Criminal Code Act Compilation Act 1913, as amended by the Family Violence Legislation Reform Act 2020.

[1202] As amended by the Family Violence Legislation Reform Act 2020.

[1203] Defined as including “a person who can demonstrate specialised knowledge, gained by training, study or experience, of any matter that may constitute evidence of family violence”:  s 39(4).

[1204] S 39C.

[1205] S 39F(1)(a):  examples are outlined in s 39F(2) such as placing a person in a dependent relationship;  isolating a person;  controlling day-to-day activities;  restricting freedom of movement or action;  and humiliating a person.

[1206] S 39F(1)(b).

[1207] Including race, poverty, gender, disability or age.

[1208] “Defensive homicide law to be dumped in Victoria after violent men 'allowed to get away with murder'” ABC News (22 June 2014) available at: https://www.abc.net.au/news/2014-06-22/vic-dumps-law-that-allowed-men-to-27get-away-with-murder27/5541670.

[1209] Defensive Homicide:  Proposals for Legislative Reform (Consultation Paper, September 2013) xi, 35 [2.9.2] (Proposal 1).

[1210] In this context, s 15D(2) permits evidence of domestic abuse, including the history of the relationship; the cumulative effect (including psychological effect); social, cultural or economic factors impacting on the person;  the general nature and dynamics of relationships, including consequences of separation;  the psychological effect of abuse;  and social and economic factors impacting on people in relationships affected by domestic abuse.

[1211] Understood to mean “make live”.

[1212] It seems that the bill was abandoned on the basis of inadequate consultation and what was perceived to be poor drafting.

[1213] “Labor looks to outlaw coercive behaviour”, Newcastle Herald (2 December 2020).

[1214] Described as overwhelmingly perpetrated against women by a current or former intimate partner with the effect of removing their sense of self-worth, and often preceding other forms of domestic abuse.  The article notes that “similar legislation has been introduced in Ireland, Scotland and the UK while Tasmania has included some offences in its criminal code.  Queensland, Victoria and NSW [are] also introducing or considering bills.”

[1215] New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants (Wellington:  NZLC R73, 2001) at pp 9-12.

[1216] EA Sheehy, J Stubbs and JR Tolmie, “Defences to homicide for battered women:  a comparative analysis of laws in Australia, Canada and New Zealand” (2012) 34 Sydney LR 467.

[1217] Ibid p 477.

[1218] Ibid at pp 480-481, the authors refer R v Falls (unreported, 2010) where a jury brought back a verdict of acquittal of a wife had drugged her abusive husband (who had said that he was going to execute the parties’ child on a particular day) and then shot him twice in the head while he was unconscious.

[1219] Cf Queensland, where s 304B was inserted in 2010 into the Criminal Code Act 1899.

[1220] See para 12.23 above and following paragraphs.

[1221] A partial defence is suggested because of the gravity of any homicide:  but see the different views expressed in Queensland, Australia, fn 103 above.

[1222] Including Victim Support Scotland and Scottish Women’s Aid.

[1223] In contrast with the contention in M Edgely and E Marchetti, “Women who kill their abusers:  How Queensland’s new abuse domestic relationships defence continues to ignore reality” (2011) 13 FLJ 125 at pp 129, 140-141, where the authors argue strongly for a complete defence resulting in acquittal:  see fn 103 above.

[1224] G Maher, “‘The Most Heinous of All Crimes’: Reflections on the Structure of Homicide in Scots Law” in J Chalmers, F Leverick and L Farmer (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010).

[1225] See paras 12.65 and 12.66 above.

[1226] Inserted by the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, s 6.

[1227] Donegan v HM Advocate 2019 SCCR 106 at para [56].

[1228] K Summan, “New research finds jurors do not subscribe to rape myths and casts doubt on mock jury studies” Scottish Legal News (1 December 2020) available at: https://www.scottishlegal.com/article/new-research-finds-jurors-do-not-subscribe-to-rape-myths-and-casts-doubt-on-mock-jury-studies.

[1229] A view challenged in: J Chalmers, F Leverick and V Munro, “The Dorrian Review and Juries in Rape Cases: Myths about Myths?” available at: https://www.uofgschooloflaw.com/blog/2021/3/18/the-dorrian-review-and-juries-in-rape-cases-myths-about-myths. See also R Ormston, J Chalmers, F Leverick, V Munro and L Murray, Scottish jury research: findings from a large-scale mock jury study (Scottish Government 2019).

[1230] Ibid.

[1232] Which can be made by senior members of the police, before any application is made to a court.

[1233] See material entitled “Why the Bill was created” at the webpage for the bill (which later became the Act), which can be accessed at: https://beta.parliament.scot/bills/domestic-abuse-protection-scotland-bill.

[1235] Policy Memorandum, para 9.

[1236] Ibid para 11.

[1237] Including the Netherlands, Austria, England and Wales, and Bulgaria.

[1238] Policy Memorandum, para 70 and following paragraphs.

[1239] Ibid para 80 and following paragraphs.

[1241] See para 12.81 and following paragraphs. 

[1242] A different approach from that adopted by the Scottish Government, which aims to have the alleged abuser removed from the house:  see para 12.78 above.

[1243] See para 12.79 above. These provisions would not apply in Scotland.

[1244] A “rough sex defence” is not a recognised criminal defence.  It is a “failure of proof” defence:  see ch 6, Defences:  an introduction, para 6.3 fn 3.  The accused offers an alternative version of events which does not involve the mens rea for murder.  See generally H Bows and J Herring, “Getting Away With Murder? A Review of the ‘Rough Sex Defence’”, (2020) J Criminal Law 1.

[1245] In the media (Joan Smith, “The Rough Sex Defence is Indefensible” The Guardian (22 November 2019)) from MPs (in particular, Labour MPs Harriet Harman and Jess Phillips, and Conservative MPs Mark Garnier and Laura Farris) and from support organisations (We Can’t Consent To This).

[1246] “Grace Millane murder: Man guilty of killing backpacker in New Zealand” BBC News (22 November 2019), available at:  https://www.bbc.co.uk/news/uk-england-essex-50512163.

[1247] “Domestic Abuse Bill: MPs Back Ban on 'Chilling Rough Sex Defence'”, BBC News (6 July 2020).  Available at:  https://www.bbc.co.uk/news/uk-53311652; We Can’t Consent To This, “What Can be Consented to? Briefing on the Use of ‘Rough Sex’ Defences to Violence” (2019), available at:  https://wecantconsenttothis.uk/.

[1248] As noted, the Domestic Abuse Act 2021 applies only to England and Wales.

[1249] See HL Bill 124 Explanatory Notes,  paras 287, 289 which can be accessed at: https://publications.parliament.uk/pa/bills/lbill/58-01/124/5801124en.pdf

[1250] [1993] 2 WLR 556.  In Scotland, it was held in HM Advocate v Rutherford 1947 JC 1 that consent cannot be a defence to murder.

[1251] The phrase used in question 5 of the issues for consideration in our informal consultations.

[1252] HM Advocate v Hartley 1989 SLT 135 at 136.

[1253] HM Advocate v Byfield, quoted by Lord Goff in (1988) 104 LQR 30 at p 54.

[1254] Cawthorne v HM Advocate 1968 JC 32.

[1255] A formulation suggested by a member of our Advisory Group.

[1256] Again, a formulation suggested by a member of our Advisory Group.

[1257] The submission made by the Crown in HM Advocate v Purcell 2007 SCCR 520.

[1258] Established texts include ICD-11 (World Health Organisation, International Classification of Diseases (11th Revision)), and DSM-5 (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edn)).

[1259] 2016 SC (UKSC) 592016 SLT 209; 2016 SCLR 203. For a summary of the guidance in this case, see para 11.17 above.

[1260] For questions see 2018 SCCR 347, at para [114], quoted at paras 11.20 and 11.21 above.

[1261] See s.32.

[1262] This was introduced by s.33 of the Crime and Disorder Act 1998 and inserted into the Criminal Law (Consolidation) (Scotland) Act 1995 as s.50A.

[1263] Hamesucken is constituted by invading a person’s home and assaulting him or her there.

[1264] This is constituted by assaulting or resisting a messenger-at-arms or other officer of the law in the exercise of his or her duties.

[1265] See the Criminal Procedure (Scotland) Act 1995, sch. 3 paras. 7 and 9(3).

[1266] See s.113 and sch. 3 of this Act.

[1267] See below, s.81 (Criminal damage to property).

[1268] That is, without fault on anyone’s part.

[1269] That is, by failure to exercise reasonable care.

[1270] Sweet v Parsley [1970] AC 132; Warner v MPC [1969] 2 AC 256; [1968] 2 WLR 1303; [1968] 2 All ER 356; Gammon v A-G of Hong Kong [1985] AC 1; [1984] 3 WLR 437; [1984] 2 All ER 503; B (a minor) v DPP [2000] 2 AC 428; [2000] 2 WLR 452; [2000] 1 All ER 833.

[1271] Mitchell v Morrison 1938 JC 64; 1938 SLT 201; Duguid v Fraser 1942 JC 1.

[1272] See s.4, above.

[1273] Salabiaku v France (1991) 13 EHRR 379, para. 27.

[1274] Salabiaku v France (1991) 13 EHRR 379, para. 28.

[1275] See s.73 (Knowledge of age not required).

[1276] S.61.

[1277] See, for example, the difficulties encountered by the English Courts in R v Hancock and Shankland [1986] AC 455; R v Moloney [1985] AC 905; [1985] 2 WLR 648; [1985] 1 All ER 1025; and R v Nedrick [1986] 3 All ER. 63 1981 JC 98; 1981 SCCR 312; 1982 SLT 220.

[1279] [1950] 2 KB 237.

[1280] Cf the views of the House of Lords in the English case of R v Hancock and Shankland [1986] AC 455; [1986] 2 WLR 357 and those of the Court of Appeal in Nedrick [1986] 3 All ER 1.

[1282] See Hume, 1, 22-23.

[1283] See Roberts v Hamilton 1989 JC 91; 1989 SCCR 240; 1989 SLT 399 and Connor v Jessop 1988 SCCR 624.

[1285] See the Commentary to s.5(5).

[1286] Cf David Smith and William McNeil (1842) 1 Broun 240; Normand v Robinson 1994 SLT 558; 1993 SCR 1119 and Cameron v Maguire 1999 JC 63; 1999 SLT 883; 1999 SCCR 44.

[1287] Cf RHW v H.M. Advocate 1982 SLT 420; 1982 SCCR 152.

[1288] For examples of the common law approach see Cameron v Maguire, above; Carr v H.M. Advocate 1994 JC 213; 1994 SCCR 521; H.M. Advocate v Harris 1993 JC 150; 1993 SLT 963; Kimmins v Normand 1993 SLT 1260; 1993 SCCR 476, Normand v Robinson, above.

[1289] There is an example of this in s.51 (Child abuse) of this Act.

[1290] S.2(2) of this Act makes it clear that another statute could provide its own definition of recklessness for its purposes if that were thought desirable. It is to be hoped, however, that future statutes will use the default concept in s.10. This would lead to more coherence in the law.

[1291] Allan v Patterson 1980 JC 57; 1980 SLT 77.

[1292] That is, receiving or retaining possession of goods which have been stolen by someone else- see s.89.

[1293] (1967) SCCR Supp. 18.

[1294] Brennan v H.M. Advocate 1977 JC 38.

[1295] Ross v H. M. Advocate 1991 JC 210; 1991 SCCR 823; 1991 SLT 564; Cardle v Mulrainey 1992 SCCR 658; 1992 SLT 1152; Sorley v H.M. Advocate 1992 JC 102; 1992 SCCR 396; 1992 SLT 867; and Ebsworth v H.M. Advocate 1992 SCCR 671; 1992 SLT 1161.

[1296] Here and elsewhere in the Act “registered medical practitioner” means a fully registered person within the meaning of the Medical Act 1983. See the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (SI 1999 No 1379) sch. 2.

[1297] This is defined in s 81.

[1298] See Fenning v H.M. Advocate 1985 JC 76; 1985 SCCR 219; 1985 SLT 540.

[1299] McCluskey v H.M. Advocate 1959 JC 39, followed in Elliot v H.M. Advocate 1987 JC 47; 1987 SCCR 278.

[1301] See s.17(7)(c).

[1302] See s.19(3)(b).

[1303] See s.20(3)(b).

[1304] See s.23(3)(b).

[1307] (1878) 4 Couper 70.

[1308] See Finegan v Heywood 2000 JC 444; 2000 SCCR 234; 2000 SLT 905. Cf the treatment of somnambulism by the Supreme Court of Canada in R v Parkes [1992] 2 SCR 871. See also s.12 on the question of a culpably self-induced state of mind.

[1310] See s.112(d) and the commentary on that provision.

[1311] See the Scottish Law Commission’s Discussion Paper on Insanity and Diminished Responsibility, Scot Law Com DP No 122 (2003) Part 5.

[1312] Hume, i, 37; Brennan v H.M. Advocate 1977 JC 38; 1977 SLT 151.

[1313] Brennan v H.M. Advocate 1977 JC 38; 1977 SLT 151.

[1314] See Chalmers, “Reforming the Pleas of Insanity and Diminished Responsibility: Some Aspects of the Scottish Law Commission’s Discussion Paper” (2003) 8 Scottish Law and Practice Quarterly, 79.

[1316] See now s.81 (Criminal damage to property) of this Act.

[1317] (1889) 2 White 385.

[1318] See Thomson v H.M. Advocate 1983 JC 69; 1983 SCCR 368.

[1319] See the cases of R v Fitzpatrick [1977] NI 20 and R v Sharp [1987] 1 QB 853.

[1321] 1993 SLT 101; 1991 SCCR 898.

[1323] Gotts [1992] 2 AC 412.

[1324] This may be contrasted with the provisions of some United States codes which define murder by reference to other criteria, such as the characteristics of the victim or the surrounding circumstances of the killing. See, for example Code of Alabama, s.13A-6-2 (a) (3) (killing while committing first degree arson, burglary, kidnapping, rape or robbery); Indiana Code, 35-42-1-1, s.1(3) (killing while dealing in certain types of drugs).

[1325] If, however, a child born alive dies as a result of ante-natal injuries inflicted upon it, or upon the mother, this could be murder. Cf McCluskey v H.M. Advocate 1989 SLT 175.

[1326] “Self-murder” may at one time have been regarded as a crime: Mackenzie, I, title XIII.

[1327] Re A (Children) (conjoined twins: surgical separation) [2000] 2 WLR 480.

[1328] At p. 89.

[1332] On this question, see Gane and Stoddart, pp. 402-403.

[1333] Bird v H.M. Advocate 1952 JC 23; Burns v H.M. Advocate 1998 SCCR 281.

[1334] Mathieson v H.M. Advocate 1981 SCCR 196; Sutherland v H.M. Advocate 1994 JC 62; 1994 SCCR 80; 1994 SLT 634.

[1335] Paton v H.M. Advocate 1935 JC 19. Cf Angus McPherson and John Stewart (1861) 4 Irvine 85.

[1336] See s.10.

[1337] See generally, Thomson v H.M. Advocate 1985 SCCR 448; Cosgrove v H.M. Advocate 1990 JC 333; 1990 SCCR 358; 1991 SLT 25; Drury v H.M. Advocate 2001 SCCR 583; 2001 SLT 1013.

[1338] See, generally, Drury v H.M. Advocate 2001 SCCR 583; 2001 SLT 1013; H.M. Advocate v Gilmour 1938 JC 1; H.M. Advocate v Hill 1941 JC 59; McDermott v H.M. Advocate 1973 JC 8; 1974 SLT 206; H.M. Advocate v McKean 1996 JC 32; 1996 SLT 1983; 1996 SCCR 402.

[1339] Cf the Homicide Act 1957, s.3, in respect of English law.

[1341] See Smith (Morgan) [2000] 3 WLR 654.

[1342] (1867) 5 Irvine 466.

[1345] See sch. 2.

[1346] Discussion Paper No 122 on Insanity and Diminished Responsibility (2003).