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HOMICIDE and PARTIAL DEFENCES There are two central homicide offences in Scots criminal law: murder and culpable homicide. These lectures will focus on the elements of the offence of murder, and two defences to murder which reduce the charge to culpable homicide: diminished responsibility and provocation. We will also look at the offence of culpable homicide itself, before briefly considering road traffic and corporate homicide offences. Reading: Gane, Stoddart and Chalmers (4th^ edn), ch 10 OR Jones and Christie (5th^ edn), pp 210-235 OR Ferguson and McDiarmid, ch. 9, pp 520-537 and pp 481-
1. The Actus Reus of Homicide Homicide offences share a common actus reus element. In Macdonald's classic definition (below), this is 'the destruction of life'. This simply means 'causing death' in modern parlance. Hence, liability for homicide sometimes turns on whether an accused may be said to have caused death. On this issue, see the earlier lectures on causation. 2. Murder "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 the consequences." (Macdonald, Criminal Law of Scotland , 5 th^ edn (1948), p 89.) Murder, then, can be distinguished from other kinds of homicide by its mens rea. Two kinds of mens rea are sufficient for murder: intention to kill and wicked recklessness. A. Intention to kill A simple intention to kill had long been thought to be sufficient mens rea for murder. Matters were somewhat complicated, however, by Drury v HM Adv 2001 SLT 1013. In this case it was suggested that murder requires not just intention to kill but 'wicked intention'. The court did not make clear what 'wicked' means in this context. However, it seems to have been understood subsequently as regrettable and awkward shorthand for lack of a defence: see e.g. Lieser v HM Adv 2008 SLT 866. Thus, in practice, intention to kill probably remains sufficient mens rea for murder. B. Wicked recklessness Historically, wicked recklessness was a flexible concept. Effectively, it applied to those accused whose intentions could not be proven, but whose conduct was nevertheless 1
thought to display sufficient fault for a murder conviction. More recent case law, however, has defined wicked recklessness in a more precise way. This requires (i) intention to cause injury and (ii) wicked disregard of or indifference to possible fatal consequences. Cawthorne v HM Adv 1968 JC 32
- Halliday v HM Adv 1999 SLT 485 Arthur v HM Adv 2002 SCCR 796
- HM Adv v Purcell 2008 JC 131
- Petto v HM Adv 2012 JC 105
3. Partial Defences to Murder (Voluntary Culpable Homicide) Two defences to murder are available that, if successful, reduce an accused's conviction from murder to culpable homicide: diminished responsibility and provocation. These defences are called partial defences because they result in a conviction for a lesser offence, rather than a full acquittal. They are unique to murder – although they may be pled in mitigation in other cases. Culpable homicide as a result of a partial defence is known as voluntary culpable homicide. A. Diminished responsibility The defence of diminished responsibility was developed by the Scottish courts in the 19th Century. Recently, it has been given a statutory basis: Criminal Procedure (Scotland) Act 1995 s. 51B (inserted by the Criminal Justice and Licensing (Scotland) Act 2010 s. 168): "(1) A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person's ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind." Unlike most other defences, this is for the accused to prove on the balance of probabilities: s. 51B(5). (i) Abnormality of mind At one time, diminished responsibility required mental illness somewhere short of legal insanity: see HM Adv v Savage 1923 JC 49. The law was overhauled, however, in
- Galbraith v HM Adv 2002 JC 1. This case held that the defence requires an 'abnormality of mind' that must be recognised by a relevant profession, but that need not amount to a mental illness. The new statutory provisions also add further guidance and clarification, e.g.: Abnormality includes recognised mental disorders (s. 51B(2)) 2
leading case on provocation is ** Drury v HM Adv 2001 SLT 1013. The Drury court held that provocation requires that the accused was caused to lose his/her self-control as a result of either (i) an assault or (ii) sexual infidelity. (i) Provocation by assault Normally, provocation must take the form of an assault. Mere words are not enough: Cosgrove v HM Adv 1990 JC 333
- Singleton v HM Adv [2011] HCJAC 70 If the accused is provoked to lose his/her self-control, then his/her retaliation must be proportionate to the provoking act – or at least, not grossly dis proportionate: Robertson v HM Adv 1994 JC 245
- Thomson v HM Adv 1985 SCCR 448 ** Drury v HM Adv 2001 SCCR 583 ** Gillon v HM Adv 2007 JC 24 (ii) Provocation by infidelity Sexual infidelity is the only exception to the rule that provocation requires an assault. Includes admissions as well as acts of adultery: HM Adv v Hill 1941 JC 59; Rutherford v HM Adv 1998 JC 34 The admission must, however, be clear: McCormack v HM Adv 1993 JC 170 Applies to any relationship (not just marriage) where fidelity is expected on both sides: McKay v HM Adv 1991 JC 91 Includes homosexual couples: HM Adv v McKean 1997 JC 32 Drury makes clear that the proportionality test does not apply to provocation by infidelity. The test is whether the ordinary person, having been thus provoked, would have acted in the same way. Until further authority emerges, this should be regarded as an objective test that does not have regard to the accused's particular characteristics. Compare the difficulties encountered by English law in interpreting this kind of test, and the new statutory solution: R v Smith (Morgan) [2001] 1 AC 146 A-G for Jersey v Holley [2005] 2 AC 580 Coroners and Justice Act 2009, s. 54 (iii) Immediacy of reaction Because the provocation defence is meant to target 'heat of the moment' reactions, it requires that the accused's loss of control follow immediately from the provocation: 4
Parr v HM Adv 1991 JC 39 Thomson v HM Adv (above) This requirement is problematic, however, in cases of 'slow-burn' provocation. Empirical evidence suggests that a loss of self-control often occurs as a result of a long course of abusive behaviour, rather than of a single triggering act. For example, domestic abuse victims who kill their partners often do so as a result of 'slow-burn' reactions. This has led to allegations that the provocation defence is biased against women: it privileges the 'explosions' of anger that men tend to experience over the fearful reactions of (mostly female) domestic violence victims. Again, this issue has arisen in a number of English cases, and a statutory solution to the problem has been attempted: R v Ahluwalia [1992] 4 All ER 889 R v Thornton [1996] 1 WLR 1174 Coroners and Justice Act 2009, s. 54(2) Further reading on provocation: J Casey, "Legal Defences and Expert Testimony on the Battered Woman Syndrome: a focus on self-defence" 2003 SLT (News) 247 K O'Donovan, "Defences for Battered Women who Kill" (1991) 18 Journal of Law and Society 219 (this is old but worth a read)
4. Involuntary Culpable Homicide The offence of culpable homicide catches various types of unlawful killing where the accused's culpability is less than that required for murder. As the following quotations show, distinguishing murder from culpable homicide is not an exact science and owes much to the historic existence of severe mandatory penalties for murder: "Culpable homicide is the name applied to cases where death is caused by improper conduct and where the guilt is less than murder." (Macdonald, Criminal Law of Scotland , 5 th^ edn (1948), p 96.) "When it comes to a choice between murder and culpable homicide the result does not depend on mathematical assessments of probability measured against the standard of reasonable foreseeability, but depends on a moral judgment which... could be summed up in the question "does A deserve hanging?"' (Gordon, Criminal Law , 3 rd edn, vol. 2 (2002) p. 299.) As we have seen, the defences of provocation and diminished responsibility reduce a murder conviction to a conviction for culpable homicide. We turn now to look at 5
Juries, however, have long been perceived to be reluctant to convict motorists of murder and culpable homicide. Prosecutors thus have the option to charge a specific, statutory road traffic homicide offence instead. The most prominent of these is causing death by dangerous driving: Road Traffic Act 1988, s. 1. Dangerous driving is defined as driving that falls 'far below what would be expected of a competent and careful driver': s. 2A. Other potentially relevant offences are: Causing death by careless or inconsiderate driving: s. 2B Causing death by careless driving when under the influence of drink or drugs: s. 3A Causing death by driving whilst unlicensed, disqualified or uninsured: s. 3ZB
6. Corporate Homicide Because of the demanding requirements for corporate criminal responsibility, it was formerly very difficult to hold corporations responsible for killings attributable to corporate negligence. This eventually led to the enactment of a new and dedicated offence of corporate homicide: Corporate Manslaughter and Corporate Homicide Act 2007, s. 1. This offence is very complex, but its requirements can be summarised as follows: The organisation must have owed a duty of care to the victim There must have been a gross breach of that duty The breach must have caused the victim's death The breach must have resulted from the way in which the organisation's activities were 'managed or organised' 7
