Future of homicide and 11 other lessons from Scottish Law Commission's 2024 report

The Scottish Law Commission’s Annual Report 2024 has been published and gives an insight into the future of legal reform including homicide and mortgages, writes Joshua King

The report outlines the Commission's work over the past year promoting legal reform, notes the implementation of Commission recommendations and gives a flavour of publications planned for this year including on the law around mens rea and homicide.

The Commission is currently midway through its Eleventh Programme of Law Reform, covering the period from 2023 to 2027.

Included in this annual report are aspects of family law, homicide, securities over land, compulsory owners’ associations in tenements, damages for personal injury, the Tenancy of Shops (Scotland) Act 1949, and execution of documents.

Here are 12 key insights from the document.

1) A 'good year' for the Commission

Commission chair Lady Ann Paton begins her summary with an acknowledgement that "2024 was a good year for the Scottish Law Commission". The Trusts and Succession (Scotland) Act 2024, which received the Royal Assent, was a major milestone in a Commission project. The Judicial Factors (Scotland) Act was a similar success.

What's more, two Commission alumni have since assumed senior judicial roles: former Chair Lord Pentland was appointed Lord President and Lord Beckett, a member of a Commission Advisory Group, was appointed Lord Justice Clerk.

2) Trust law finally simplified

"Much-needed" is how Lady Paton described the Trusts and Success (Scotland) Act 2024. It "clarifies, modernises, and simplifies" a century's worth of Scots trust law. The Commission pushed hard for the reform and says it will bring benefits to business, charities and other institutions.

The Act received Royal Assent in January last year and broadly implements Commission recommendations from Trust Law (Scot Law Com No 239; 2014), together with two recommendations on succession from our Report on Succession (Scot Law Com No 215; 2009).

3) Further afield

The Commission has been involved in joint work with the Law Commission of England and Wales, work which culminated in the passing of the Automated Vehicles Bill at Westminster.

Insurance contract law has long been an area of joint work, and both Commissions have seen recommendations implemented in the Consumer Insurance (Disclosure and Representations) Act 2012, and the Insurance Act 2015 as amended by the Enterprise Act 2016, Part 5.

But an ongoing area of concern for the Scottish Commission is insurable interest in the context of life-related insurance, the current law of which appears to be "hindering the development of socially useful life-related insurance products". But "competing priorities" at the lead commission, England and Wales, mean the work has not been concluded.

4) Change of venue - a success?

June marked the first anniversary of the move from 140 Causewayside to the new premises in Parliament House. Lady Paton says: "Commissioners and staff continue to enjoy all the advantages offered by the refurbished premises".

5) New faces

Anne Stewart joined as part-time Commissioner from Shepherd & Wedderburn leading a project on Execution of Documents
Rachel Rayner replaced Charles Garland (Interim) as Chief Executive
Rebecca Farquhar, Natalie Fowler, Rachael Irvine and Julia Lopatka began work as Commission's new legal assistants

6) 60th anniversary celebration

The Commission will mark 60 years of work in 2025 and Lady Paton confirms there will be "suitable celebrations". Watch this space.

7) Publications

All the Commission's publications are available here.

8) Implementation

Moveable Transactions - some secondary legislation needed to implement the Moveable Transactions (Scotland) Act 2023 was laid before Parliament in December. It comes into force on April 1, and largely implements Scot Law Com No 249.
Trusts and Succession - As discussed, Trusts and Succession (Scotland) Act received royal assent early last year, implementing recommendations from Scot Law Com No 239 and Scot Law Com No 215.
Judicial Factors - The Judicial Factors (Scotland) Bill implements the recommendations in Scot Law Com No 233; 2013. Former lead Commissioner Patrick Layden KC supported the passage of the Bill.
Automated Vehicles - Once fully in force, it will broadly implement the recommendations in of the joint report with the Law Commission of England and Wales on Automated Vehicles: Scot Law Com No 258, Law Com No 404.
Leases - Automatic Continuation - Bill introduced in Parliament in December and will implement recommendations from Report on Aspects of Leases: Termination (Scot Law Com No 260; 2022).

Since 1965, a total of 195 law reform reports have been published by the Commission of which 161 have, in whole or part, been implemented. That is 82% of proposed reform.

9) Homicide

Lady Paton herself is chairing the project team overseeing the review of the law on the mental element in homicide, announced as part of the Tenth Programme of Law Reform and continued into this current Eleventh Programme. Last year the team developed policy in light of responses to a consultation on a a discussion paper (DP No 172).

The crux of the discussion is the weight given to mens rea in murder and culpable homicide cases, and whether the current bipartite structure of two different offences of unlawful killing separated by a judgement on the 'guilty mind' is fit for purpose.

The Commission aims to publish a final report and draft bill in autumn 2025.

10) Tenement Law

Work on reforming tenement law was prompted by a reference from Scottish Ministers in 2022 in relation to the establishment of compulsory owners' associations in tenement properties. Housing surveys have consistently flagged the high level of disrepair in tenement stock, in part because of "legal, technical and cultural obstacles" unique to tenements.

Dozens of responses were received by the Commission as the project group explored the issue and the year concluded with the team analysing those responses and developing a policy. It is understood a draft bill will be published alongside a final report, expected to come in spring 2026.

11) Heritable securities

Talk about a long-running debate - reform of the law of heritable securities was first mooted back with the Eight Programme of Law Reform, begun in the Tenth and carried over to the Eleventh. The Commission considers the piece of work a "major" project to review law which was last properly reformed by the Conveyancing and Feudal Reform (Scotland) Act 1970 which created the standard security over land ('mortgage').

The Commission's annual report states: "Our project aims to bring the law up to date, so that it better reflects the considerable societal and economic changes which have taken place since 1970. The reforms we have proposed in the project’s three Discussion Papers will develop the law to ensure the efficient operation of
modern property markets and the economy more generally."

Work to date has focused on pre-default matters such as how standard securities are created and their interaction with leases and other real rights, as well as technical issues such as sub-security arrangements. The next phase is the preparation of a final policy paper, work which is ongoing.

12) What's the bill?

And the cost for a successful year of law reform work? A total of £1,840,303, funded by the Scottish Government. This has risen from £1,736,935 in 2022 (2023 figures not available on Commission website at time of publication).