Commission brings Scots definitions of homicide under review

The mental element in homicide is the subject of a new discussion paper published today by the Scottish Law Commission.

It covers the crimes of murder and culpable homicide, generally regarded as the most serious of all crimes in Scots law, in terms of gravity and impact on victims and their families.  

Both these crimes are still defined by the common law as developed over the centuries, and in the recent case of Petto v HM Advocate the Criminal Appeal Court stated that a comprehensive re-examination of the mental element was overdue.

Observing that the definitional structure in Scots law was antiquated, the court said: "we remain burdened by legal principles that were shaped largely in the days of the death penalty, that are inconsistent and confused and are not yet wholly free of doctrines of constructive malice" (where killing occurs in the course of another crime).

The 224 page discussion paper therefore considers and asks for views on a wide range of issues including:

• the current bipartite nature of Scots homicide law, with the two offences of murder and culpable homicide and the sometimes fine distinctions between them;
• the language of the law and whether the offences of murder and culpable homicide might benefit from statutory redefinition, moving away from the language of "wicked intent" and "wicked recklessness" for murder, and possibly subdividing the crime of culpable homicide to reflect different degrees of gravity;
• the applicability of and options for reform in relation to defences to a charge of homicide, including self-defence, necessity, coercion, provocation and diminished responsibility, including whether a partial defence of excessive force in self-defence should supplant the current defence of provocation, and whether self-defence should extend to defending one's own property against intruders;
• whether a new partial, or complete, defence should be created for people who kill following prolonged domestic abuse; and
• whether statute should expressly state that "rough sex" is not a valid defence in homicide.

Lady Paton, chair of the Scottish Law Commission and lead commissioner on this project, commented: "This discussion paper examines a wide range of issues in relation to the mental element in homicide in order to ascertain whether the law in this area is fit for purpose in today’s society.

"We are keen to hear from anyone interested in the law of homicide ranging from legal practitioners, criminal law academics, interest groups, victims and their families, through to the wider general public.  The responses we receive now will help us to shape policy and make any necessary proposals for future reform of the law."

Click here to access the paper. Responses can be made until 27 August 2021. 

The Commission has also published an executive summary of the paper and several standalone papers intended to complement the discussion paper. The first, entitled "Homicide Laws in Other Jurisdictions", provides consultees with information further to the comparative material which is noted throughout the discussion paper. The second is a paper on culpable homicide authored by Professor Claire McDiarmid, head of the School of Law at the University of Strathclyde. Lastly, there is a paper looking at statistics for homicide appeals in Scotland between 2010 and 2019.

Following consultation, the Commission will assess consultees' views and work towards publication of a report with recommendations for law reform.