Wicked no more — Inside the making of a modern law of homicide for Scotland

Bringing Scots homicide law into the 21st century: the Scottish Law Commission publishes its recommendations for reform following a thorough review.

The Homicide (Scotland) Bill, appended to the recently published Scottish Law Commission Report on the Mental Element in Homicide (Scot Law Com No. 269), contains proposed reforms which are intended to simplify, clarify and modernise the law of homicide in Scotland.

The report recommends that the homicide offences and partial defences, which are mostly provided for at common law, be placed into an accessible and coherent statute, to make the law easier to understand and apply. Other changes are recommended to ensure the law reflects the views and values of 21st century Scottish society. The report is available at the Commission’s website here; the draft Homicide (Scotland) Bill can be found at Appendix A.

The homicide offences: murder and culpable homicide (Sections 1 and 2)

The Scots law of homicide has a simple bipartite structure, comprising two offences: murder and culpable homicide. Murder is the most serious crime, which attracts a mandatory sentence of life imprisonment. Culpable homicide covers a wide range of offences, from a ‘single punch’ assault unexpectedly resulting in death to a killing which falls just short of murder.

These offences have been defined in the common law as developed by institutional writers and case law over centuries. In Scots law, it is the mens rea (the mental element) that categorises the offence, with significant consequences for both the accused and society’s attitude to the offence.

Difficulties in the common law definitions

The accepted classic definition of murder was that given by influential writer, JHA Macdonald: 

“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.”

Murder was considered to have two limbs or branches. The first limb required that the accused act with an intention to kill. The second limb required that the accused act with wicked recklessness. This two-limbed approach was adopted in all murder trials in Scotland from the 19th century onwards and was generally considered to work well in practice.

However, in the early 21st century matters became less settled. In 2001 a five-judge bench in Drury v HM Advocate 2001 SCCR 583 altered the first limb of the Macdonald definition by inserting the word ‘wickedly’ before the words ‘intended to kill’. In 2007 a three-judge bench in HM Advocate v Purcell 2007 SCCR 520 ruled that the ‘wicked recklessness’ second limb of the Macdonald definition required an element of ‘intention to injure’.

It was in direct reference to both Drury and Purcell that the Lord Justice Clerk (Gill) in Petto v HM Advocate 2011 SCCR 519 suggested that “a comprehensive re-examination of the mental element in homicide is long overdue”.

Unlike murder, culpable homicide does not have a classic definition in Scots law. It has been said that:

“ … the crime of culpable homicide covers the killing of human beings in all circumstances, short of murder, where the criminal law attaches a relevant measure of blame to the person who kills”.

Culpable homicide covers a very broad territory. It sits on the border with both murder and accidental killings (to which no criminal liability attaches). There are many ways in which life can be ended and whether a particular set of circumstances should result in the perpetrator being subjected to criminal prosecution and, if convicted, labelled a ‘killer’, often presents difficult questions of morality, contemporary values and social policy, in addition to legal principle and precedent.

There are several difficulties with the present homicide definitions:

• The concept of ‘wickedness’ in Scots homicide law is considered to be too outdated, archaic, vague and emotive for the modern day. No other English-speaking jurisdiction uses the words ‘wicked’ or ‘evil’ in its jurisprudence on the topic of the mental element in homicide.
• The qualification of the word ‘wickedly’ before ‘intended to kill’ in the first limb of murder is unnecessary and superfluous, as it has not changed the requirements of the crime in any material sense. Subject to certain very specific exceptions, someone who acts with the intention to kill another human being is obviously behaving wickedly.
• The assertion that the second limb of murder requires an element of ‘intention to injure’ has been criticised for restricting the scope of the offence to only those killings where there is a clear intent to cause injury. This means that there might be cases that are not captured by the offence although some consider ‘murder’ to be the most appropriate label.
• The law tends to describe rather than define the crime of culpable homicide. There have been many different formulations which cover a wide range of behaviours, leading some to criticise the crime as too wide, too vague and too all-embracing.
• The dividing line between common law murder and culpable homicide can be a fine one and it is often a question for the jury to decide how ‘borderline’ killings should be treated. Any reform would have to sustain a boundary between the crimes so that judges can give clear directions to juries in such cases.

Recent legal developments

In addition to those difficulties identified at the start of the project, the Commission’s review was informed by ongoing legal developments. The appeal court in the case of Kirkup v HM Advocate 2025 SLT 234 clarified that ‘evil intent’ in common law assault does not, as was traditionally understood, mean that evil consequences (ie injury) must have been intended. Rather, evil intent simply means that the assault must have been a deliberate interference with the affected person.

The Kirkup ruling draws a distinction between assault and intention to injure. An attack made on another person to cause them injury or harm will almost always amount to an assault. However, an assault can be committed even if there is no intention to injure; it could be assault where, for example, a person only meant to frighten or disrupt the victim.

A statutory definition for the second limb of murder could therefore take the form of an assault coupled with utter disregard for human life, without overly restricting the scope of the crime of murder.

Statutory definitions for murder and culpable homicide

Sections 1 and 2 of the draft Bill propose replacements for the common law homicide crimes. They introduce modern statutory definitions that clarify the mental element in both murder and culpable homicide.

To commit the crime of murder, a person must cause the death and (a) intend to cause the death of another person, OR (b) assault that person and behave with an utter disregard for whether that person, or any other person, lives or dies. 

To commit the crime of culpable homicide, a person must cause the death by (a) assaulting that person, OR (b) behaving in a manner which endangers another person and with an utter disregard for the consequences.

The new definitions provide a clear dividing line between the homicide crimes. Murder is marked as a crime of an especially grave nature, as death must be caused by some form of intentional conduct. The first limb retains the requirement of intent to kill. The second limb now requires an assault.

This change to the second limb of murder will alter the scope of the offence. The traditional standard of ‘wicked recklessness’ captured a wide range of killings where the accused acted in a grossly reckless manner. The Purcell ruling on ‘intention to injure’ then limited the offence to only those killings where the accused acted with the specific intention to cause harm or injury.

The requirement of an assault (as now defined in Kirkup) can therefore be considered a suitable middle route: it provides a modern and distinct definition for murder, absent the outdated language of ‘wickedness’, without going so far as to uphold what some might consider to be an overly restrictive ‘intention to injure’ requirement.

The proposed statutory definitions should assist in achieving a clear, careful and consistent assessment of wrongdoing in homicide cases.

The partial defences: provocation and diminished responsibility (Sections 4 and 5)

In Scots law there are two partial defences to murder, namely provocation and diminished responsibility. Those pleas, if successful, reduce what would otherwise be a murder conviction to one of culpable homicide. The partial defences account for circumstances that contributed to the killing and so reduce the accused’s responsibility for the death. In such cases, the label of ‘murderer’ is considered to be inappropriate in terms of fair labelling and sentencing.

Provocation

The partial defence of provocation was first defined in the common law in the early 19th century. There are certain requirements for a successful provocation plea: (i) provocative conduct by the victim (limited to physical violence or sexual infidelity), (ii) resulting in loss of self-control on the part of the accused, and (iii) an immediate retaliation, (iv) with violence which is not grossly disproportionate to the provoking act (or in the case of sexual infidelity, a reaction which might be expected from an ordinary person in the circumstances). The question is whether the defence, in its current terms, is fit for purpose in today’s society.  

The consultation identified strong and widespread objection to the defence of provocation by sexual infidelity. In Scotland, the discovery of an intimate partner’s sexual infidelity is a recognised provocative act, which is capable of reducing murder to culpable homicide. This line of defence is based historically on notions of male honour and sexual possession and therefore suffers from inherent gender bias. Indeed, in Drury v HM Advocate 2001 SCCR 583 Lord Nimmo Smith observed: 

“[w]hile expressing no view about it, I recognise that a serious criticism that may be made of the law relating to this category is that […] most often it is a man who is the killer and a woman who is the victim”. 

The continuing availability of the defence is incompatible with modern social attitudes which support gender equality and condemn violence against women.

The new Section 5 of the draft Bill redefines the defence of provocation. It provides that only physical violence can qualify as a provocative act, thereby removing the sexual infidelity limb and bringing the defence in line with modern values.

Diminished responsibility

The partial defence of diminished responsibility is currently defined in Section 51B of the Criminal Procedure (Scotland) Act 1995. It requires the accused to demonstrate that their ability to determine or control their conduct was substantially impaired by an abnormality of mind at the time of the killing – ie their responsibility for the killing was diminished, and so they should not be held liable for murder.

The court in Galbraith v HM Advocate (No 2) 2001 SCCR 551 observed that ‘abnormality of mind’ could result from a variety of conditions and causes, such as schizophrenia, brain injuries and domestic or sexual abuse.

A multitude of questions have arisen regarding the term ‘abnormality of mind’, including what conditions may qualify, whether the abnormality must be ‘recognised’ – whether by professionals or by textbooks and journals – and whether more should be done to align the law with policy aims combatting domestic abuse.

It became clear during the consultation that diminished responsibility continues to be a difficult and complex area of law. Little consensus emerged from the responses, and even where there was majority support for reform, no common themes could be detected to provide a clear route forward.

In part, this was the result of the wide variety of consultees responding to the consultation, including legal practitioners, legal academics, medical practitioners, clinical forensic psychologists, psychiatrists and campaign groups. The composition of consultees and the content of their responses shows that diminished responsibility occupies an unusual point of confluence between the substantive criminal law, criminal evidence, psychiatry, clinical psychology and other specialist disciplines. In other words, these topics straddle boundaries between legal and scientific disciplines.

It was therefore concluded that any reform proposals in respect of this highly specialised area of law should be reached on the basis of a standalone project and following full and proper consultation with all implicated groups.

While the report makes no substantive recommendations in relation to diminished responsibility, it is proposed (for ease of reference) that any new homicide statute should set out both of the partial defences to murder. Accordingly, the new Section 4 of the draft Bill repeats and replaces the existing statutory defence of diminished responsibility without any changes.

A domestic abuse defence?

Another multi-disciplinary area researched by the Commission concerned the possible creation of a special ‘domestic abuse’ defence for victims of domestic abuse who, after suffering years of abuse, ultimately snap and kill their abuser in circumstances that may not easily fit the recognised homicide defences of self-defence, diminished responsibility and provocation. 

However, research in this difficult and delicate area did not lead to a clear way forward.  Consultation produced conflicting views, with some in favour of such a defence and others against it. There were concerns that the defence would be wrongly used. An example cited was the ‘domestic abuse’ defence introduced in Victoria, Australia in 2005. That defence had to be withdrawn in 2014, as in practice it was hijacked by violent males (who had killed males) rather than being of assistance in the context of family violence.

There were also principled concerns that citizens should be encouraged to employ non-violent and lawful means of responding, rather than killing, and also that the new special defence might wrongly distract juries from a more appropriate ‘self-defence’ defence justifying acquittal. 

Further work in this area is required, but in the meantime, helpful developments include the Domestic Abuse (Scotland) Act 2018, which criminalises abusive behaviour such as coercive control; and a new set of jury directions on domestic abuse, which enable a trial judge to give the jury some relevant background, assisting the jury’s understanding (eg why a person might remain in an abusive situation) and their assessment of credibility.

Ultimate aim

The proposed reforms aim to simplify, clarify and modernise the law of homicide in Scotland and ensure it is fit for the 21st century. It will now be for the Scottish Government to consider the Commission’s report and recommendations, and to decide whether ultimately to bring forward legislation in the Scottish Parliament. 

Written by Rachael Irvine. Rachael Irvine is a recent legal assistant at the Scottish Law Commission who worked on the Homicide project with Lady Paton, Chair of the Commission and Lead Commissioner on the project.