Homicide

Commissioner

Lady Paton, Chair

Team Members

Graham McGlashan, Project Manager
Rachael Irvine, Legal Assistant

Homicide law project

This project has now been completed. A Report on the Mental Element in Homicide, together with a draft Homicide (Scotland) Bill, was published on 25 September 2025.

An outline of the contents of the Report can be found in the Executive Summary and News Release. A Business and Regulatory Impact Assessment and a Report on Public Opinion Research conducted by Thinks Insight & Strategy (formerly BritainThinks) on our behalf are also available.

The SLC was pleased to receive a letter of acknowledgement and appreciation from the Cabinet Secretary for Justice and Home Affairs on 20th October 2025.  

Background

The current law of homicide in Scotland is almost entirely common law with the exception of the partial defence of diminished responsibility (set out in section 51B of the Criminal Procedure (Scotland) Act 1995) and the complete defence of mental disorder (set out in section 51A of that Act). Some of these laws are founded on outdated concepts that are no longer suited to the modern day, such as the sexual infidelity limb of the partial defence of provocation. A series of High Court cases from the early 21st century brought other difficulties within the law into sharp focus and highlighted the need for further reform.

The SLC, as part of its Tenth Programme of Law Reform (continued into its Eleventh Programme), considered how the law of homicide could be made fit for contemporary Scotland. The Report on Homicide recommends reform to address (i) the boundary between murder and culpable homicide, (ii) the mental element in each offence, (iii) the operation of certain defences to homicide, and (iv) the language of Scots homicide law.

The recommendations in our Report seek to simplify, clarify and modernise the law of homicide in Scotland and improve legal certainty by, amongst other things:

  • Removing the vague and emotive concept of “wickedness” from the definition of murder, without changing the type of criminal conduct properly recognised as murder. This ensures that the language used to define Scots homicide offences is clear, accessible, and suitable for modern criminal law.  The common law offence of murder is currently framed in terms of a person showing “wicked intention” or displaying “wicked recklessness” when causing the death of another.
  • Requiring that murder can only be committed where a person causes the death of another person and either (i) intends to cause the death or (ii) assaults the person and behaves with an utter disregard for whether the person, or any other person, lives or dies. The proposed definition in section 1 of the draft Bill seeks to provide a clear distinction between the crimes of murder and culpable homicide and requires some form of intentional conduct on the part of the perpetrator.
  • Proposing a statutory definition of culpable homicide in section 2 of the draft Bill, reflecting the current common law offence. Culpable homicide is defined as being committed where a person causes the death of another person by either (i) assaulting the person or (ii) behaving in a manner which endangers another person and with an utter disregard for the consequences.
  • Clarifying that Scots homicide law does not have a doctrine of constructive malice (which automatically attributes liability for murder where the killing occurs in the course of some other crime, such as robbery) thus confirming that individuals cannot be held liable for murder in cases where they do not act with the necessary mental element for murder as set out in section 1 of the draft Bill.
  • Removing the outdated and gendered defence of sexual infidelity provocation, so that such infidelity can no longer provide a basis for the partial defence of provocation. Instead, only physical violence will be deemed a provocative act that can reduce a murder conviction to one for culpable homicide.  A proposed statutory definition of the defence of provocation is set out in section 5 of the draft Bill. 

Discussion Paper

The Discussion Paper on the Mental Element in Homicide, which preceded the Report, was published in May 2021.  Alongside our Discussion Paper we also published an Executive Summary, News Release, a comparative paper entitled Homicide Laws in Other Jurisdictions, a paper on culpable homicide authored by Professor Claire McDiarmid, Head of the School of Law at the University of Strathclyde and finally a paper looking at statistics for homicide appeals in Scotland between 2010 and 2019.

Seminar on the Structure of Homicide and the Mental Element

To launch our project, on 5 October 2018 we held a seminar on the law of homicide at the University of Strathclyde in conjunction with Strathclyde and Glasgow University Law Schools.  Here is a link to our news release about the day.  Videos of the talks from the day can be viewed here.

Here are links to the Programme and slides which presenters spoke to on the day.

Introductory Remarks and Overview of Project:
Lord Pentland, Chair of the Scottish Law Commission and Project lead

Homicide in Scotland: Context and Prevalence
Dr Sara Skott, Mid-Sweden University

Structuring Homicide: A Broad Perspective
Professor Lindsay Farmer, University of Glasgow

Mens Rea of Murder: Wicked Intention to Kill and Wicked Recklessness
Professor James Chalmers, University of Glasgow 

Mens Rea of Culpable Homicide
Dr Claire McDiarmid, University of Strathclyde

Mens Rea of Art and Part Murder
Professor Fiona Leverick, University of Glasgow 

Issues in Reforming Homicide Law: the English Experience
Professor Jeremy Horder, LSE; former Law Commissioner

Contact

For further information please contact info@scotlawcom.gov.uk.