Lady Paton, Chair
Graham McGlashan, Project Manager
Nicholas Burgess, Legal Assistant
We are in the midst of work on our project to examine the law of homicide which was announced in our Tenth Programme of Law Reform (February 2018). We are currently working towards developing a Discussion Paper on the mental element in homicide.
Background and context
We intend to examine the law of homicide to consider whether and, if so, how any necessary proposals for modernising the law in this important and sensitive area should be made. The topic has been included in some of the Commission’s previous Programmes, but the need to give priority to other projects has meant that it has not, as yet, been possible to take the matter forward. We believe that the time has now come when it is appropriate and necessary to do so.
By way of context we note that in the case of Petto v HMA 2011 SCCR 519 the Criminal Appeal Court stated that a comprehensive re-examination of the mental element in homicide was overdue. The Court observed that the definitional structure in Scots law was antiquated and said that: ‘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’. We would propose to examine these issues and to consider whether and, if so, how the law might best be developed and reformulated to address the difficulties identified by the court.
Some years earlier in the case of Drury v HMA 2001 SCCR 583, the same court had commented that the law of provocation should be reformed and restated in statutory form. We will explore this suggestion, provocation being an area of the law that often arises in homicide cases.
Anticipated scope of project
Against that background, we consider that the project should examine the principles underlying and the boundaries between the crimes of murder and culpable homicide; and the mental element required for the commission of each of these offences. We think that this work would constitute the core of the project. Under the current law the mental element of these crimes is defined in terms of concepts and language from a bygone age. This may give rise to difficulties in understanding and applying the law and in directing juries in modern and accessible terms.
The project will consider how the mental element for the various types of homicide is currently expressed and whether and, if so, how differing degrees of culpability should be reflected in the law.
We also intend to examine the nature, scope and definitions of the main defences that arise in cases of homicide; these include self-defence; provocation; and diminished responsibility.
Methodology and engagement
Comparative analysis of the approach taken in other jurisdictions will be important in regard to all of these topics. It will also be important to understand the views and experiences of stakeholders, including practitioners and members of the academic community. We propose to work closely with these groups amongst others.
The project to examine the law of homicide is Item No 4 of the Commission's Tenth Programme of Law Reform. We envisage that the project will be a medium-term one expected to take 5 years to complete. We anticipate that during the life of the project we may issue a series of Discussion Papers dealing with particular areas of the law of homicide.
Seminar on the Structure of Homicide and the Mental Element in Crime
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
For further information or if there are matters you wish to raise with us, please contact Graham McGlashan (firstname.lastname@example.org).