Homicide and Partial Defences

Question 1

MacDonald definition of murder

Answer 1

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 the consequences

Question 2

Drury v HMA

Answer 2

Intention to kill
In this case it was suggested that murder requires not just intention to kill but ‘wicked intention’. The court did not make clear what ‘wicked’ means in this context. However, it seems to have been understood subsequently as regrettable and awkward shorthand for lack of a defence: see e.g. Lieser v HM Adv 2008 SLT 866. Thus, in practice, intention to kill probably remains sufficient mens rea for murder.
FACTS:
D appealed against his conviction for the murder of a woman with whom he had been in a relationship, on the ground of misdirection. At the trial he had given evidence that the fatal assault, namely an attack with a hammer, followed his discovery that the deceased was having intercourse with another man, and had pleaded provocation. The trial judge directed the jury as to the standard definition of murder, namely that culpable homicide occurred where there was no intention to kill and the circumstances fell short of the required degree of wicked recklessness for murder and that for provocation to succeed the violence used should not be disproportionate to the provocation offered. 

HELD: allowing the appeal and granting the Crown leave to bring a new prosecution, that (1) murder required a wicked intention to kill or wicked recklessness as to whether the victim lived or died, and a person who killed under provocation was to be convicted of culpable homicide rather than murder because, even if he intentionally killed his victim, he did not have the wicked intention required for murder; (2) while, as a matter of policy, Scots law admitted the plea of provocation only where the accused had been assaulted and there had been substantial provocation, it admitted an exception by recognising that violence due to a sudden and overwhelming indignation caused by the discovery of sexual infidelity, was not committed with the wicked state of mind required for murder; (3) that in such a case the sexual activity and the lethal attack were incommensurable, and where provocation was put in issue the jury should be directed to consider whether on the evidence the relationship between the accused and the deceased was such as to give rise to a bond of sexual fidelity, whether the accused had in fact lost his self control as a result of the provocation, and whether the ordinary man or woman would have been liable to react in the same way in the same circumstances, and (4) that there had accordingly been a material misdirection of the jury resulting in a miscarriage of justice.

Question 3

Lieser v HMA

Answer 3

A person who claimed to have been acting in self defence because he believed that he was in imminent danger, had to have reasonable grounds for belief.

Question 4

Cawthorne v HMA

Answer 4

Wicked recklessness
Accused fired a gun into a room of people
Said he didn’t intend to kill, merely frighten
Judge said it could be inferred whether or not he intended to kill anyone.
Eg. Did he aim at the roof or at someone?
Judge said that a mens rea of recklessness would be sufficient mens rea for murder.
Accused was found guilty.
Appealed, but on appeal the High Court was satisfied that recklessness was sufficient for the mens rea for murder.

Question 5

Palazzo v Copeland

Answer 5

Wicked recklessness
Accused was annoyed by a group of young guys being loud outside his house
So he went outside and fired a shotgun.
Court held committing one bofp to stop another isn’t permissible.
Even if he had good reason, the intention was to put the young boys into fear and alarm, so he himself is committing breach of peace.

Question 6

Halliday v HMA

Answer 6

Wicked recklessness
2 brothers accused of murdering another guy
Convicted and appealed because the trial judge had told the jury that they could consider events that happened before and after the assault in deciding whether the brothers had been wickedly reckless.
Shook hands over the body after beating him up.
Came back to the scene and gloated over the body.
Were the acts after the assault relevant for the jury in deciding whether they had been wickedly reckless.
Appeals refused and court upheld the conviction.
Said it was up to the jury to decide whether actions before and after threw any light on the act itself.
Some commentators have been unhappy with this.
Mens rea and actus reus have to happen at the same time, so why take into account things that happened at a different time to the event?

Question 7

Arthur v HMA

Answer 7

Argument between husband and wife – they often got drunk and would have violent fights.
The wife died.
Medical evidence showed that the wife had been strangled.
The accused’s version of events was different – the wife attacked him and he pinned her down and the weight that he had placed on her chest had stopped her breathing – there was no intention.
HELD: recklessness sufficient mens rea for murder.

Question 8

HMA v Purcell

Answer 8

Accused charged with driving recklessly on a number of occasions throughout the same day. On one of these instances he was alleged to have gone round a queue of traffic at a red light, driving over the speed limit, and running over and killing a child crossing the road.
Accused was charged with murder. He argued that he did not have the required degree of wicked recklessness for murder.
Procesuctions response was that the facts of the case indicated a high degree of recklessness, therefore this was sufficient to amount to mens rea for murder.
This was appealed.
HELD: appeal allowed, wicked recklessness also required some form of intention to cause physical injury. Unless the prosecution could prove this, there could not be mens rea for murder on the basis of wicked recklessness.
Has to show wicked disregard for fatal consequences – goes against Cawthorne.

Question 9

Petto v HMA

Answer 9

Accused murdered his flatmate and sough to dispose of the evidence by burning the body.
They both lived on the ground floor of a tenement building – setting fire to the body resulted in fire damage to the other buildings in the block. An elderly person died as a result of smoke related injuries from the fire.
Accused was charged with not only the murder of his flatmate, but also the elderly person in the flat above.
Appealed against this – said that there was no intention to cause physical injury to the elderly person. Relied on Purcell.
HELD: there was the required intention – because they were on the ground floor, the accused would have foreseen that it was virtually certain that someone above would be injured as a result of the fire being set. This foreseeability meant that there could be wicked recklessness.

Question 10

Diminished responsibility

Answer 10

Partial defence to murder
Criminal Procedure (Scotland) Act 1995 s. 51B (inserted by the Criminal Justice and Licensing (Scotland) Act 2010 s. 168):

“(1) A person who would otherwise be convicted of murder is instead to be convicted of culpable homicide on grounds of diminished responsibility if the person’s ability to determine or control conduct for which the person would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind.”

Unlike most other defences, this is for the accused to prove on the balance of probabilities: s. 51B(5).

Question 11

Galbraith v HMA

Answer 11

Partial defences to murder: abnormality of mind
Diminished responsibility defence requires an ‘abnormality of mind’ that must be recognised by a relevant profession, but that need not amount to a mental illness.
Law put Galbraith into statutory form.
The new statutory provisions also add further guidance and clarification, e.g.:

• Abnormality includes recognised mental disorders (s. 51B(2))
• Intoxication is not itself an abnormality of mind, but does not prevent one from being established (s. 51B(3))
• At common law the condition of psychopathy could not be a basis for diminished responsibility (HM Adv v Carraher 1946 JC 108). However, there is no similar exclusion in the new statute.

Question 12

HMA v Savage

Answer 12

Judge – there must be aberration or weakness of mind. State of mind that is bordering on but not amounting to insanity.
At one time, diminished responsibility required mental illness somewhere short of legal insanity
Overhauled by Galbraith.

Question 13

Diminished responsibility for attempted murder

Answer 13

Reduced to assault

Question 14

Scots defence of diminished responsibility

Answer 14

• The Scots defence applies only to impairments of the capacity to ‘determine or control conduct’; the English defence also applies to other incapacities, e.g. to form rational judgements and to understand the nature of one’s conduct

Question 15

Drury v HMA

Answer 15

Leading case on provocation
The Drury court held that provocation requires that the accused was caused to lose his/her self-control as a result of either (i) an assault or (ii) sexual infidelity.

Question 16

Cosgrove v HMA

Answer 16

Provocation by assault
Involved an accused who was found guilty of murder after beating his victim to death.
The accused had heard that the victim had sexually assaulted a young girl. The accused took the law into his own hands. The victim confessed to having done this, and had shown no remorse.
The accused claimed that this constituted provocation, and that the murder could be justified on this basis.
HELD: the judge directed the jury in line with the Drury requirements. The accused was charged with murder – words do not constitute provocation.

Question 17

Singleton v HMA

Answer 17

Provocation by assault
2 co-accused and their victim, who had got into a fight at a takeaway.
There was some evidence that suggested that the victim had started the fight by insulting the co-accused.
Accused continued beating the victim long after they had ceased to pose any threat. The victim died as a result of his injuries.
The judge directed the jury that there was no provocation here – there were only words.
The accused were convicted of murder. Appealed, but the appeal was dismissed.

Question 18

Thomson v HMA

Answer 18

Provocation by assault must be proportionate
Involved two people who were former business partners. At some point their relationship had turned sour – one allegation was that the victim had been threatening unjustified legal action to the accused to get him to sign over his share of the business.
The two met to settle the dispute. It went off without incident for the most part. Just as the accused tried to leave, the victim tried to restrain him.
The accused snapped, and stabbed the victim to death.
The judge declined to leave provocation to the jury. The accused was convicted of murder and appealed.
HELD on appeal that there was no reason to doubt the trial judges decision. There was no relationship of proportionality between the provocation and the reaction of the accused.

Question 19

Robertson v HMA

Answer 19

Provocation by assault must be proportionate
Accused was convicted of murder after stabbing victim to death.
The victim had apparently made unwanted sexual advances towards the accused.
HELD: no proportionality. Accused was convicted of murder. The subsequent appeal was dismissed. The court used this form of words of “not grossly disproportionate”. This criteria was not thought to have been satisfied.

Question 20

Gillon v HMA

Answer 20

Provocation by assault must be proportionate
Fight between two people, the accused killed the victim. Claimed provocation on the grounds that the victim had started it – he had struck the accused first. The accused continued to attack the victim long after he had ceased to pose any threat.
Convicted of murder.
Appealed – argued that, following dicta in Drury, provocation should be seen as a part of the mens rea for murder. Following Drury, all that’s important is that the person lost self control – therefore they should be entitled to provocation defence.
HELD: It was held that this argument was wrong, the court reaffirmed that proportionality was required for provocation, Drury had not changed the law in this area. There must not be gross disproportion between the reaction and the attack.

Question 21

Provocation of infidelity

Answer 21

• The sole exception to the rule that provocation requires an assault
• One of the main questions: does this just apply to people who catch their partners in the act, or is there more discretion?
Admissions of infidelity can suffice.

Question 22

HMA v Hill

Answer 22

Provocation by infidelity
Accused who was a military policeman during the war stationed in England at the time. When stationed in England he suspected that his wife was having an affair.
He obtained leave from work to investigate his suspicions. Found that his wife was living in his home with another man.
HELD: the admission of infidelity was enough to invoke the exception.

Question 23

McCormack v HMA

Answer 23

Admission of infidelity must be clear
The accused initially argued that he had lost all memory of the incident.
Later, argued that he could remember. At some point during the fight, the victim had implied that the accused might not be the father of the child that they had together.
The accused relied on provocation as a defence.
HELD: what happened here was not sufficient to invoke the exception, this was not a clear admission of infidelity.

Question 24

McKay v HMA

Answer 24

Provocation by infidelity applies to any relationship (not just marriage) where fidelity is expected on both sides
A couple had been living together for a number of months but weren’t married.
There was a child in this relationship – it was found that the accused wasn’t the father.
The accused was charged with murder. His defence was that this was provocation, he could legitimately expect fidelity from his partner.
HELD: other conditions being satisfied, this would be enough for provocation.

Question 25

HMA v McKean

Answer 25

Includes homosexual couples
2 women involved in a relationship. One partner killed the other.
Provocation defence includes homosexual couples as much as heterosexual couples, and unmarried couples as well as married couples.

Question 26

Proportionality test

Answer 26

Drury makes clear that the proportionality test does not apply to provocation by infidelity. The test is whether the ordinary person, having been thus provoked, would have acted in the same way. Until further authority emerges, this should be regarded as an objective test that does not have regard to the accused’s particular characteristics.

Question 27

Stobbs

Answer 27

Suggested that a young girl’s threat to a man to tell his wife they had been having sex – was this verbally enough to amount to provocation?
Court said no.

Question 28

Jury considerations in infidelity provocations

Answer 28

• was the an expectation of a bond of sexual fidelity
• whether accused had lost their self control
• would an ordinary person be likely to act in the same way

Question 29

Bedder

Answer 29

Bedder had been taunted by a prostitute for being impotent, and he killed her as a result.
Tried to argue provocation.
Court said you cannot have a plea of provocation because the ordinary man wouldn’t have responded in the same way, because the ordinary man isn’t impotent.

Question 30

Parr v HMA

Answer 30

Immediacy of reaction
Loss of self control is needed for provocation.
This means you cant claim it if someone punches you, and then 3 days later you go round to their house and kill them – this is planned revenge.
Accused was tried for the murder of his mother.
The evidence was that they had a turbulent relationship which involved frequent drunken arguments and fights.
On one occasion, the victim had thrown another object at the accused. This had caused the accused to snap. He killed his mother.
He was initially charged with murder. Judge withdrew the provocation defence from the jury.
On appeal, that conviction was upheld.
We only look at the immediate timeframe – the fact that they had a turbulent relationship and had argued before was irrelevant. The accused’s actions were disproportionate

Question 31

Thomson v HMA

Answer 31

Cumulative provocation
Victim grabbed accused’s arm during an argument.
Accused stabbed victim to death.
There may be a history of a troubled relationship, but this should not be taken into account. Provocation only focuses on the last act that the accused’s actions flow from.
• Problematic in a class of cases involving people who kill their spouses or partners following a prolonged course of domestic violence or other domestic abuse – i.e. slow burn reactions.
Understandably, people are sympathetic towards these cases. Why shouldn’t provocation be available to victims of domestic abuse?
This immediacy criteria does still seem to exclude them where there is a relatively small act that results in the murder. It’s still disproportionate.

Question 32

Reformed defence in England: loss of self control

Answer 32

• Coroners and Justice Act 2009
• Qualifying triggers:
i). Fear of serious violence
ii). Justifiable sense of being seriously wronged
Comparing this to Scots law, the triggering acts are either assault or sexual infidelity. The English defence is significantly broader. In another respect though, it could be seen to be narrower. In Scotland, sexual infidelity is the sole exception.
In England, sexual infidelity is completely excluded. The Law Commission reasoned that we shouldn’t be sanctioning sexual infidelity as any kind of defence for murder.
• Loss of control need not be sudden
• Person of normal tolerance and self-restraint – but otherwise in defendant’s circumstances.
This is the English attempt to get around the problem of interpreting the test of the ordinary / reasonable person.

Question 33

Answering problem q on homicide

Answer 33

• establish homicide actus reus
• establish mens rea
• remember to address both murder and culpable homicide
  Voluntary culpable homicide = relates to murder
  Involuntary = only mentioned once it has been established that there is not murder
  Doesn’t matter what the act is, still be guilty of culpable homicide if it ends in death.
  This is different to accidentally causing injury.
  Has to be an unlawful act.

Question 34

Bird v HMA

Answer 34

Unlawful act culpable homicide
Accused ran after a woman, grabbed her shoulder, and that caused the woman to die from shock.
It’s no defense that this victim happened to be very sensitive and was easily shocked- think skull rule.
This demonstrates the constructive liability nature of unlawful act culpable homicide.

Question 35

Burns v HMA

Answer 35

Unlawful act culpable homicide
One punch homicide case.
Two people fighting in the pub, one swung a punch at the other . The evidence suggested that the punch wasn’t a particularly heavy blow –but it struck the victim in a particular place between the skull and the base of their neck. The punch cut off blood flow to the victims brain.
Uncontestable that there was culpable homicide here.
This case was an appeal against the sentence. On appeal, the sentence imposed was a non-custodial sentence. Community sentence was imposed.

Question 36

Mathieson v HMA

Answer 36

Other unlawful acts may suffice as a basis for a culpable homicide charge: fire raising
Guy set fire to some cans of paint at the rear of a building. The fire spread quickly to the building, and killed a number of elderly residents in the building. The fire caused their deaths.
The judge directed the jury that if they were satisfied that the accused had started the fire culpably, and that this had caused the deaths, the jury could convict the accused.
On appeal, that direction was upheld.

Question 37

Sutherland v HMA

Answer 37

Other unlawful acts may suffice as a basis for a culpable homicide charge: fire raising
Involved 2 people who were co-conspirators in an insurance plot. They were going to burn down the accused’s (one of the co-conspirators) house to get insurance money. They were going to cover the house in petrol and set fire to the petrol.
The fire got out of control and caused an explosion, and the result of this was that one of the co-conspirators was killed.
Unlawful act of setting the fire, and causation was enough to establish that there was culpable homicide.

Question 38

Lord Advocate’s Reference (No. 1 of 1994)

Answer 38

Other unlawful acts may suffice as a basis for a culpable homicide charge: drug supply
Involved homicide by drug supply.
Unlawful act: supply of drugs
Causation: if the supply of drugs causes the death of the victim, this is enough to establish culpable homicide.
The voluntary act of taking the drugs was no impingement on the chain of causation.
Held to be enough that the unlawful act of supplying the drugs was enough to establish causation.
This part of the decision was doubted in MacAngus..

Question 39

MacAngus v HMA

Answer 39

Other unlawful acts may suffice as a basis for a culpable homicide charge: drug supply
Involved homicide by drug supply.
Unlawful act: supply of drugs
Causation: if the supply of drugs causes the death of the victim, this is enough to establish culpable homicide.
The voluntary act of taking the drugs was no impingement on the chain of causation.
UNLIKE in Lord Advocate’s reference, the unlawful act of supplying the drugs was not enough to establish culpable homicide. If a prosecution wants to find culpable homicide cases like this, they have to establish reckless culpable homicide

Question 40

Lourie v HMA

Answer 40

Other unlawful acts may suffice as a basis for a culpable homicide charge: theft
Involved theft.
2 co-accused had conned an elderly victim into letting them into her house. They had used this opportunity to steal some of her possessions.
Sometime following this incident, the elderly victim had a heart attack and died. Prosecution alleged that the distress from witnessing the theft had caused her heart attack.
Accused were convicted of culpable homicide and appealed against this decision.
On appeal, the convictions were quashed on a lack of evidence – there was no evidence that the deceased had witnessed the theft.
It’s notable, though that the court didn’t take the opportunity to decisively rule out that theft could constitute an unlawful act homicide charge.

Question 41

Paton v HMA

Answer 41

Lawful act culpable homicide
“It is now necessary to show gross or wicked or criminal negligence, something amounting to, or at any rate analogous to, a criminal indifference as to consequences.”
The mens reas is not being defined as recklessness, it’s being defined as “gross, wicked, or criminal negligence” - this is less than recklessness.
There are problems with this test. The way that gross negligence is defined is circular.
When is negligence severe enough to become gross negligence? This is seen to be where it is severe enough to warrant a criminal conviction.

Question 42

Transco Plc v HMA

Answer 42

It has now been made clear that ‘gross negligence’ for these purposes effectively means recklessness
Involved an energy company responsible for supplying gas to a residential area. In this area, there was a gas explosion in a house, killing 4 people.
The company was accused of culpable homicide.
IT was alleged that the company was aware of safety defects in the system employed, but had not done anything to correct this.
There were a lot of issues raised on appeal on this case. They did talk about the required mens rea for this form of culpable homicide.
What was basically said was that “gross negligence” should be interpreted as meaning “recklessness”.

Question 43

McDowall v HMA

Answer 43

Involved dangerous driving. A person caused death by driving in a dangerous way, and this was charged as culpable homicide. The person was convicted on this basis.

Question 44

HMA v Purcell

Answer 44

P drove around stationary traffic speeding. He went over a crossing at a red light, and ran over and killed a child.
The accused was charged with murder.
On appeal, it was found that there was no “wicked recklessness” – there was no liability for murder.

Question 45

Statutory road traffic homicide offence

Answer 45

Juries are reluctant reluctant to convict motorists of murder and culpable homicide. Prosecutors thus have the option to charge a specific, statutory road traffic homicide offence instead. The most prominent of these is causing death by dangerous driving: Road Traffic Act 1988, s. 1. Dangerous driving is defined as driving that falls ‘far below what would be expected of a competent and careful driver’: s. 2A. Other potentially relevant offences are:

• Causing death by careless or inconsiderate driving: s. 2B
• Causing death by careless driving when under the influence of drink or drugs: s. 3A
• Causing death by driving whilst unlicensed, disqualified or uninsured: s. 3ZB

Question 46

Corporate homicide

Answer 46

Because of the demanding requirements for corporate criminal responsibility, it was formerly very difficult to hold corporations responsible for killings attributable to corporate negligence. This eventually led to the enactment of a new and dedicated offence of corporate homicide: Corporate Manslaughter and Corporate Homicide Act 2007, s. 1. This offence is very complex, but its requirements can be summarised as follows:

• The organisation must have owed a duty of care to the victim
• There must have been a gross breach of that duty
• The breach must have caused the victim’s death
• The breach must have resulted from the way in which the organisation’s activities were ‘managed or organised’