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Rethinking Mens Rea? Scottish Law Commission to Review ‘Metal Element’ of Homicide in Scots Law

The Scottish Law Commission have announced plans to launch a review into the common law crimes of murder and attempted murder and the mental element of each. 

The SLC is seeking the views of anyone with an interest in criminal law and justice to contribute to a discussion paper that will be considered by the committee when making its recommendations. This review comes in the wake of the appeal case of Petto v HM Advocate, in which the Appeal Court called for a top-down review of the mental element of homicide, stating in the judgement: “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”.

Such a liberalisation of homicide at common law would be the biggest reform to substantive criminal law in Scotland for years. The principles of the law of homicide have been shaped by both jurisprudence and institutional writings for hundreds of years. 

The SLC is looking for views, particularly on the following aspects of the law:

  • The current bipartite nature of Scots homicide law, which comprises the offences of murder and culpable homicide;
  • The language of Scots homicide law and whether the offences of murder and culpable homicide might benefit from statutory redefinition;
  • 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;
  • Whether a new partial defence should be created for people who kill following prolonged domestic abuse

In a statement, the chair of the SLC, Lady Payton, said: “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.”

Those interested in participating can lodge a response by 27 August 2021.

 

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