Podcast
Questions and Answers
Which of the following best describes 'wicked recklessness' in the context of murder?
Which of the following best describes 'wicked recklessness' in the context of murder?
- Causing death through negligence or a failure to take reasonable precautions.
- Demonstrating a high level of indifference to the risk of causing death, akin to intent. (correct)
- Committing an intentional act that unintentionally results in death.
- Acting without considering potential harm to others, but without a direct intent to kill.
In Scottish law, which element distinguishes culpable homicide from murder?
In Scottish law, which element distinguishes culpable homicide from murder?
- The use of a weapon.
- The victim's identity being known to the perpetrator.
- The presence or absence of 'wicked intent' or 'wicked recklessness'. (correct)
- Whether the act was premeditated.
Based on the information provided, what reflects Lord Gill's opinion on defining the mental element in homicide cases in Scotland?
Based on the information provided, what reflects Lord Gill's opinion on defining the mental element in homicide cases in Scotland?
- Scotland's approach to defining mental elements in homicide is more mature than other English-speaking jurisdictions.
- The current legal principles are free from doctrines of constructive malice.
- The traditional terminology used in Scotland may hinder analytical accuracy. (correct)
- The use of terms like 'wicked' and 'depraved' enhances the clarity of the law.
Which of the following situations could potentially reduce a charge of murder to voluntary culpable homicide?
Which of the following situations could potentially reduce a charge of murder to voluntary culpable homicide?
What is the critical difference between voluntary and involuntary culpable homicide?
What is the critical difference between voluntary and involuntary culpable homicide?
In the context of road traffic homicides, which of the following actions constitutes an offence?
In the context of road traffic homicides, which of the following actions constitutes an offence?
Under what circumstances can a company be charged with culpable homicide?
Under what circumstances can a company be charged with culpable homicide?
According to the Corporate Manslaughter and Corporate Homicide Act 2007, what constitutes a 'gross' breach of a duty of care by an organization?
According to the Corporate Manslaughter and Corporate Homicide Act 2007, what constitutes a 'gross' breach of a duty of care by an organization?
What is the legal definition of assault, according to the provided material?
What is the legal definition of assault, according to the provided material?
According to precedent, can consent be used as a defence in assault cases?
According to precedent, can consent be used as a defence in assault cases?
What key element is required to prove assault?
What key element is required to prove assault?
Which of the following scenarios would be considered an aggravated assault?
Which of the following scenarios would be considered an aggravated assault?
What is the significance of the Children (Equal Protection from Assault) (Scotland) Act 2019 regarding 'reasonable chastisement'?
What is the significance of the Children (Equal Protection from Assault) (Scotland) Act 2019 regarding 'reasonable chastisement'?
What distinguishes reckless endangerment from assault?
What distinguishes reckless endangerment from assault?
Which of the following must be present for an action to be classified as murder?
Which of the following must be present for an action to be classified as murder?
What is the primary factor that differentiates involuntary culpable homicide from a non-criminal accident resulting in death?
What is the primary factor that differentiates involuntary culpable homicide from a non-criminal accident resulting in death?
In a case of corporate homicide, what is the standard used to define a breach of duty of care?
In a case of corporate homicide, what is the standard used to define a breach of duty of care?
If a driver causes a death due to a momentary lapse of attention while driving, what charge is most likely to be brought?
If a driver causes a death due to a momentary lapse of attention while driving, what charge is most likely to be brought?
What is the key difference between assault and aggravated assault?
What is the key difference between assault and aggravated assault?
What legal principle was established in Drury v HM Advocate 2001 SCCR 583?
What legal principle was established in Drury v HM Advocate 2001 SCCR 583?
What legal principle was established in HM Advocate v Purcell 2008 JC 131?
What legal principle was established in HM Advocate v Purcell 2008 JC 131?
What legal principle was established in Petto v HM Advocate 2012 JC 105?
What legal principle was established in Petto v HM Advocate 2012 JC 105?
What legal principle was established in HM Advocate v Harris 1993 JC 150:
What legal principle was established in HM Advocate v Harris 1993 JC 150:
What legal principle was established in Smart v HM Advocate 1975 JC 30; 1975 SLT 65:
What legal principle was established in Smart v HM Advocate 1975 JC 30; 1975 SLT 65:
What legal principle was established in John Roy 1839 Bell's Notes 88:
What legal principle was established in John Roy 1839 Bell's Notes 88:
Flashcards
Murder (definition)
Murder (definition)
Causing the death of another human being with wicked intent or through wicked recklessness.
Drury v HM Advocate
Drury v HM Advocate
Killing with wicked intent.
HM Advocate v Purcell
HM Advocate v Purcell
Killing with 'wicked recklessness'.
Petto v HM Advocate
Petto v HM Advocate
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Voluntary culpable homicide
Voluntary culpable homicide
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Drury v HM Advocate (provocation)
Drury v HM Advocate (provocation)
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Involuntary culpable homicide
Involuntary culpable homicide
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Road traffic homicide
Road traffic homicide
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Transco PLC v HM Advocate
Transco PLC v HM Advocate
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Corporate Manslaughter
Corporate Manslaughter
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Assault (definition)
Assault (definition)
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Smart v HM Advocate on assault
Smart v HM Advocate on assault
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HM Advocate v Harris
HM Advocate v Harris
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Study Notes
- Part 3 covers offences that threaten or harm bodily integrity
Homicide
- Includes murder, culpable homicide, and road traffic homicides
Murder
- Requires causing the death of another human being
- Also requires having a wicked intent to kill or through wicked recklessness
- Refer to Ferguson & McDiarmid, sections 9.10 to 9.14 for further reading
- Drury v HM Advocate 2001 SCCR 583: "wicked intent to kill"
- HM Advocate v Purcell 2008 JC 131: "wicked recklessness"
- Petto v HM Advocate 2012 JC 105: Foresight of consequences = intent to kill
- Starting a major fire on the ground floor of a building knowing people on upper floors will be killed or seriously injured equates to intention that such consequences should occur
- Scotland has a definitional structure in which the mental element in homicide is defined with the use of terms such as wicked, evil, felonious, depraved
- The authors of the draft Criminal Code for Scotland (2003) have assisted in thinking on the matter re inconsistent and confused legal principles that were shaped largely in the days of the death penalty
- Law reform would benefit from a comprehensive re-examination of the mental element in homicide
- Look out for the Scottish Law Commission Report
Culpable Homicide
- Includes voluntary and involuntary culpable homicide
Voluntary Culpable Homicide
- Intentional killing but due to provocation or diminished responsibility
- Refer to Ferguson and McDiarmid, sections 9.16.1 to 9.16.5 for further reading
- Drury v HM Advocate 2001 SCCR 583 relates to provocation
Involuntary Culpable Homicide
- Involves causing the death of another human being with a mens rea that falls short of murder
- Is nonetheless regarded as criminally culpable
- Refer to Ferguson & McDiarmid, sections 9.17 to 9.21.3 for further reading
- HM Advocate v Robertson and Donoghue (1945, unreported) concerns unlawful act, involuntary culpable homicide
- Tomney v H.M. Advocate [2012] HCJAC 138 concerns lawful act, involuntary culpable homicide
Road Traffic Homicide
- Includes causing death by dangerous driving
- Includes causing death by driving without due care and attention
- Includes causing death by driving while unlicensed, disqualified, or uninsured
- Refer to Ferguson & McDiarmid, sections 9.23 - 9.25 for further reading
Corporate Liability and Corporate Homicide
- Transco PLC v HM Advocate (No. 1) relates to a charge of culpable homicide against a company
- Refer to Ferguson & McDiarmid, sections 18.5 - 18.6 for further reading
Corporate Manslaughter and Corporate Homicide Act 2007
- S. 1(1): An organisation is guilty of an offence if the way its activities are managed or organised causes a person's death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased
- S. 1(4) defines 'gross' breach as conduct that falls far below what can reasonably be expected of the organisation
- S. 1(5) calls the offence corporate homicide, in so far as it is an offence under the law of Scotland
Assault
- Constitutes an attack on the physical person of another, done deliberately
- Refer to Ferguson & McDiarmid, sections 10.1 to 10.11 for further reading
- John Roy 1839 Bell's Notes 88: Not a deliberate attack
- Smart v HM Advocate 1975 JC 30; 1975 SLT 65: consent is no defense
- R v Brown [1994] 1 AC 212: sado-masochism
- NEW CASE [2025] HCJAC: Assault is an attack on the person of another with evil intent that is intentional, as distinct from being accidental, negligent or reckless, there is no need for there to be an intent to injure and to cause bodily harm
Aggravated Assault
- Includes assault with intent to rape
- Includes assault to the danger of life
- Includes assault to severe injury
- Includes assault to permanent disfigurement
- Includes assault to the permanent impairment of sight
- Includes assault with a weapon
- Includes Hamesucken
Reasonable Chastisement
- Children (Equal Protection from Assault) (Scotland) Act 2019
- S1(1): the rule of law that physical punishment of a child in exercise of parental right or a right derived from having charge or care of the child is justifiable and is therefore not an assault, ceases to have effect
Reckless Endangerment and Recklessly Causing Injury or Culpable and Reckless Injury
- HM Advocate v Harris 1993 JC 150: assault requires intent, but causing real injury by reckless conduct is a crime
- Refer to Ferguson & McDiarmid, sections 10.12 & 10.13 for further reading
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