Do we need to reform the law on homicide?

Blog Written By Nicola Kane, LLB (Hons)                

Something that has always played on my mind is whether Scots law and in particular criminal law is outdated. Having recently read the article on the Scottish Legal News webpage where Lady Paton talks about the Homicide Project it is clear from what she has said that this particular area of law needs to be developed and modernised to fit with the ever-changing society that we live in.

There are several questions which arise within this article that I aim to address:

For me, there is a divide between murder and homicide in Scotland, this is due to the mens rea for both. The mens rea of murder is given the classical definition by MacDonald as “an intention to kill or a wicked recklessness to kill. Wicked recklessness is defined by many legal practitioners as the accused had a wicked disregard to the consequences of the crime.” Homicidehowever is the more genetic term used to describe any type of killing that does not fit this classical definition of murder.

Now the easiest option would be to consider a statutory redefinition of both murder and homicide by giving them a clear mens rea definition, but that would be more difficult than it seems given that homicide is for all killings that do not amount to murder therefore it would be difficult to redefine the mens rea of this.

There are defences that are already in place which play a crucial role within our legal system, there is both alibi and self defence that are common defences that are used in both murder and homicide cases, then there is provocation and diminished responsibility which only apply to murder cases as they have no practical effect to homicide cases and this is where the law becomes quite problematic.

By looking at the law surrounding sexual infidelity by provocation, where an accused has been provoked into killing their spouse who has been participating in any form of sexual behaviour with someone else. This defence applies to both murder and homicide cases and many legal practitioners are in disbelief that this law still exists as it is somewhat outdated. Professor McDiarmid looks at this issue in more detail through the Scottish Feminist Judgements Project and she says that she struggles to see the circumstances where killing a partner who has cheated is a reasonable reaction.

To conclude having looked at the Homicide Project and different aspects of the law surrounding this issue, I do believe that the law on homicide needs amended to make it fit with the ever-changing society that we live in. I trust the work that the Scottish Law Commission within this project will resolve the majority of the current inconsistencies but not them all, and that is something which would take much more time to write about.