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'Something wicked this way comes' : the mens rea of murder in Scots law

McDiarmid, Claire (2012) 'Something wicked this way comes' : the mens rea of murder in Scots law. Juridical Review, 2012 (4). pp. 283-304. ISSN 0022-6785

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Abstract

This piece examines the mens rea of murder in Scots criminal law in its legal and theoretical contexts, arguing that, as the dividing line with culpable homicide, the mental element needs to reflect murder's greater blameworthiness. It follows the trajectory of three, relatively recent cases(Drury v HM Advocate; Purcell v HM Advocate and Petto v HM Advocate) looking at the meaning attached by them to the concepts of "wicked recklessness" and "wicked intention to kill". In relation to the former, it concludes that, alongside an extremely high (breathtaking) level of risk (of death) judged objectively, the law should also seek a subjective element, being an indication that the accused has accepted the risk of death created by his / her action.