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How do they do that? Automatism, coercion, necessity and mens rea in Scots Law

McDiarmid, Claire (2014) How do they do that? Automatism, coercion, necessity and mens rea in Scots Law. In: General Defences in Criminal Law. Substantive Issues in Criminal Law . Ashgate Publishing Limited, Farnham, pp. 159-169. ISBN 9781472433350

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    Abstract

    The case of Drury v HM Advocate 2001 SLT 1013 was regarded by academic commentators as potentially disruptive of the relationship between mens rea and defences in Scots criminal law, in relation to murder. Specifically, there was a concern that proof of the absence of a defence (such as self-defence and provocation) would now be required to establish the mens rea of wicked intention to kill. Contemporaneous and subsequent cases (Galbraith v HM Advocate 2002 JC 1 (diminished responsibility) and Lord Advocate’s Reference No 1 of 2000 2001 JC 143 (necessity)) were closely scrutinised to see if the trend was borne out in relation to other defences and other crimes. Though this appeared not to be the case, the issue itself remains worthy of scrutiny. This chapter examines that issue more generally, from a normative perspective, in relation to necessity, coercion and automatism in Scots law. It will seek to identify the existing relationship between mens rea and these defences and to consider how this might best operate.