Between accidental killing and murder : culpable homicide

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McDiarmid, Claire (2023) Between accidental killing and murder : culpable homicide. Juridical Review, 2023 (1). pp. 19-47. ISSN 0022-6785

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Abstract

This article is an in-depth analysis of the crime of culpable homicide in Scots law. Its underlying theme is the role which culpable homicide plays in acknowledging and responding fairly to both the uniquely serious harm to which it relates (death) and, simultaneously, the actual blameworthiness of the accused for the activity bringing this about. The circumstances in which one person may bring about the death of another are so varied that the level of culpability is not always easily reconciled with the magnitude of the harm. Alongside this, it offers a commentary on significant elements of the offence from the perspective of possible reform. The piece arises from work undertaken by the author whilst on secondment to the Scottish Law Commission (SLC) in 2018 and first appeared on the SLC website in 2021. It considers in particular: the way in which culpable homicide has been defined; the breadth of conduct which it covers; its wide-ranging seriousness from its proximity to murder at one end of the spectrum to conduct which would not otherwise constitute criminal homicide at all; its different forms (voluntary; involuntary lawful act; involuntary unlawful act) (including consideration of mercy killings and one-punch homicides); its mental elements with a particular focus on recklessness; the operation of art and part liability in relation to it. The article's approach is in keeping with that of the SLC Discussion Paper on the Mental Element in Homicide (Scot Law Com No 172) (2021) in raising reform-focussed questions on important aspects of the legal principles of culpable homicide without necessarily seeking to provide answers.

ORCID iDs

McDiarmid, Claire ORCID logoORCID: https://orcid.org/0000-0003-0782-6887;
CORE (COnnecting REpositories)