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Homicide Law in Scotland - individuals
Back to main manslaughter/homcide page

This page sets out the law ofhomicide in Scotland as it applies to individuals in Scotland.

As far as the CCA is aware no company director or senior manager has ever been prosecuted for the offence of homicide involving a work-related death

What is regarded as the classic definition of involuntary culpable homicide is found in the 1936 case of Paton v His Majesty;s Advocate. In dealing with an appeal against a conviction for culpable homicide arising out of the driving of a motor car, Lord Justice-Clerk Aitchison observed at p.22:

"The difficulty that the case presents is whether there was evidence that the appellant was guilty of criminal negligence in the sense in which we use that expression. At one time the rule of law was that any blame was sufficient, where death resulted, to justify a verdict of guilty of culpable homicide. Unfortunately, this law has to some extent been modified by decisions of the Court, and it is now necessary to show gross, or wicked, or criminal negligence, something amounting, or at any rate analogous, to a criminal indifference to consequences, before a jury can find culpable homicide proved." (emphsis added)

Although the Judge uses the term 'negligence' it appears from comments made in the recent Transco criminal appeal that it is not necessary to prove that the the defendent owed a 'duty of care' (as is required in the English law of manslaughter). Lord Osborne stated in his ruling that:

From my consideration of the nature of the common law crime of involuntary culpable homicide, it appears to me to follow that civil common law duties of care, or civil statutory duties of care, can play no direct part in the assessment of guilt, except to the extent that their existence may serve to demonstrate the particular area of responsibility which an individual may carry. (para 7)

The fact that no civil law 'duty of care' is required potentially broadens the range of defendents that can be prosecuted for the offence - compared for example to the offence in England.

It also appears from the same case that it is necessary to prove a particular state of mind on the part of the defendant rather than just assessing the conduct of the defendant against an objective standard. Lord Osborne stated:

"where there is an issue of involuntary culpable homicide, the resolution of the issue depends, not upon some objective assessment of the conduct of the perpetrator alone, but upon an assessment of "his state of mind at the time of the accident", in other words, an enquiry into whether he possessed the necessary criminal intent at the material time, namely a "complete disregard of potential dangers and of the consequences of his [conduct]". (para 4)

And Lord Hamilton stated:

"These authorities make it plain, in my view, that under the law of Scotland the mental element (mens rea) is and remains a necessary and significant element in the crime of ("lawful act") culpable homicide. That element may, of course, be proved in various ways, including proof by inference from external facts. But it is, in my view, erroneous to suppose that the actual state of mind of a person accused of culpable homicide of this kind can be ignored and guilt or innocence determined solely on the basis of proof that the conduct in question fell below an objectively set standard." (para 38)

This requirement of a mental state is again disimiliar to the law in England - where it is not necessary to prove a particular state of mind (though it can be taken into account) - and makes it more difficult to prove that an individual has committed the offence of culpable homicide than that of manslaughter in England.

However, it should be noted Scottish approach to proof of a mental state has traditionally been fairly robust and "objective", tending to draw inferences of a particular state of mind fairly readily from behaviour.

To read about the law of manslaughter in England, click here

To read about the law of manslaughter in England/Wales, click here
To read about the investigation of manslaughter in England/Wales, click here
To see details of manslaughter prosecutions in England/Wales, Click Here
To get advice, contact us

Home -> Deaths, Inquests & Prosecutions -> Manslaughter Cases
Page last updated on April 11, 2008