Culpable Homicide

Overview

Voluntary Culpable Homicide

Involuntary Culpable Homicide

• Lawful Act

• Unlawful Act

Defintion

Causing of death in circumstances which, though blameworthy, fall short of the degree of disapprobation required for murder.

Actus reus is the same as murder, the act of taking a life however the mens rea is the dividing factor.

3 Key Cases

Drury v HM Advocate 2001 SCCR 583: provocation

HM Advocate v Robertson and Donoghue (1945): take victim as you find him/her

Tomney v HM Advocate [2012] HCJAC 138 

Voluntary

Causing the death of another human being, having intended to kill (etc.) but having been PROVOKED or suffering from DIMINISHED RESPONSIBILITY.

Difference between ‘provocation’ and ‘diminished responsibility’

In both cases, the killings are ‘voluntary’, that is, death was the intend outcome, but the mitigating factor means that the accused ought not to be equated with a murderer.

Provocation

It seems likely that the accused is fuelled by anger invoked by the provoking act.

Diminished Responsibility

A mitigating factor where the accused was suffering from mental impairment the time of the crime.

This degree of mental impairment s less than full-blown ‘mental disorder’ (a defence that results in acquittal) but, as its name suggests, is nonetheless regarded as being capable of lessening the accused’s criminal liability.

Drury v HM Advocate 2001 SCCR 583 - Voluntary

The case in of itself is an example of a killing in which the accused claimed to have been provoked.

Involuntary

Causing the death of another human being, with a mens rea that falls short of murder, but is nonetheless regarded as criminal

Involuntary Culpable Homicide - Unlawful Act

Arises where the accused is engaged in committing a crime and, though the death itself is unintentional.

The actus reus is the destruction of human life. The mens rea is that of the underlying crime, the crime in which the accused was engaged when death resulted.

Involuntary Culpable Homicide - Lawful Act

Arises where the accused is engaged in an activity which is otherwise legal.

The accused has caused a death unintentionally, we might even say ‘accidentally’, but there will have been a high degree of negligence involved.

The question is not whether the accused acted recklessly, but rather whether she possessed he necessary state of mind alongside the action causing death.

Involuntary lawful vs Involuntary unlawful

Where an lawful involuntary culpable homicide charge has been put in place, the accused started with a lawful action that accidently led to death.

Where an unlawful involuntary culpable homicide charge has been put in place, the accused did something illegal, but the crime itself wasn’t inherently violent or intended to harm anyone.

HM Advocate v Robertson and Donoghue (1945) - Unlawful

Tomney v HM Advocate [2012] HCJAC 138 - Lawful

The accused killed his friend by the discharge of a pistol. The accused, the deceased and third party were present in the living room of the accused’s home with the gun and some ammunition on the floor. Having ingested both alcohol and cannabis, the accused picked up the gun and, in someway; exerted pressure on the trigger. The pistol was pointing towards the deceased though the accused was not aiming at him.

This was held to be culpable homicide because the discharge of the gun was culpable and reckless, rather than accidental.