title: A comparison of murder and culpable homicide, 1973-1976
Creators: name: Geary, R.V.
Publisher: name: University of Glasgow
Year: 1979

description: The Scots law of homicide is based on principles that are both vague and flexible, thereby allowing the Crown, the Courts and juries to take a pragmatic approach in deciding whether to reduce a charge of murder to one of culpable homicide. The main reason why these principles are vague is that they evolved at a time when the death penalty was in existence, and there was an antipathy to having rigid principles that would have necessitated the imposition of the death sentence in cases where it was not considered to be warranted. Prior to 1965, murder, when it was not affected by the Homicide Act 1957, was consequently distinguished from culpable homicide on the basis of whether the accused should suffer the death penalty for having killed the deceased, and in fact it was rarely thought that he did warrant such a punishment. The Murder (Abolition of Death Penalty) Act 1965 has, however, transformed the situation by removing the restraints imposed by the existence of the death penalty. Consequently there is now a greater percentage of homicides regarded as murder than formerly, and cases that would previously have been regarded as culpable homicides may now be determined as murders. Although the law of homicide has not changed, these decisions can be justified on the basis that the reducing factors of homicide, of diminished responsibility or a lack of wicked recklessness on the part of the accused, or of provocation by the victim, are all relative. They can consequently be regarded as occupying hypothetical continuums against which individual cases can be judged, with one end of the continuums justifying reduction and the other end precluding it. Although the continuums provide the justification for whether reduction will occur or not, the cases in this sample fell into broad categories that appeared to influence whether they would be regarded as murders or culpable homicides. Certain homicides were normally considered to be sufficiently imbued with wicked recklessness for them to be regarded as murders because of certain factors in the killing, such as where the motive behind the killing was sexual or robbery. Premeditated killings formed only a very small proportion of the sample and were naturally regarded as murders. Killings in the private sector, normally involving older accused who were either related or closely acquainted to their victims, however, were more likely to be regarded as culpable homicides. In contrast, killings in the public sector, where the accused were more likely to be younger and unknown to the victim, were more likely to be considered to be murders. Killings in the public sector though, are more likely to be perceived as involving 'dangers' to society as a whole, whereas killings in the private sector are regarded as being domestic, although individual killings in the private sector are just as likely to arouse public indignation as killings in the public sector. Facts which are considered to be equivocal, such as whether the accused has been wickedly reckless, will normally be left to the deliberation of the jury whilst psychiatric or medical evidence indicating diminished responsibility or a lack of intent on the part of the accused will be more likely to produce reduction prior to the commencement of the trial. As imprisonment is now the punishment for both murder and culpable homicide, however, there is little point in maintaining what is basically an artificial distinction between the two crimes. Consequently the crimes of murder and culpable homicide should be abolished and replaced by a single crime of unlawful or criminal homicide, for which the penalty could vary from life imprisonment to absolute discharge.