Culpable Homicide

Culpable homicide is the killing of a person in circumstances which are neither accidental nor justified, but where the wicked intent to kill or wicked recklessness required for murder is absent.

There is no “manslaughter” in Scots law, but culpable homicide is its equivalent.

There are limited circumstances in which killing someone else is not a criminal act. For example, killing someone by accident or in self-defence would not be a crime. A doctor switching off a patient’s life-support machine in medically-justified circumstances would not be held criminally responsible for the resulting death (but that is not to say that no criminal liability for the death could arise – see the section on causation for more).

In all other circumstances, it’s a question of whether the accused has committed murder or culpable homicide.

The difference between being convicted of murder and culpable homicide can be massive. While a conviction for murder carries a mandatory life sentence, there is no such rule for culpable homicide, so the full range of disposals would be available to the court. It is quite possible to be convicted of culpable homicide and not be imprisoned.

Gordon v HMA (2018 HCJAC 21)

  • The appellant had been charged with the murder of his wife, but during his trial the Crown accepted a plea of guilty to culpable homicide by smothering her with a pillow. 
  • The evidence was that the appellant and the deceased had been in a loving relationship. The deceased had been extremely ill and in distress to the point at which she wanted to end her life with the support of the accused. She had a phobia of hospitals.
  • The deceased had tried to take an overdose of painkillers, but the appellant later told his children “The tablets were not working; I could not see her in that pain. I am not going to tell you what I did. I know I am going to go to jail, I do not know how long for but I do not have a single regret. There will be a post mortem and the cause of death will be asphyxia but she was in so much pain”.
  • The appellant later admitted to the police that he had “put a pillow over my wife’s head and set her free”
  • The appellant was sentenced to three years and four months’ imprisonment for culpable homicide. He appealed against his sentence. 
  • The Appeal Court, while reiterating that “mercy killing” is not a defence to charges of murder or culpable homicide, found that there was no benefit to any individual, or the public at large, from the appellant being in prison. They quashed the appellant’s sentence of imprisonment, and substituted an admonition.

It is quite common for someone accused of murder to take the case to trial, having admitted killing the deceased, in the hope of being convicted of culpable homicide.

We can classify culpable homicide in two ways: voluntary acts and involuntary acts.

Voluntary Acts

When somebody acts with the intention of killing somebody else, what makes it culpable homicide, rather than murder? Of course, the Crown has the discretion to charge somebody with culpable homicide rather than murder, for whatever reason it sees fit. In general, though, a conviction for culpable homicide as the result of a voluntary act on the part of the accused is because of the presence of either provocation or diminished responsibility (coming soon). 

Involuntary Acts

This category of actions describes situations in which the accused acted culpably, but did not intend to kill the deceased.

Most commonly, this category involves cases in which the accused was acting unlawfully in the first place. The most obvious example is assaulting the deceased – intending to injure them, but not intending to kill them. The page on causation gives examples of where the accused has unintentionally killed the deceased as the result of an illegal act, and has been convicted of culpable homicide. To repeat one:

Hendry v HMA (1987 JC 63)

  • Hendry had been convicted of culpable homicide.
  • He had inflicted a relatively minor assault on a 67-year old man.
  • The deceased had suffered a heart attack a short while later, and died.
  • There were various other factors that could have caused the deceased’s fatal heart attack (e.g. angina, heavy drinking).
  • Two medical experts were called as witnesses. Only one of them was of the opinion that it was more likely than not that the assault had caused the heart attack.
  • Hendry’s conviction was upheld on appeal. The jury was entitled to accept one expert’s opinion, and reject the other’s.

Other than assaults, culpable homicide appears to be a relevant charge when death results from setting a fatal fire to the deceased’s house with the intention of scaring, not killing them. However, the underlying unlawful act has to be directed against the deceased to count in this category.

More unusually, there are cases that are classed as lawful act culpable homicide. Confusingly, this category contains not only “legal” actions that result in death (e.g. carelessly cutting down a tree that crushes the deceased), but unlawful actions that are not directed against the deceased (e.g. supplying drugs to the deceased that cause death when taken).

Why does the lawful/unlawful act culpable homicide distinction matter? It’s because, in unlawful act culpable homicide cases, the Crown only needs to prove that the accused had the mens rea for the initial unlawful act. In other words, if the accused killed the deceased as the result of a single punch, the Crown only needs to prove the mens rea for the assault.

On the other hand, in lawful act culpable homicide cases,  the Crown needs to prove that the accused’s actions were sufficiently reckless. For example, say that the accused supplied drugs to the deceased, which killed him when he ingested them. In order to prove that the accused committed culpable homicide (as opposed to “just” the statutory offence of being concerned in the supply of controlled drugs), the Crown would need to prove “gross or wicked indifference to consequences”. This might mean the Crown and defence leading evidence on the deceased’s underlying health, or history of drug misuse (to establish his level of “expertise”), and therefore the foreseeability of his death from the accused’s standpoint.