Culpable Homicide: Why Scotland Has No Manslaughter

Each major claim carries one of three labels. established means supported by primary records, official bodies or several independent reliable sources. shared means the core fact is sound but sources disagree on details, dates or interpretation. traditional means widely repeated but not traceable to a primary or independent source.

This card gives a general account of the law, not legal advice. Criminal law is complex and changes through court decisions and legislation.

A Scottish term

established Scots criminal law grew mainly from common law, developed by judges and by "institutional writers" such as Sir George Mackenzie in the seventeenth century and Baron David Hume in the late eighteenth. It never used the English term manslaughter. Instead, any killing that is criminal but not murder is culpable homicide.

Murder and culpable homicide

established In Scots law, murder is the killing of a person with either a wicked intention to kill or wicked recklessness, a recklessness so serious that it shows the accused did not care whether the victim lived or died. If the accused caused death unlawfully but did not have either form of murderous intent, the crime is culpable homicide. This means that the same physical act can be murder or culpable homicide depending on the accused's state of mind.

Voluntary culpable homicide

established Some killings would otherwise be murder but are reduced to culpable homicide because of a recognised plea. Provocation, a loss of self-control in response to violence or, in limited cases, the discovery of sexual infidelity, can reduce murder to culpable homicide. Diminished responsibility, where the accused's ability to control or determine their conduct was substantially impaired by an abnormality of mind, has the same effect. Developed by the courts from the nineteenth century, diminished responsibility was put on a statutory footing in 2010.

Involuntary culpable homicide

established Other killings were never intended. If someone causes death by an unlawful act, such as an assault, or by gross or criminal negligence, without intending death or being wickedly reckless, the crime is involuntary culpable homicide.

Companies and culpable homicide

established In 1999 a gas explosion in Larkhall killed a family of four. Prosecutors charged the gas company Transco with culpable homicide, but in 2003 the High Court dismissed the charge, because Scots law then required the guilty mind of an identifiable senior person, which could not be shown. Transco was instead fined £15 million under health and safety law. The case contributed to the Corporate Manslaughter and Corporate Homicide Act 2007, which created the offence of corporate homicide in Scotland.

Sentencing

established Murder carries a mandatory life sentence, with the judge setting a minimum term. Culpable homicide carries a maximum of life imprisonment, but sentences range widely to reflect the range of circumstances.

Killing in eighteenth-century Scotland: what the court records show

The historian Anne-Marie Kilday's study of serious crime before the High Court of Justiciary, 1700–1830, gives a picture of the killings the court dealt with. Men outnumbered women in homicide indictments by nearly three to one, though the gap narrows once infanticide is counted. Men usually killed outside the home, in drunken brawls or heated arguments, and premeditated murder was very rare. Soldiers appear strikingly often, especially in towns, a combination Kilday attributes to men who were regularly armed but often unoccupied. Women who killed did so almost entirely within the household.

Kilday found no real change across the period in the incidence, weapons, methods or motives of recorded killings, apart from a slight rise in poisonings late in the eighteenth century. In her view the idea of a "civilizing process", in which violence steadily declined, had only a limited part to play in Scotland before 1830. Because most killings were unpremeditated and committed "in hot blood", judges tended to treat robbery, which involved deliberate violence for gain, as the more heinous offence. This attention to the circumstances of a killing is the background against which the distinction between murder and culpable homicide developed.

• There is no crime called manslaughter in Scots law.
• Murder in Scotland can be committed by wicked recklessness as well as intention.
• Diminished responsibility was developed by Scottish courts in the nineteenth century.
• Corporate killing in Scotland is called corporate homicide.
• Culpable homicide is a common law crime, not defined in a statute.

• Myth: culpable homicide is just the Scottish word for manslaughter. It covers similar ground, but it is a separate common law offence developed by Scottish judges and writers. Scots law never used the English term.
• Myth: only an intention to kill makes a killing murder. In Scots law murder can also be committed by wicked recklessness, so the same physical act can be murder or culpable homicide depending on the accused's state of mind.
• Myth: a company can be charged with culpable homicide. The Transco case, dismissed in 2003, showed that Scots law then required the guilty mind of an identifiable senior person. Since 2007 companies face the statutory offence of corporate homicide instead.
• Disputed: whether violence steadily declined before 1830. Anne-Marie Kilday's study of the High Court records found no real change in the incidence, weapons or motives of killings between 1700 and 1830, and in her view the idea of a "civilizing process" had only a limited part to play.