Drury v HM Advocate 2001 SLT 1013
Citation: Drury v HM Advocate 2001 SLT 1013
Rule of thumb: If you catch your partner in the act of having sex with another person, and kill one of them, is this murder? Probably, yes, though you may be able to argue culpable homicide.
Judgment:
the basic facts of this case were that Drury came home to find his wife having sexual intercourse with another man in his bedroom. Drury killed the other man with a hammer. Drury was convicted of culpable homicide in this case rather than murder – the Court held that where a man kills another man having sex with his wife, then this is deemed to be provocation, and this can reduce the charge to the next tier of offence down from what it would ordinarily have been. The Court held that this had to be explained in the full circumstances – that the ordinary person would have felt indignation, and, that there was an expectation of sexual fidelity in the relationship. "But what the trial judge describes is merely one type of situation that is covered by culpable homicide. As its name suggests, according to the current usage in our law (Burnett, Criminal Law, pp. 26 - 27) the crime of culpable homicide covers the killing of human beings in all circumstances, short of murder, where the criminal law attaches a relevant measure of blame to the person who kills. For instance, it covers cases where a person who is suffering from diminished responsibility intends to kill someone and does so. Even though the killing is intentional, the appropriate verdict is one of culpable homicide. Similarly, where the deceased has provoked the accused and the accused, under the influence of that provocation, kills him, the accused will be guilty of culpable homicide even though he intended to kill the deceased. Hume (i .239) describes these as cases where the accused 'has a mortal purpose, and yet is not in the first degree of guilt as a murderer: Because he is not actuated by wickedness of heart, or hatred of the deceased, but by the sudden impulse of resentment, excited by high and real injuries, and accompanied with terror and agitation of spirits.' Lord Justice General Rodger ‘Murder is constituted by any wilful act causing the destruction of life, by which the perpetrator either wickedly intends to kill or displays wicked recklessness as to whether the victim lives or dies’. Lord Rodger
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