How do they do that? Automatism, coercion, necessity and mens rea in Scots Law

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Abstract

The case of Drury v HM Advocate 2001 SLT 1013 was regarded by academic commentators as potentially disruptive of the relationship between mens rea and defences in Scots criminal law, in relation to murder. Specifically, there was a concern that proof of the absence of a defence (such as self-defence and provocation) would now be required to establish the mens rea of wicked intention to kill. Contemporaneous and subsequent cases (Galbraith v HM Advocate 2002 JC 1 (diminished responsibility) and Lord Advocate’s Reference No 1 of 2000 2001 JC 143 (necessity)) were closely scrutinised to see if the trend was borne out in relation to other defences and other crimes. Though this appeared not to be the case, the issue itself remains worthy of scrutiny. This chapter examines that issue more generally, from a normative perspective, in relation to necessity, coercion and automatism in Scots law. It will seek to identify the existing relationship between mens rea and these defences and to consider how this might best operate.
Original languageEnglish
Title of host publicationGeneral Defences in Criminal Law
Subtitle of host publicationDomestic and Comparative Perspectives
EditorsAlan Reed, Michael Bohlander, Nicola Wake, Emma Smith
Place of PublicationFarnham
Pages159-169
Number of pages11
Publication statusPublished - Dec 2014

Publication series

NameSubstantive Issues in Criminal Law
PublisherAshgate Publishing Limited

Keywords

  • criminal Law
  • defences
  • automatism
  • coercion
  • necessity
  • mens rea
  • Scots law

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