Drury v HMA

From Wikipedia, the free encyclopedia

This article or section needs to be wikified to meet Wikipedia's quality standards.
Please help improve this article with relevant internal links. (June 2007)

The introduction to this article provides insufficient context for those unfamiliar with the subject.
Please help improve the article with a good introductory style.

If the accused successfully pleads provocation or diminished responsibility then his sentence is reduced from murder to culpable homicide.

The law was shaken up by the full bench decision of Drury. Normally, when prosecuting the Crown seeks to establish the appropriate actus reus, mens rea and lack of any defences. Controversially, Drury suggests that the mens rea of murder is “wicked recklessness”, where wicked means there is no defence. This means there is no mens rea if a defence exists.

This conflicts with the principle that a defence may be based on a mistaken belief by the accused (e.g. the belief he was being attacked), but the belief must be reasonable (Owens v HMA). Drury cannot be reconciled with this idea because holding an unreasonable belief may be “reckless” but it is not “wicked”.

Drury has been criticised as the judges went out of their way to discuss this issue but did not do so fully and did not cite authority. This has left the Scottish law of defences to murder in an awkward state.