Drury v HMA

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.

References

* HMA v Drury is reported at 2001 SCCR 583.