Reforming Wicked Recklessness in the Scottish Crime of Murder

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Abstract

This paper considers the development of and potential reforms to the element of wicked recklessness within the Scottish crime of murder. It shows how case law has negatively affected how wicked recklessness is defined such that it now cannot adequately capture instances of death following extremely reckless risk-taking within the definition of murder in the absence of an assault. It also shows, using a comparison with the law in England and Wales, that moving to a definition of murder where intention would be the only standard of mens rea which could sustain a conviction would unacceptably distort the meaning of an 'intention to kill'. Finally, the paper endorses the standard of 'callous recklessness' set out by the authors of the Draft Criminal Code for Scotland and provides a proposal for how this concept should be interpreted. This interpretation contains both objective and subjective elements in order to provide a distinction between murder and culpable homicide.
Original languageEnglish
Pages (from-to)160-176
Number of pages17
JournalJuridical Review
Issue number3/4
Publication statusPublished - 2023

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