Murder: no safety in numbers

The High Court’s opinion in HM Advocate v Purcell [2007] HCJ 13 has been issued today. This important decision on the law of murder follows a no case to answer submission made by counsel for Mr Purcell, who was accused of having committed murder by driving a car so recklessly that he hit and killed a young boy.

In an unusual move, the submission was dealt with by a bench of three judges. It has been suggested elsewhere that this might have been linked to the furore which followed the recent decision of Lord Clarke, sitting alone, to uphold a no case to answer submission in the World’s End case (see Scots Law News # 687).

The court’s opinion was published earlier today. In a careful review of the authorities, Lord Eassie resolves what might have been seen as the one major outstanding question on the mens rea of murder in Scots law: can a person be said to be “wickedly reckless” if they had no intention even to cause physical injury to the victim?

As a measure of the uncertainty surrounding this question, it might be noted that conflicting views are expressed in Gordon’s Criminal Law on this point (compare paras 7-18 and 23-17), while the two standard student texts also take diametrically opposed views: Jones and Christie, in Criminal Law, take the view that an intention to cause physical injury is required, while McCall Smith and Sheldon, in Scots Criminal Law, take the view that it is not required.

Both these pairs of authors, remarkably, cite Hume as their authority for their differing conclusions. In this writer’s view, it is Jones and Christie who read Hume correctly, and that accords with the conclusion reached by the Purcell court, which upheld the submission of no case to answer. (Thereafter, Mr Purcell pled guilty to culpable homicide and was sentenced to 12 years’ imprisonment.)

Some observations remain, however, which have a bearing on the procedure adopted in this case. The most important is that no reference was made to Brennan v HM Advocate 1977 JC 38. Brennan is commonly thought of simply as a decision on the defence of voluntary intoxication (or, rather, the lack of such a defence). However, much of the court’s decision actually turned on the mens rea of murder – and as a decision of seven judges, it deserves to be taken seriously on this point.

Brennan appears to have decided that if a person voluntarily becomes so intoxicated so as to suffer a “total alienation of reason”, and thus incapable of forming any mens rea at all, they can nevertheless be convicted of murder. And the reason for this outcome? Becoming grossly intoxicated itself demonstrates wicked recklessness. (See Brennan, at 50-51 and Jones and Christie, Criminal Law (3rd edn 2003), paras 8-60 and 8-61.) If wicked recklessness can be demonstrated in this way, it is difficult to accept the conclusion of the Purcell court.

Importantly, it is possible to interpret Brennan differently. Nevertheless, it is disappointing that the point is not addressed in the Purcell court’s opinion, and equally that the court did not refer (and presumably was not itself referred) to para 7-18 of Gordon’s Criminal Law.

This demonstrates the limitations of the procedure adopted by the Purcell court. Appellate courts are likely to produce better decisions not principally because of the larger number of judges that sit on them (although that may help), but because such courts have the benefit of being able to revisit an earlier decision and refine the arguments and reasoning presented there.

Those who can examine someone else’s reasoning, build on it and criticise it, have a rather easier job than those who addressed the question before they did, a point which should not be lost on academic commentators. Convening larger benches in the middle of a trial, with all the time constraints that entails, creates no such advantage and is not a substitute for normal procedures. As Lord Eassie says in his opinion (at para 19), it is regrettable that the point of law before the court was not raised as a preliminary matter before the trial had started.

Update (29/3/08): Regarding the above comments about Brennan, see now this more recent post about voluntary intoxication as a defence to rape.