Criminal appeal which raises an important question regarding the mens rea of murder. In 2004 Samuel Petto stabbed his flatmate to death and, as part of a scheme to dispose of the body, set fire to the flat with petrol. Mrs Donnachie, one of the other occupants of the tenement was overcome by the smoke and died in hospital the following day. Mr Petto pled guilty to the murder of Mrs Donnachie. The following definition of murder set out in Gordon’s Criminal Law was approved by an Extra Division in HMA v Purcell in 2008:

“the actual situation is that there is murder wherever death is caused with wicked intention to kill or by an act intended to cause physical injury and displaying a wicked disregard of fatal consequences”

Mr Petto claimed that, with regard to his own case, since the libel did not allege that he assaulted Mrs Donachie, or had any intention to cause injury to her or any other person, it did not instruct a relevant charge of murder. His plea of guilty had therefore been tendered in error and he argued that he should be allowed to withdraw it.

In a unanimous five bench decision the appeal was rejected.

The Lord Justice Clerk (Gill) giving the leading opinion found that Mr Petto had not shown a relevant ground on which to allow withdrawal of the guilty plea which, in itself was sufficient to dispose of the appeal. However, the Lord Justice Clerk also noted that the appeal raised an important issue of mens rea and found that the appeal was misconceived in its reliance on Purcell. Purcell was a case in which the accused had driven a car recklessly and caused the death of a child on a pedestrian crossing. This case was different as it concerned the specific act of setting fire to a tenement. Mr Petto had set fire to the building deliberately in the knowledge that there were people living in it. Tenements are densely populated with only means of escape being an internal stairway. Where a person starts a fire on the ground floor of a tenement, the inevitable conclusion is that he does so in the certain knowledge that those on the upper floors will be at grave risk of death or serious injury. The appreciation of the virtual certainty that such a risk will occur and the deliberate acceptance of it should be equated with an intention that the consequences occur.

Since the appeal could be decided on the meaning of intent within the clear cut circumstances of the case, it was not necessary to explore current position with regard to the mental element in murder and culpable homicide more generally. However, the Lord Justice Clerk made it clear that a review of the law in this area would be desirable:

 “I have the impression that other English-speaking jurisdictions may have attained greater maturity in their jurisprudence on this topic than Scotland has. In Scotland we have a definitional structure in which the mental element in homicide is defined with the use of terms such as wicked, evil, felonious, depraved and so on, which may impede rather than conduce to analytical accuracy. In recent years, the authors of the draft Criminal Code for Scotland (2003) have greatly assisted our thinking on the matter; but we remain burdened by legal principles that were shaped largely in the days of the death penalty, that are inconsistent and confused and are not yet wholly free of doctrines of constructive malice. My own view is that a comprehensive re-examination of the mental element in homicide is long overdue. That is not the sort of exercise that should be done by ad hoc decisions of this court in fact-specific appeals. It is pre-eminently an exercise to be carried out by the normal processes of law reform.”

The full text of the decision is available from Scottish courts here.