Wicked and Reckless: Why Oscar Pistorious Would have been Convicted of Murder if Tried in Scotland

by Emma Flood Curated Media on September 15, 2014

Scots Law Murder Pistorius; Court of Session EdinburghOn Thursday 11 September 2014 Judge Thokozile Masipa determined that Oscar Pistorius was not guilty of premeditated murder. It was then up to the judge to decide between “dollus eventualis” (common murder), culpable homicide or acquittal – but how?

(And update at 21 October 2014: Pistorius given five years in jail and three-year suspended sentence for a firearms charge.)

The prosecution attempted to prove premeditated murder – that Pistorius purposefully shot Reeva Steenkamp following a heated argument. This was not effectively proven, leading to an assessment of the facts in light of the lesser charge of “dollus eventualis”

The doctrine of dollus eventualis dictates that you are responsible for the forseeable consequences of your actions – if you fire a gun four times through a door directly at a victim, it is likely to be fatal.

However, the twist in the tale is that Pistorius was on trial specifically for the murder of Reeva SteenKamp. He believed that Steenkamp was asleep in his bedroom and thus it was not reasonably forseeable by him that he could have killed her.

This led to the eventual conviction of culpable homicide. Culpable homicide in South Africa has the very low threshold of ‘negligence’ indicating that Pistorius was negligent in his actions leading to the death of Reeva Steenkamp.

It is speculated that under the criminal law of Scotland, Pistorius would be facing the much more serious charge of murder.

The Law in Scotland

By the law of Scotland, the mens rea element of the crime of murder is satisfied either by a wicked intention to kill or “wicked recklessness”.

The regularly cited definition of murder in Scots law is that set out by Macdonald, in A Practical Treatise on the Criminal Law of Scotland (5th ed)

“Murder is constituted by any wilful act causing the destruction of life, whether intended to kill or displaying such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences.”

The element of “wicked” recklessness was directed by Lord Roger in well known case of Drury v HM Advocate, 2001 SLT 1013, which has further clarified the mens rea element of the crime.

However, it is a much older case that appears to be most analogous to that of Pistorius and provides the greatest insight as to how the courts would determine whether Pistorius was guilty of murder.

Cawthorne v HM Advocate

The facts of Cawthorne v. HM Advocate 1968 S.L.T. 330 (HCJ) are very similar to that of the Pistorius case. The accused was living in a remote lodge with his mistress, known as Mrs Cawthorne and another woman, Barbara brown. After a heated argument, the accused left the lodge and fired two ‘warning shots’. The women, along with two men who had been called to help them, barricaded themselves inside. The accused then fired shots through the door into the room where the victims were hiding. The accused knew the four were there and the shots were fired at such a height so as to strike them. One of the four victims was wounded and the rest escaped unharmed. The accused was charged and convicted of attempted murder. The accused appealed, and in the appeal Lord Justice General Clyde said;

“The mens rea which is essential to the establishment of such a common law crime may be established by satisfactory evidence of a deliberate intention to kill or by satisfactory evidence of such wicked recklessness as to imply a disposition depraved enough to be regardless of consequences …. The reason for this alternative being allowed in our law is that in many cases it may not be possible to prove what was in the accused’s mind at the time, but the degree of recklessness in his actings, as proved by what he did, may be sufficient to establish proof of the wilful act on his part which caused the loss of life.”

This proves that the mens rea for the crime of murder is satisfied by the reckless act of firing gunshots through a door, whether the actual intention to strike the victims was there or not.

The blatant disregard for whether the victims are wounded and the foreseeability of injury or fatality is enough to satisfy the mens rea requirement.

Petto v HM Advocate

The caseof Petto v HM Advocate [2011] HCJAC 78 answers the important question of whether the mistaken identity, or unknown identity of the victim is a relevant consideration in the charge of murder.

In this more recent case, the accused had committed murder by stabbing his victim 8 times. He then, with his co-accussed sought to dispose of the body by setting fire to a flat within a tenement block in Glasgow. The fire caused extensive damage to the building, resulting in the death on of one the residents.

The accused pleaded guilty to the charge of murder of the resident, however later sought to retract this admittance on the ground that there was not the requisite mens rea, based on the fact his intention was to dispose of the body of his first victim and not to cause harm to others.

The court rejected this argument. The relevance of the Petto case is that the Court makes clear that the identity of the person killed is irrelevant to the charge – unlike the South African law. Lord Carloway said:

“It is not an exception to the principle that murder requires a deliberate attack intended to cause injury. Rather, in the circumstances here, the nature of the fire raising would have merited a charge of assault on the inhabitants, even if the fire raiser had not known the specific locations or identities of those inhabitants. It would, however, be different if the presence of inhabitants could not have been anticipated.”


It has been speculated by academics in South Africa that in fact the Judge erred in law when making the judgment. Professor James Grant of the Wits School of Law said;

“The judge got it right when she ended up concluding that it doesn’t matter who was behind the door, so as long as there was intention to kill whoever was behind the door,”

Comparing the Scots law approach to this statement, the law becomes more similar. As described in Petto the identity of the victim is irrelevant as long as the mens rea element is present.

The difference in Scots law is the doctrine of wicked recklessness,  which appears to go one step further than dollus eventualis in holding those who wickedly and recklessly carry out actions, which result in fatality, to account  for such actions as demonstrated in Cawthorne and Petto.

The law of Scotland indicates that Pistorious would be convicted of the murder of Reeva Steenkamp. He acted with wicked recklessness in firing shots at a height that would cause injury to the person behind the door (Cawthorne) and in Scots law, whether the identity or location of the victim is known is irrelevant (Petto), thus all of the elements for the crime of murder are present.

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