''Drury v. Her Majesty's Advocate'' is a Scottish criminal case heard before a full bench (five judges) of the High Court of Justiciary sitting as the Court of Criminal Appeal. Stuart Drury had been convicted of killing his former partner with a hammer on concluding that she had begun a new relationship with another man. The original trial judge directed the jury that a finding of culpable homicide could only be made where the accused had not intended to kill and had not displayed enough wicked recklessness to convict of murder, and that a defence of

provocation Provocation, provoke or provoked may refer to: * Provocation (legal), a type of legal defense in court which claims the "victim" provoked the accused's actions * Agent provocateur, a (generally political) group that tries to goad a desired res ...

was only possible if the violence was proportionate to the provocation itself. In the Court of Criminal Appeal's judgement, the Lord Justice General, Lord Rodger, sought to clarify what he considered to be an incomplete standard definition of murder: {{Cquote, rder is constituted by any wilful act causing the destruction of life, by which the perpetrator either wickedly intends to kill or displays wicked recklessness as to whether the victim lives or dies. This was a controversial opinion, as it made murder a more difficult charge to prove. Normally, when prosecuting, the Crown seeks to establish the appropriate ''

actus reus (), sometimes called the external element or the objective element of a crime, is the Law Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the ("guilty mind"), produces criminal liability in th ...

'', ''

mens rea In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...

'', and lack of any defences; however, ''Drury'' suggests that the ''mens rea'' of

murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person wit ...

is "wicked recklessness", where wicked means there is no defence. This means that, if a defence exists, there is no ''mens rea''. The effect of this is that, if the accused successfully pleads provocation or diminished responsibility, his conviction is reduced from

to culpable homicide. 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 that 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".

References

* Drury v HMA is reported at 2001 S.C.C.R. 583. 2001 in Scotland Criminal defenses High Court of Justiciary cases Murder in Scotland 2001 in case law 2001 in British law