High Court of Justiciary
| DOI | 10.1177/002201839806200401 |
| Date | 01 August 1998 |
| Published date | 01 August 1998 |
| Subject Matter | High Court of Justiciary |
HIGH
COURT OF JUSTICIARY
PROVOCATION: AVAILABILITY OF PLEA TO HOMOSEXUAL COUPLES
HM
Advocate v McKean
Vikki McKean was charged on indictment with the murder of a man. The
trial was before Lord Maclean and a jury in the High Court of Justiciary
at Glasgow: 1997 JC 32.
The evidence revealed that McKean was told that her lesbian lover had
been sharing her bed with the man during a period of about 10 days when
McKean and her lover had been separated. On discovering these
circumstances, McKean had killed the man by stabbing him repeatedly.
In the course of the trial a question arose as to whether the information
of the involvement of the lover and the man was capable of amounting to
provocation such as to reduce the crime from murder to culpable homicide.
On that point the trial judge directed the jury that, first, in these more
enlightened days of sexual equality there was no reason why the law should
not extend uniformly to a man and woman so that a wife or female
companion should have the benefit of the mitigating plea of provocation
equally with a husband or male partner.
Secondly, there was no reason, in the modern context, why the pleas
should not also be available to homosexual couples who live together and
were regarded in the community as partners bound together by ties of
love,
affection and faithfulness.
Thereafter the jury returned a verdict of not guilty of murder but guilty
of culpable homicide and McKean was sentenced to eight years'
imprisonment.
WHETHER POLICE ACTION CONSTITUTED UNLAWFUL DETENTION
Craig v Normand
Craig was charged by the Procurator Fiscal at Glasgow with breach of the
peace and a statutory offence of assaulting a police officer in uniform and
in the execution of his duty: 1997 SLT 919.
Craig had been found lying slumped over a seat on a bus and she
appeared to be either unconscious or asleep. A police officer attempted to
awaken her and when she came to, he smelled alcohol on her breath. She
then became aggressive and she was told that she would have to get off
the bus.
The police officers lifted the accused up because she needed support and
took her off the bus. They intended to ascertain how intoxicated she was,
and if she had been capable of looking after herself, they would have
released her.
The accused started shouting and swearing. The officers took her to the
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