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2024
ВЕСТНИК ПЕРМСКОГО УНИВЕРСИТЕТА. ЮРИДИЧЕСКИЕ НАУКИ
PERM UNIVERSITY HERALD. JURIDICAL SCIENCES
Выпуск 1(63)
Информация для цитирования:
Slavkovic V. Legislation Related to School Shootings in Great Britain // Вестник Пермского университета. Юридические науки. 2024. Вып. 1(63). C. 173-182. DOI: 10.17072/1995-4190-2024-63-173-182.
Slavkovic V. Legislation Related to School Shootings in Great Britain. Vestnik Permskogo universiteta. Juridicheskie nauki - Perm University Herald. Juridical Sciences. 2024. Issue 1(63). Pp. 173-182. (In Russ.). DOI: 10.17072/19954190-2024-63-173-182.
УДК 347.6
DOI: 10.17072/1995-4190-2024-63-173-182
LEGISLATION RELATED TO SCHOOL SHOOTINGS IN GREAT BRITAIN
V. Slavkovic
College of Criminalistics and Security (Nis, Serbia)
E-mail: vukan.s@ucg.ac.me
Received 14 Jan 2024
Introduction: school shootings remain a highly relevant topic for investigation because the social environment and interpersonal relationships play a leading role in the formation of aggressive intentions of perpetrators. The purpose of this study is to provide an overview of British legislation related to school shootings. Historically, the law of homicide in the United Kingdom has had a number of distinguishing marks. Structurally, the Scots law of homicide resembles the law of England and Wales because the offences of murder and culpable homicide in Scotland closely resemble the offences of murder and manslaughter in England and Wales. Methods: empirical methods of comparison; specific scientific methods: legal dogmatic method and method of legal norm interpretation. Results: the paper describes the law of homicide in England and Wales, including the common law, the relevant sections of British legislation and the proposals of the Law Commission for the creation of a new Homicide Act with a three-tier structure of general homicide. This overview also encompasses the punishment regime for murder by the Criminal Justice Act 2003 and Sentencing Act 2020. The law of England and Wales is compared with the law of Scotland, especially its crimes of homicide, sentencing guidelines and juvenile justice. Also, the article deals with rules concerning gun ownership. The 1996 Dunblane school shooting in the United Kingdom played a critical role in this issue as it sparked a campaign to change gun laws, which resulted in British lawmakers banning private possession of handguns.
Keywords: school shootings; intended violence; multiple killings; malice aforethought; sentencing guidelines
© Slavkovic V., 2024
БРИТАНСКОЕ ЗАКОНОДАТЕЛЬСТВО И МАССОВЫЕ РАССТРЕЛЫ В ШКОЛАХ ВЕЛИКОБРИТАНИИ
В. Славкович
Колледж криминалистики и безопасности (г. Ниш, Сербия)
E-mail: vukan.s@ucg.ac.me
Статья поступила в редакцию 14.01.2024
Введение: стрельба в школах остается весьма актуальной темой для изучения, поскольку социальная среда и межличностные отношения играют ведущую роль в формировании агрессивных намерений преступников. Цель: дать обзор британского законодательства, связанного с проблемой массовых расстрелов в школах. Исторически законодательство об убийствах в Соединенном Королевстве имеет ряд отличительных особенностей. Структурно закон Шотландии об убийствах напоминает закон Англии и Уэльса, поскольку преступления 'murder' и 'culpable homicide' в Шотландии схожи с преступлениями 'murder' и 'manslaughter' в Англии и Уэльсе. Методы: эмпирические методы сравнения; частнонаучные методы: юридико-догматический метод и метод толкования правовых норм. Результаты: в статье описывается законодательство об убийствах, применяемое в Англии и Уэльсе, включая общее право, соответствующие разделы британского законодательства, предложения Правовой комиссии по созданию нового Закона об убийствах, предполагающего трехуровневую структуру классификации убийств. Обзор также охватывает режим наказания за убийство согласно Закону об уголовном правосудии 2003 года и Закону о приговорах 2020 года. Законодательство Англии и Уэльса сравнивается с законодательством Шотландии: рассматриваются нормы касающиеся совершения убийств, принципов вынесения приговоров, а также правосудия по делам несовершеннолетних. Также в статье особое внимание уделено нормам о владении оружием. Массовое убийство в школе Данблейна в 1996 году оказало серьезное влияние на законодательство по этому вопросу: за трагическими событиями последовала кампания за изменение законов об оружии, в результате чего в Британии было запрещено частное владение огнестрельным оружием.
Ключевые слова: расстрелы в школах; умышленное насилие; множественные убийства; злой умысел;
принципы вынесения приговоров
Perché tanto delira, Lo 'ngegno tuo da quel ch'e'suole? O ver la mente dove altrove mira? Non ti rimembra di quelle parole Con le quai la tua Etica pertratta Le tre disposizion che'l Ciel non vuole, Incontinenza, malizia e la matta Bestialitade? e come incontinenza Men Dio offende e men biasimo accatta?
Dante Alighieri1
Introduction
School shootings are mostly committed by adolescent perpetrators and occur in schools or in a school-related place. The location is specifically chosen, often for its symbolic meaning to the perpetrator who
1 'Why wanders so yours intellect from that which is accustomed to? Or, truth, your mind where is it elsewhere looking? Have you no recollection of those words with which yours Ethics thoroughly discusses? The dispositions three, that Heaven abides not: - Incontinence, malice and insane bestiality? And how incontinence less God offends, and less blame attracts?' [1, p. 58].
wishes to take revenge on the community, or to experience or demonstrate power. Those perpetrating such crimes are usually current or former students of the attacked institution [5, p. 4].
The offender's narcissistic rage (which includes his sense of injustice and need for revenge) is one the key factors propelling him onto the path to intended violence. The injustice that he experienced during his life (either real or imagined), or grievances, set him on the first step of this path. Once he viewed that violence is the only decision, he then carried on through the remainder of the stages of the path to intended violence - researching and planning, preparing, breaching security, and finally his attacks [2, p. 120].
The term 'severe targeted violence in schools' encompasses every potentially fatal attack on individuals or groups for which the school setting is intentionally chosen. It avoids focusing exclusively on (planned) multiple killings in the school context and includes (planned) acts of killing where a perpetrator symbolically singles out targets on the basis of their function, such as teachers or the principal. Simple acts of vio-
lence occurring in the scope of interpersonal conflicts or other criminal cases where the location is merely a random site of opportunity are not categorized as severe targeted violence in schools. In the international research literature, the term 'targeted violence in schools' is used synonymously with the term 'school shooting' [5, p. 6].
School shootings, by proving that violence can happen any time, at any place, to any one, and by appearing to be unpreventable, signal a loss of control. In the school shooting discourse, which has to cope with the notion that presumably innocent children are capable of committing unspeakable crimes, employing the notion of evil is a common strategy for circumventing the necessity of causality. School shootings remain a highly relevant topic for analysis because the dynamics of the school shooting discourse can provide profound insight into the constitution of modern societies, the relevance of narratives, and the important role of fiction. School shootings are tragic and they are chaotic. They question societal notions of peacefulness and control, and they raise questions of preventability, of nature and nurture, of childhood and parenting, of guilt and accountability, of institutional and structural failure [6, pp. 15-17].
1. The law of homicide in England and Wales
Historically, the law of homicide has had a number of distinguishing marks in England and Wales. Under the common law, in order to convict a person of murder, the state had to prove malice aforethought. This element was difficult to establish when a felon accidentally or unintentionally killed someone during the commission of a felony. The felony murder doctrine , which developed in response to this situation, created a legal fiction of transferred intent where by the malice which adhered to the initial felony was deemed transferred to the felon's homicidal act, thus supplying the element of malice necessary to prove murder. The felony murder rule operated to impute malice to a felon's homicidal act when malice did not expressly exist. Thus, under the common law analysis, the felony murder doctrine did not extend to every homicide incidental to the commission of the felony; rather it included only those killings where the causation of the homicide was direct, i.e., where the fatal act was committed by the defendant or a co-felon in furtherance of the unlawful purpose. In order for a felon to be guilty of the homicide, the homicidal act (as in agency) must be either actually or constructively his [8, p. 186].
1 A widely accepted explanation of the origin of the doctrine is that at early common law, most, if not all, felonies were punishable by death so that it was of little consequence whether the felon was executed for the initial felony or the homicide committed in furtherance of that felony.
The felony murder doctrine has been abandoned in England since the adoption of Homicide Act 1957 , which is the principal statute of homicide . Its structure was much influenced by the decision to separate some capital murders from other non-capital murders. That separation ceased in 1965 when the death penalty was abolished, but since then the mandatory sentence of life imprisonment has continued to exert significant effects on the structure of homicide law [4, p. 5]. According to Section 1 of the Homicide Act 1957 (Abolition of 'constructive malice'), 'Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence' .
English law distinguishes between the offences of murder and manslaughter. There are two alternative fault requirements for murder: an intent to kill or an intent to cause grievous bodily harm [3, p. 244]. The Law Commission Consultation Paper No. 177 reviews the law relating to homicide in England and Wales, and sets out a number of provisional proposals in order to establish a more rational and coherent framework of legislation. Issues discussed include: the existing law and problems with it; the definition of murder and manslaughter; partial defences including provocation, diminished responsibility, and duress; the fault element in murder and the concept of intention; and the doctrine of double effect.
The paper proposes the creation of a new Homicide Act (to replace the Homicide Act 1957) to establish clear definitions of murder and the partial defences to it, as well as a definition of manslaughter, within a graduated system of offences (the ladder principle) reflecting seriousness of the offence and degrees of mitigation .
On November 29, 2006 was published report 'Murder, Manslaughter and Infanticide'. The Law Commission recommended that instead of the current two tier-structure of general homicide offences, namely murder and manslaughter, there should be a three-tier structure:
- first degree murder (mandatory life sentence);
- second degree murder (discretionary life sentence);
2 5 & 6 Eliz. 2. c. 11.
3 Ibid.
4 Homicide Act 1957. Available at: https://www.legisla-tion.gov.uk/ukpga/Eliz2/5-6/11/contents.
5 The Law Commission Consultation Paper No. 177 - A New Homicide Act for England and Wales (2005).
6 A new homicide act for England and Wales?: a consultation paper. Available at: https://searchworks.stanford.edu/ view/6496661.
- manslaughter (discretionary life sentence)1.
First degree murder would comprise:
- unlawful killings committed with an intention to kill;
- unlawful killings committed with an intent to cause serious injury where the killer was aware that his or her conduct involved a serious risk of causing death .
Second degree murder would encompass:
- unlawful killings committed with an intent to cause serious harm;
- unlawful killings intended to cause injury or fear or risk of injury where the killer was aware that his or her conduct involved a serious risk of causing death;
- cases which would constitute first degree murder but for the fact that the accused successfully pleads provocation, diminished responsibility, or that he or she had killed pursuant to a suicide pact.
Manslaughter would comprise:
- unlawful killings caused by acts of gross negligence;
- unlawful killings caused by a criminal act that was intended to cause injury or by a criminal act foreseen as involving a serious risk of causing some injury.
According to the Law Commission, the law governing homicide in England and Wales has some rules which have remained unaltered since the 17th century. This is even though it has long been acknowledged that they are in dire need of reform3. The Commission proposes that murder should be divided into a more and a less grave version. The graver version (first degree murder) is to continue to carry the mandatory life sentence, whereas the less grave version (second degree murder) will have a discretionary life maximum sentence. The Commission believes that effecting this division will do something to restore the authority of the law of murder by attending to basic distinctions, in point of culpability, between the ways in which homicide can be committed, and by making the available sentence track these distinctions [9, p. 7].
There have been growing calls for a review of the law on homicide, with MPs and senior legal figures suggesting the current mandatory life sentence for all murders creates injustices and should be scrapped.
The UK government has rejected growing calls for a major overhaul of the law on homicide, including the
1 Murder, Manslaughter and Infanticide. Available at: https://assets.publishing.service.gov.uk/media/5a7c5196e5 274a1b00422f5c/0030.pdf.
2 In its 2005 consultation paper, the Law Commission had provisionally proposed that 'first degree murder' should be confined to intentional killing, but in the 2006 report this was extended additionally to killing with intent to cause serious injury, coupled with an awareness of a serious risk of causing death (Homicide law reform. Available at: https://justice.org.uk/homicide-law-reform/).
3 Murder - Current project status. Available at: https://law com.gov.uk/project/murder/.
creation of a US-style offence of first-degree murder, saying it would create a 'murder-lite' category for most killings. The justice minister told MPs the government was officially keeping an open mind on the issue, but that the introduction of a three-tier system would mean downgrading most killings to a second-degree category, which the public would not accept .
At present, without changing the legal definition of the crime, the UK Parliament has outflanked the traditional judicial understanding that murder is essentially 'one crime (killing by malice aforethought); one sentence (life imprisonment)'. Parliament has done this by creating numerous differences between kinds of murder for sentencing purposes . These differences have drawn on ideas such as making the motive, or the mode of killing, or the status of the victim relevant to the judge's decision as to the minimum initial period that the killer must serve in custody. For example, the intentional killing of more than one victim, or a police officer on duty, or with a sadistic motive will justify a hefty minimum term (or even the rest of the offender's life) in custody. This development was designed to shore up public confidence in sentencing for murder [9, pp. 5-6].
The punishment regime for murder was made significantly harsher by the Criminal Justice Act 2003. With the suspension and then the abolition of the death penalty, a mandatory sentence of life imprisonment became the only sentencing option. Prior to the 2003 Act, the trial judge would recommend the minimum time to be spent in prison having given consideration to retribution, deterrence, and public safety. The judge's papers would then be sent to the Lord Chief Justice for scrutiny, and then delivered to the Home Secretary, the person who ultimately decided when the prisoner could be released. This administrative rather than judicial process was found to be non-compliant with the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights. Under these superseded arrangements, the average time a 'lifer' would spend in prison before release on licence was approximately 12 years.
Under the Criminal Justice Act 2003, determination of the minimum term is entirely in judicial hands, subject to strong statutory presumptions as to the appropriate minimum term. The minimum term for any murder is 15 years, although it may well be greater and, very exceptionally, lesser. The minimum term must be greater if the murder is a 'serious murder' as identified by the guidelines, such as murders of police or prison officers, murders with the use of firearms, sexual or sadistic killings, or killings motivated by racial
4 Murder law will not be reformed, justice minister tells MPs. Available at: https://www.theguardian.com/law/2016/sep/ 14/law-will-not-be-reformed-justice-minister-tells-mps.
5 Criminal Justice Act 2003. Sec. 269. Shed. 21.
or sexual prejudice. For such killings, the minimum term is 30 years. If the killing is 'exceptionally serious' -a premeditated killing of two or more people, sexually or sadistically motivated killing of children, politically motivated killings - the appropriate length of punishment is a whole-life term [7, pp. 65-66].
1.1. The sentencing guidelines
Large portions of the Criminal Justice Act 2003 were repealed and replaced by the Sentencing Act 20201. The Sentencing Council for England and Wales is a non-departmental public body that is responsible for developing sentencing guidelines, monitoring the use of the guidelines, and assessing and reviewing a wide range of decisions relating to sentencing2. The Sentencing Code3 states that the courts must follow any relevant sentencing guidelines, unless it is contrary to the interests of justice to do so. Sentencing guidelines help make sure that judges and magistrates in courts across England and Wales take a consistent approach to sentencing. Guidelines provide guidance on factors the court should take into account that may affect the sentence. They set out different levels of sentence based on the harm caused to the victim and how blameworthy the offender is (referred to in the guidelines as 'culpability'). It is necessary for the courts to have a range of sentences available that appropriately reflect the seriousness of each individual offence4.
Sentencing guidelines are available for most of the significant offences sentenced in the magistrates' court and for a wide range of offences in the Crown Court. The Council also produces overarching guidelines on general sentencing issues and principles such as Sentencing Children and Young People5. Where no offence-specific sentencing guideline exists, courts will refer to the General Guideline: Overarching Principles6.
1 Sentencing Act 2020 (c. 17).
2 History - Sentencing. Available at: https://www.sentencing-council.org.uk/sentencing-and-the-council/about-the-sen-tencing-council/history/.
3 Sentencing Act 2020 (c. 17).
4 Sentencing Code. Available at: https://www.sentencingcoun-cil.org.uk/sentencing-and-the-council/sentencing-code/.
5 The Sentencing Children and Young People: Definitive Guideline (2017) is for use in courts in England and Wales on the overarching principles for sentencing children and young people.
6 Where there is no guideline for a particular offence, judges and magistrates will refer to the General guideline for sen-
tencing offences that do not have a specific sentencing
guideline. The General guideline came into force on October 1, 2019. The General guideline can also be used alongside offence-specific sentencing guidelines where some factors are not covered in the offence-specific guideline and the courts require overarching guidance. (General guideline: overarching principles. Available at: https://www.senten-cingcouncil.org.uk/overarching-guides/magistrates-court/ item/general-guideline-overarching-principles/).
Judges will also refer to the Court of Appeal's judgments to look at how sentences have been reached for similar cases.
Legislation sets maximum, and sometimes minimum, sentences for offences, but the law is written in a way that gives judges and magistrates considerable discretion when it comes to sentencing. Sentencing guidelines help sentencers identify what type and length of sentence they could impose and set out the factors they should consider before making their final decision. By law, judges and magistrates must sentence according to the guidelines, unless it would be unjust to do so. They have the discretion to depart from sentencing guidelines if they think it would be in the interest of justice to do so, given all the circumstances of a particular case7.
The UK Parliament has decided that judges must give a life sentence to all offenders found guilty of murder. The judge will set a minimum term an offender must serve before they can be considered for release by the Parole Board. The minimum term for murder is based on the starting points set out in Schedule 21 of the Sentencing Code. The schedule sets out examples of the different types of cases and the starting point that would usually be applied. For example, where a murder is committed with a knife or other weapon which the offender took to the scene intending to commit an offence, the starting point for the minimum term would be 25 years. For the most serious cases of murder, an offender may be sentenced to a life sentence with a 'whole life order.' This means that his crime was so serious that he will never be released from prison8.
According to Schedule 21 of the Sentencing Act 2020, namely subsection 2 of Section 322 (Determination of minimum term in relation to mandatory life sentence for murder etc.):
(1) If
(a) the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and
(b) the offender was aged 21 or over when the offence was committed, the appropriate starting point is a whole life order.
(2) Cases that would normally fall within subparagraph (1)(a) include
(a) the murder of two or more persons, where each murder involves any
7 About sentencing guidelines. Available at: https://www.sen-tencingcouncil.org.uk/sentencing-and-the-council/about-sentencing-guidelines/.
8 Life sentences. Available at: https://www.sentencing-council.org.uk/sentencing-and-the-council/types-of-sen-tence/life-sentences/.
of the following -
(i) a substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation1.
1.2. The Firearms (Amendment) Act 1997
On November 1, 1967, a shooter entered a girls' needlework class at St. John's High School in Dundee, armed with a shotgun. He held the 14- and 15-year-old pupils and their pregnant teacher captive. During the standoff, he raped one girl and sexually assaulted another. Anxious that a police sniper might be waiting for a sight of him, he instructed the teacher to close the only curtain in the room that remained open. As she reached up to do so, he fired without warning at her back. The teacher was taken to the Dundee Royal Infirmary, where she died from her injuries [13, p. 103].
On March 13, 1996, a school shooting occurred at Dunblane Primary School in central Scotland. The shooter was armed with two semi-automatic pistols and two revolvers and carrying hundreds of rounds of ammunition loaded into high-capacity magazines, all legally held. Within minutes he shot and fatally wounded one teacher and sixteen 5- and 6-year-old children. Another ten children and three teachers were injured. All of his victims were shot with a 9-mm semiautomatic pistol. The shooter then killed himself with one of his revolvers. To this day, it is the deadliest mass shooting in the UK history [14, p. 185].
The 1996 school shooting sparked a campaign to change gun laws in the UK. Families of Dunblane victims and survivors advocated for stronger restrictions on gun ownership, and their efforts spurred lawmakers to action, which resulted in ban on private ownership of handguns2.
In the aftermath of the massacre, residents of Dunblane initiated a petition to seek changes in British gun laws. In February 1997 Parliament responded by passing a law banning private ownership of handguns above .22 calibre, and in November 1997 the ban was extended to all handguns. In addition, security requirements for gun clubs were expanded. Following the passage of those laws, the incidence of gun killings in the UK dropped significantly [16, p. 188].
1 Sentencing Act 2020. Available at: https://www.legis-lation.gov.uk/ukpga/2020/17/contents.
2 Available at: https://www.politifact.com/factchecks/2023/ mar/31/instagram-posts/yes-uk-banned-handguns-after-1996-school-shooting/.
The Dunblane massacre was the last school shooting to occur in the UK. The laws adopted by the British Parliament after it made private handguns virtually impossible to obtain in most of the UK (assault weapons, such as an AR-15, are available under license, as are several types of firearm in Northern Ireland). Gun deaths and mass shootings are now vanishingly rare.
Handguns are permitted in Northern Ireland, the Channel Islands, and the Isle of Man which have their own legislation. Scotland imposes an additional licensing regime on air guns, which is not mirrored in England and Wales. While Scotland has had its own parliament (Holyrood) since the Scotland Act 19983, the power to legislate on firearms was reserved to Westminster, but the Scottish government wanted to enact stricter laws. In Northern Ireland, firearms control laws are primarily regulated by the Firearms (Northern Ireland) Order 2004, which is slightly different from the law in Great Britain.
Eight days after the shooting, the British government tasked senior judge Lord Cullen with a major public inquiry in which Cullen recommended stricter limitations, but not an outright ban on handguns. A tightening of the law followed, outlawing high-caliber guns such as those used at Dunblane, but still allowing some handguns to be used at shooting ranges and clubs. Nevertheless, public sentiment for a full handgun ban
4
was growing .
The Firearms (Amendment) Act 1997 was introduced in the United Kingdom in response to the Dunblane school massacre and the recommendations of the Cullen Report5 that followed it. It effectively banned the private possession of all handguns other than those chambered for .22 rimfire cartridges in Great Britain (not Northern Ireland) by making them subject to Section 5 (Prohibited Weapons) of the Firearms Acts. The Firearms (Amendment) (No. 2) Act 19976 extended the class of prohibited weapons under the Firearms Act 19687 to include all small-calibre pistols, but it does not extend to Northern Ireland, where firearms regulations differ8.
3 Scotland Act 1998 (c. 46).
4 Why the UK hasn't had a school shooting since 1996? Available at: https://www.businessinsider.com/uk-changed-laws -ended-school-shootings-after-1996-dunblane-massacre-2022-5.
5 The Cullen Report can refer to one of the reports of public inquiries that were overseen by William Cullen, Baron Cullen of Whitekirk.
6 Firearms (Amendment) (No. 2) Act 1997 (c. 64).
7 Firearms Act 1968 (c. 27).
8 Firearms (Amendment) Act 1997. Available at: https://www.legislation.gov.uk/ukpga/1997Z5.
2. Crimes of homicide in Scots law
Under Scots law, criminal offences can be put into one of two broad categories: common law offences and statutory offences. Common law crimes - like assault, theft, murder, culpable homicide, fraud, and breach of the peace - were not created by Parliament, and as such are not defined in legislation1. There are two crimes of homicide in Scots law: murder and culpable homicide. The behavioural element of both is the same: 'the deprivation of life'. A homicide charge remains competent no matter how long after the initial attack the death occurs. Conviction of assault and homicide arising out of the same incident is, therefore, possible. Thus, murder and culpable homicide are not just forms of aggravated assault but crimes in their own right. Since both murder and culpable homicide have the same actus reus, it is the mens rea that distinguishes them. The distinction matters because conviction of murder carries an automatic life sentence. For culpable homicide, the whole spectrum of sentencing options is available [12, pp. 91-92]. According to the decision in Drury v HM Advocate (2001): 'murder is constituted by any willful 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'.
From this, it is clear that there are two possible mens rea for murder: (1) wicked intention to kill, or (2) wicked recklessness. These are separate and distinct mental elements and only one need be proved.
Culpable homicide applies to all cases of killing which are neither accidental nor justifiable, and which are not sufficiently serious to amount to murder. As Lord Justice General Rodger put it in Drury v HM Advocate (2001), 'the crime of culpable homicide covers the killing of human beings in all circumstances, short of murder, where the criminal law attaches a relevant measure of blame to the person who kills'2. It is usually divided into two categories:
(1) voluntary culpable homicide;
(2) involuntary culpable homicide.
A voluntary culpable homicide is one where the conduct falls within the scope of murder but where an extenuating factor exists in the form of provocation or diminished responsibility. The effect of this factor is that the accused is not liable to be convicted of murder but instead of culpable homicide. Involuntary culpable homicides are those which are not voluntary ones.
1 Common Law and Statutory Offences. Available at: https://crime.scot/common-law-and-statutory-offences/#: ~:text=The%20way%20I%20tend%20to,are%20not%20defin ed%20in%20legislation.
2 Stuart Drury v. Her Majesty's Advocate. Available at:
https://www.scotcourts.gov.uk/search-judgments/judg-ment?id=121787a6-8980-69d2-b500-ff0000d74aa7.
Within the level of involuntary culpable homicides, there is a further distinction between lawful act killings (where a fault element of gross negligence is required) and unlawful act killings (where death occurs as a consequence of a criminal act even though there was no intention to kill or even necessarily to injure the victim) [10, p. 236]. The 'unlawful act' type arises where the accused is engaged in committing a crime and, through his criminal actions, causes someone else's death, though the death itself is unintentional. A lawful act becomes a criminal one when committed with a criminal state of mind. It is difficult to be precise about when negligence becomes so gross that it constitutes this form of mens rea [12, p. 105].
Structurally, the Scots law of homicide resembles the law of England and Wales. The offences of murder and culpable homicide in Scotland closely resemble the offences of murder and manslaughter in England and Wales. The offence of murder carries with it a mandatory life sentence. In the same way as in England and Wales there are different kinds of manslaughter, in Scotland there are different kinds of culpable homicide. First, a conviction of culpable homicide may arise where the victim dies as a consequence of another criminal act, normally an assault. Second, the victim may die as a result of reckless actions of the accused. Finally, the accused may fulfil the other requirements of the offence of murder but have a partial defence. A charge of murder may be 'reduced' to a conviction of culpable homicide through the use of a partial defence [17, pp. 187-188].
2.1. Scottish Sentencing Council
Life sentences must be given for murder under the law, but they can also be given for other extremely serious offences such as repeated rape. If a person is sentenced to life imprisonment, the judge must, by law, set a punishment part of the sentence. This is the minimum time the person must spend in prison before they can be considered for release into the community by the Parole Board for Scotland. Depending on the circumstances of the case, the punishment part can be lengthy. If a person sentenced to life imprisonment is released into the community, they will be on licence for the rest of their life and can be recalled to prison if they breach the terms of their licence3.
A new sentencing guideline developed by the Scottish Sentencing Council came into effect on January 26, 2022. The sentencing young people guideline applies to the sentencing of those who are under the age of 25 at the date of their plea of guilty or when a finding of guilt is made against them. It was developed over an inten-
3 Prison sentences. Available at: https://www.scottishsenten-cingcouncil.org.uk/about-sentencing/prison-sentences#:~: text=Life%20sentences%20must%20be%20given,punishme nt%20part%20of%20the%20sentence.
sive period of stakeholder engagement and research, culminating in a full public consultation in 2020 and its approval by the High Court on November 9, 2021.
Reflecting compelling scientific evidence on the development of cognitive maturity, the guideline says that a young person will generally have a lower level of maturity, and a greater capacity for change and rehabilitation, than an older person. For this reason, it states that rehabilitation should be a primary consideration when sentencing a young person.
The Council considers that this will help to achieve one of the guideline's key aims: to reduce reoffending among young people, and thereby help to increase public safety. The guideline says that a court should ensure that it has sufficient information to assess the maturity of the young person and to identify and impose the most appropriate sentence. This includes information about factors common to many young people who commit offences, such as addiction, trauma, and adverse childhood experiences1.
Para.15 of the 2022 Sentencing guideline (chapter 'Identifying the most appropriate sentence - Information and advice') states that 'The court should ensure that it has sufficient information to assess the maturity of the young person and to identify and impose the most appropriate sentence. This may include, for example, information and reports about': addiction; physical and mental health; speech, language, and communication needs; trauma; adverse childhood experiences; the living environment, including whether the young person is or has been in care; whether any proposed sentence is likely to be effectively implemented; and what steps can be taken to increase the likelihood of effective implementation.
According to para. 16, 'Where a court is required by law to refer a case to a children's hearing to obtain its advice as to the treatment of the young person, it must do so. Where the court is entitled, but not required by law, to refer a case to a children's hearing, it must consider whether to do so'. According to the rules provided in the subchapter 'Selecting an appropriate sentence' (namely, paras. 20-22), the full range of sentencing options remains open to the court. However, the nature and duration of a sentence imposed on a young person should be different from that which might be imposed on an older person being sentenced for the same, or a similar, offence. A custodial sentence should only be imposed on a young person when the court is satisfied that no other sentence is appropriate. If a custodial sentence is imposed on a young person, it should be shorter
1 Sentencing young people guideline comes into effect. Available at: https://www.scottishsentencingcouncil.org.uk/ news-and-media/news/sentencing-young-people-guideline-comes-into-effect.
than that which would have been imposed on an older person for the same, or a similar, offence. The court should consider remitting a case to a children's hearing for disposal where it is competent to do so2.
2.2. Juvenile justice system
There has been a notable development of policies to divert offenders from prosecution from the 1960s onwards. Most important among these was the establishment of a unique system of juvenile justice, the Children's Hearing System, which diverts young offenders from the courts except in the case of very serious offences, such as robbery, rape, or murder. This system, which has been described as 'a radical institution', seeks to act in the best interests of the young person, and deals with young offenders by means of compulsory measures of care rather than penal sanctions. Arising out of the recommendations of the Kilbrandon Committee, which reported in 1964, and established by the Social Work (Scotland) Act of 19 683, the Children's Hearing System came into operation in 1971[15, p. 45].
The Social Work (Scotland) Act 1968 abolished the existing juvenile courts and established a new institutional framework for juvenile justice, the Children's Hearings System. These changes were driven by the 'Kilbrandon philosophy'. According to this philosophy, juvenile offending and other troublesome behaviours should be regarded as manifestations of deeper social and psychological malaise and/or failures in the normal upbringing process (the Kilbrandon report 1964). The overall aim of the new juvenile justice system (implemented in 1971) was to deal with the child's needs (whether referred on offence or care and protection grounds), with the best interests of the child to be paramount in decision-making. At the outset, the Crown reserved the right to prosecute children who had committed the most serious offences (such as rape, serious assault, or homicide) in the criminal courts .
The dominance of welfarism lasted until around the mid-1990s. Early signs of change were evident as far back as the arrangements for secure accommodation introduced by the Health and Social Services and Social Security Adjudications Act 1983 . As a result of this Act, the hearings were enabled to require a child to reside in secure accommodation. The penetration of public interest discourse into the hearings system was, however, more explicitly marked by a number of
2 Sentencing young people - Sentencing guideline. Available at: https://www.scottishsentencingcouncil.org.uk/media/4d 3piwmw/sentencing-young-people-guideline-for-publica-tion.pdf.
3 1968 c. 49.
4 The Kilbrandon Report. Available at: https://www.gov.scot/ publications/kilbrandon-report/pages/3/.
5 Health and Social Services and Social Security Adjudications Act 1983 (c. 41).
changes introduced by the Children (Scotland) Act 19951. This Act enabled the hearings system to place the principle of public protection above that of the child's best interests in cases where the child presented a significant risk to the public. It also empowered Sheriffs to substitute their own decision for that of the panel in disputed (and appealed) cases [11, pp. 83-84, 87].
Of particular note are the provisions relating to the prosecution of children in the Criminal Justice and Licensing Act 2010. Importantly, the Act prohibits prosecution of a child under the age of 12 in the courts, but it does not explicitly raise the age of criminal responsibility. Thus, a child will continue to be held criminally responsible from the age of 8 but all such cases will be dealt with by the Children's Hearings System2. At 8, Scotland's age of criminal responsibility was the lowest in Europe, but it was raised to 12. Section 41 of the Criminal Procedure (Scotland) Act 19953 (Age of criminal responsibility) was substituted by the Age of Criminal Responsibility (Scotland) Act 20194.
A child under the age of 12 cannot be arrested, charged, prosecuted for a crime or get a criminal conviction. If the behaviour of a child under 12 has been harmful, they will not go to a criminal court. Instead, their case may go to the Children's Hearing System, which will focus on the child's behaviour and circumstances. Children aged 12 to 16 can go to court but only for serious crimes. For most offences they will get an early intervention, such as: 1) a warning; 2) help from a support organization; 3) going to a children's hearing5.
Conclusion
School shootings remain a highly relevant topic for analysis, because the social environment and interpersonal relationships play a leading role in the formation of aggressive intentions of perpetrators. English law distinguishes between the offences of murder and manslaughter. There are two alternative fault requirements for murder: an intent to kill or an intent to cause grievous bodily harm. The UK Parliament has decided that judges must give a life sentence to all offenders found guilty of murder. The judge will set a minimum term an offender must serve before they can be considered for release by the Parole Board. The minimum term for murder is based on the starting points set out in Schedule 21 of the Sen-
1 Children (Scotland) Act 1995 (c. 36).
2 Criminal Justice and Licensing (Scotland) Act 2010. Available at: https://www.legislation.gov.uk/asp/2010/13/contents.
3 Criminal Procedure (Scotland) Act 1995 (c. 46).
4 Age of Criminal Responsibility (Scotland) Act 2019. Available at: https://www.legislation.gov.uk/asp/2019/7/section/1/enacted.
5 Young people and the law. Available at: https://www.my-
gov.scot/young-people-police.
tencing Act 2020. The schedule sets out examples of the different types of cases and the starting point that would usually be applied. For the murder of two or more persons, an offender may be sentenced to a life sentence with a 'whole life order.' This means that his crime was so serious that he will never be released from prison.
The Firearms (Amendment) Act 1997 was introduced in the United Kingdom in response to the Dunblane school massacre and the recommendations of the Cullen Report that followed it. It effectively banned the private possession of all handguns other than those chambered for .22 rimfire cartridges in Great Britain (not Northern Ireland) by making them subject to Section 5 (Prohibited Weapons) of the Firearms Acts. The Firearms (Amendment) (No. 2) Act 19976 extended the class of prohibited weapons under the Firearms Act 19687 to include all small-calibre pistols but it does not extend to Northern Ireland, where firearms regulations differ.
Structurally, the Scots law of homicide resembles the law of England and Wales. The offences of murder and culpable homicide in Scotland closely resemble the offences of murder and manslaughter in England and Wales. Life sentences must be given for murder under the law, but they can also be given for other extremely serious offences such as repeated rape. If a person is sentenced to life imprisonment, the judge must, by law, set a punishment part of the sentence. This is the minimum time the person must spend in prison before they can be considered for release into the community by the Parole Board for Scotland. If a person sentenced to life imprisonment is released into the community, they will be on licence for the rest of their life and can be recalled to prison if they breach the terms of their licence.
The Children's Hearings System, an institutional framework for juvenile justice developed in Scotland, abolished the existing juvenile courts, except in cases of the most serious offences. The Scots Children's Hearing System seeks to act in the best interests of the young person and deals with young offenders by means of measures of care rather than sanctions. The age of criminal responsibility in Scotland is 12 years old. If the behaviour of a child under 12 has been harmful, his case may go to a children's hearing, which will focus on the child's behaviour and circumstances. The overall aim of the juvenile justice system is to deal with the child's needs (whether referred on offence or care and protection grounds), with the best interests of the child to be paramount in decision-making.
6 Firearms (Amendment) (No. 2) Act 1997 (c. 64).
7 Firearms Act 1968 (c. 27).
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Информация об авторе:
В. Славкович
Доктор права, профессор кафедры уголовного права,
уголовного процесса и криминалистики
Колледж криминалистики и безопасности
18000, Сербия, г. Ниш, Булевар Светог цара Константина,
80-84
ORCID: 0000-0002-0151-464X
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11. McAra L., McVie S. Youth Crime and Justice in Scotland. Criminal Justice in Scotland. Ed. by H. Croall, G. Mooney, M. Munro. London: Willan Publishing, 2010. Pp. 67-89. (In Eng.).
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About the author:
V. Slavkovic
PhD in Law, Professor in the Department of Criminal Law, Criminal Procedure and Criminalistics College of Criminalistics and Security 80-84, Bulevar Svetog cara Konstantina, Nis, 18000, Serbia
ORCID: 0000-0002-0151-464X
Статьи в БД «Scopus»/«Web of Science»: Articles in Scopus / Web of Science:
DOI: 10.21638/spbu14.2022.312 DOI: 10.21638/spbu14.2022.312
DOI: 10.5937/pravzap0-21123 DOI: 10.5937/pravzap0-21123
