Author: Alex Robertson
Defences and how they should be structured in terms of attributing criminal responsibility have been a topic of much discussion in Scots law. A particularly controversial element of the law surrounding defences is how they operate in terms of “battered women” who kill. There has been extensive commentary and a general feminist argument that the law fails to provide adequate defences for women charged with the murder of an abusive partner. Much of Scots criminal law is based on common law and the works of institutional writers such Hume. They considered the law at a time in society where women were almost viewed as inferior to men. Furthermore, the fact that homicide crimes are predominantly committed by men has possibly led to the law being construed with regard to male definitions and behavioural practices. In particular, it has been argued the complete defence of self-defence and the partial defence of provocation fail to take into consideration female responses to violence. There is a general view in society that males respond in the “heat of the moment” towards violence, whereas females, generally speaking, are more likely to accept abuse, allow it to build up and respond at a later stage. Although different in substance and effect, provocation and self-defence are often pleaded together and the current requirements of a spontaneous type response often make it difficult for battered women who kill to benefit from them. Consequently, this has led such women to commonly plead diminished responsibility when charged with murder. However, this is also problematic and arguably stigmatises the female accused as being “abnormal” when perhaps her response is reasonable in the circumstances.
This article seeks to critically analyse the law in relation to defences for battered women who kill their abusers. It will examine the adequacy of the law in relation to provocation, self-defence and diminished responsibility. In addition, the discussion will consider whether there is merit in broadening the scope of provocation and self-defence. This is a two-fold argument. On the one hand, it is vital that the law is seen to promote fairness and equality in relation to gender issues. However, broadening the scope of any defence comes with its own public related risks and the law cannot be seen to promote a licence to kill. It is vital that a balance is struck between the two.
B. Provocation and self-defence: a man’s world?
- Provocation: a sexist dimension
It has been suggested that provocation has a sexist dimension in that it is a more suitable defence for “angry males” than abused women. Provocation itself is controversial and arguably “privileges homicidal fury”. It is limited in scope and does not act as a complete defence that results in acquittal. Rather, it operates as a partial excuse and if successfully pleaded, the accused will be convicted of culpable homicide as opposed to murder. Scots law on provocation is complex. The current definition generally followed was given by Macdonald and is traditionally based on the law’s acceptance that “human frailty” may, in certain circumstances, cause the accused to lose control when provoked. The view is that a person who kills in this state, whilst not justified, is seen to be less “blameworthy” than an individual who kills in cold blood.
For battered women, problems arise when considering the relationship between the provocation and their retaliation. To establish the defence there must be a loss of self-control which is brought about immediately by a recognised provocative act. The type of provoking acts acknowledged are limited in scope and Scots law states that only violence or a fear of imminent violence and sexual infidelity qualify as such. Furthermore, the response to the violence must be “reasonably proportionate”.
A loss of control and immediate response to the act are vital to the defence; any delay could suggest the accused’s response was pre-meditated revenge. This is problematic for battered women who kill. Firstly, a loss of self-control carries with it connotations of uncontrollable anger, which is predominantly present in males who kill. Female violence is usually in response to fear and despair as opposed to fury. Women rarely respond to abuse in a way that could be categorised as “out of control”. Secondly, as briefly mentioned above, women do not tend to respond to violence with any form of immediacy. They commonly experience a “slow burn” of anger and respond to the provoking act at a later stage when there is a greater chance of success. Consequently, they often kill where the victim is either asleep or incapacitated by way of alcohol. Therefore, the provocative act the ‘battered woman’ is subject to is more “cumulative” in nature, taking place over a long period of time; she is often subject to violence from her partner over a number of years and eventually “snaps” and kills him. In fact, the killings may even appear to be calculated which is in direct contradiction to the essence of the provocation defence. The current need for an immediate response appears to favour males whose response to provocation is normally with immediate violence and excludes the possibility of cumulative provocation. Moreover, there is the added difficulty of the relationship between the provocation and the retaliation. To plead provocation successfully, the accused’s response must be seen as “reasonably proportionate”. In Gillon v HM Advocate Lord Justice-Clerk Ross stated:
“…there must be some equivalence between the retaliation and the provocation so that the violence used is not grossly disproportionate to the evidence constituting the provocation.
When looked at objectively it is difficult to conclude the battered accused’s response was proportionate if it was not immediate. This makes it very difficult for battered women to successfully utilise the plea, even though they may have been technically provoked by years of domestic abuse.
This was demonstrated in the unreported case of HM Advocate v Greig where the accused was charged with killing her abusive husband when he was dozing in his chair. The accused put forward evidence claiming her husband had been violent towards her on a number of occasions and whilst in this instance the violence was not imminent, she acted out of a fear her husband would become violent. Lord Dunpark allowed the jury to consider provocation but was firmly of the opinion that the necessary grounds had not been established and the accused should be convicted of murder. However, the jury disagreed and returned a verdict of culpable homicide. The case is a classic example of the inadequacy of the defence for battered women in Scots law.
However, it is worth noting that, in practice, the Crown often accept pleas of culpable homicide where a battered accused has killed a violent partner before the matter is brought up in court. They generally show a level sympathy for women who kill in such circumstances but do not “fit” the legal requirements for provocation. Yet, this still remains problematic and has stopped the law from developing coherent principles in relation to such cases. This is a missed opportunity to address the problem and give greater clarity to this complex area of law. McDiarmid effectively points out that the purpose of the law is to ensure that its “mechanisms” for returning a verdict of culpable homicide as opposed to murder are both fair and reflective of the attitudes of society. It is highly debatable whether the provocation defence as currently formulated achieves this.
- Self Defence: a recurring theme
The above analysis on provocation suggests that, in most circumstances, it is difficult for battered women who kill to successfully plead the partial defence. The same could be argued for self-defence. Self-defence is similar to provocation but differs in the sense that the former relates specifically to the degree of violence used and the possibility of an escape route. Furthermore, a successful plea results in a full acquittal, and the criminal use of force used by the accused is often viewed as justifiable in the circumstances.
However, for public policy reasons, the rules on self-defence are understandably restricted and there are currently three essential requirements the accused must satisfy: (i) There must be imminent danger to life; (ii) there must be no means to escape or retreat; and (iii) the accused’s response must not be excessive. The standard underlying these requirements is an objective one of reasonableness.
Prima facie, these requirements appear to be gender neutral, however in practice, like the provocation defence, difficulties arise. The purpose of the imminent danger to life requirement is to deny the defence when there is an alternative course of action other than killing the abuser. When the threat is not immediate, there is an evidential problem in proving that harm would have occurred. This is problematic for battered women. As mentioned above, often women kill their abuser in non-confrontational situations. Furthermore, whilst it may appear that the accused could have retreated by leaving the abusive relationship, as was suggested in Greig, the reality is often very different. Quite often n domestic abuse relationships the victim will have children or be financially and emotionally dependent on their abuser. Accordingly, the woman feels trapped and concludes that leaving the relationship would do more harm than good. Additionally, the abuser often threatens further violence if their partner tries to leave. This leads the abused female to believe her only means of escape is to kill when her abuser is incapacitated. Whilst it may not appear her life is in danger; the actions arguably stem from fear that an attack could be imminent, and the woman may reasonably believe she has acted in self-defence. There is merit in this argument and perhaps the root of the problem is the fact that the law on self-defence has developed form cases predominantly involving males. As McColgan states:
“The relative scarcity of female killers has resulted in a paradigmatically male ideal model and… the apparently gender-neutral concept of reasonableness is weighted against the female defendant.”
Arguably, this has caused the objective standards of proportionality and reasonableness to be construed to male behaviour. Female responses to violence are rarely taken into consideration.
- A case for change?
That said, it is arguable there is a case for amending the scope of these defences. With regard to self-defence, it has been recognised in other jurisdictions that in certain circumstances its rules could be widened to allow battered women greater access to the defence. In the Canadian case of Lavelle v R it was accepted that despite not appearing to be in imminent life threatening danger, the nature of certain abusive relationships meant that it may be possible for the battered spouse to accurately predict an attack before the blow is struck. Despite this, it is perhaps inappropriate from a legal standpoint to justify altering the requirements of self-defence. Whilst we should be sympathetic towards victims of domestic abuse and are inclined to condemn the abuser, it is hard to justify an acquittal through self-defence when there is no imminent threat to life. There are solid policy reasons for having strict objective criteria in place and any “loosening” could allow for the floodgates to open.
In terms of provocation, removing the immediacy of response requirement has been suggested but as Iona Cairns highlights, if this was done generally then it would also allow men who kill greater access to provocation under a broader range of circumstances and has been problematic in other jurisdictions. McDiarmid suggests the law should consider a more “bespoke defence” which accepts that the accused’s loss of control may not always stem from an immediate act of violence. This would allow the offence to be scrutinised with regards to the history of the accused’s relationship with the victim. It is arguable this would afford battered women a more appropriate defence to murder that adequately reflects their circumstances. Whether or not any change takes place is another matter, but one certainty remains; the continuing requirements for immediacy of response and imminent danger to life renders provocation and self-defence unsatisfactory for the majority battered woman who kill.
C. Diminished Responsibility: defence by default?
When charged with the murder of an abusive partner, the most successful defence for battered women is diminished responsibility. However, Kenny argues that this acts as a “default defence” due to the failure to satisfy the “masculinised” requirements of provocation and self-defence. The current Scottish law concerning diminished responsibility is found under Section 51B of the Criminal Procedure (Scotland) Act 1995, which echoes the common law principles established in Galbraith v HM Advocate. It operates as a partial defence to murder only and, if successful, mitigates a charge of murder to culpable homicide. The accused may plead diminished responsibility if his:
“…ability to determine or control conduct for which he would otherwise be convicted of murder was, at the time of the conduct, substantially impaired by reason of abnormality of mind”
The plea is based on the notion that, at the time of the killing, the accused suffered from an abnormality of the mind deemed serious enough to diminish the quality of the crime but not to the extent as to completely excuse the accused of criminal culpability. Originally, under the common law, diminished responsibility required a form of “mental disease” or state of mind “bordering on though not amounting to insanity” on the part of the accused to operate. However, in Galbraith the definition of diminished responsibility was broadened. The focus is now primarily on the effect the abnormality of mind had on the accused’s ability to control his or her conduct. Therefore, the ruling moved away from the notion that an abnormality of mind required a form of mental disease and concluded that other psychological factors could form a basis for the defence. Inter alia, this included an acceptance that in principle, an abnormality could be caused by “sexual or other abuse” inflicted on the accused provided it resulted in some recognised mental abnormality.
In Galbraith it was found that years of abuse caused the accused to fall into a state of depression and suffer an abnormality of the mind. Consequently, it is now common practice for abused women to plead the defence based on a form of PTSD often referred to as “Battered Woman’s Syndrome” (BWS). This relates to women, who on at least two occasions, have been the victim of serious abuse by a man with whom they have had an intimate relationship. The constant abuse causes them to fall into a state of “learned helplessness” where they become passive and lose their motivation to respond. Eventually they believe their only means of escape is to kill their abuser. Although BWS was not mentioned in Galbraith and has never been discussed in a Scottish case, it has been argued the Galbraith ruling “opened the door” to a defence based on BWS.
Whilst prima facie this has resulted in giving battered women a chance of pleading a successful defence to murder, the reality is much different. To have a charge of culpable homicide reduced to murder the accused must establish she suffered from an abnormality of the mind. This arguably creates a stigma against women and almost medicalises them. As O’Donovan points out, if we allow a plea of diminished responsibility based on BWS “we risk transforming the reality of this form of gender oppression into a psychiatric disorder”. The focus shifts from the abusive behaviour of the male as the reason for the killing and the case becomes about the female’s instability of mind. This has also been criticised in England, particularly in the case of R v Ahluwalia. The case was a classic example of the failure of the provocation defence which left the battered accused no option but to plead culpable homicide (manslaughter in England) through diminished responsibility. Sanghvi and Nicolson effectively encapsulate the problem stating:
“(unless women) accept a label of psychological abnormality, they run the risk of escaping the prison of domestic violence only to spend a long time in a less metaphorical prison.”
Consequently, the female accused is given no opportunity to have her actions viewed as justified or excused as the law automatically categorises her as being mentally abnormal. The current inadequacies of the self-defence and provocation defences have arguably “pigeon holed” battered women into pleading diminished responsibility even when they may reasonably believe they have been provoked or are acting in self-defence. Whilst it may be the most successful defence for battered women, the fact the law views them as “abnormal” is stigmatising to say the least.
D. Final Word
Interestingly, at the time of writing, the Scottish Law Commission has announced its intention to develop proposals for modernising the law with regards to homicide and plans to examine the nature, scope and definition of the three homicide related defences. The fact they envisage they will issue a series of discussion papers arguably demonstrates just how contentious an area of criminal law this is. Whilst it is speculative to suggest with any certainty the law will be amended to allow greater access to defences for battered accused, the fact that the Law Commission has considered the issue in the past would suggest it is likely they will give the matter serious consideration.
Despite these developments, this brief critique of the law has highlighted that both provocation and self-defence as currently formulated in Scots Law are still based upon perceptions of male behaviour. Furthermore, the stigma associated with diminished responsibility renders it an almost degrading defence for battered women to plead. It may allow for domestic abuse sufferers to avoid a life sentence, but its status as a failsafe due to the inadequacies of provocation and self-defence makes it unsatisfactory. This has led to a situation where abused women are arguably “battered by men, only to be bruised by the law”. The fact that in practice battered women who kill are often only found guilty of culpable homicide as opposed to murder is almost irrelevant. The law must find a way of accommodating female responses to violence and develop coherent legal principles accordingly. In 1998, Lindsay Farmer effectively encapsulated the problem from a wider perspective and as has been argued throughout this essay, the same problems are apparent today. He points out that many difficulties or inconsistencies the courts face are often deferred to the sentencing stage in order to maintain the “theoretical purity of the law”. Other jurisdictions such as America, Australia and Canada have all made attempts at addressing the issue. Perhaps it is time Scotland followed suit.
Ultimately, hard cases can make bad law and it is a precarious position taken in law if it allows its sympathy for the accused to justify or excuse the taking of human life. Yet, the law must find the most effective way of balancing the rights of the accused and the public interest in ensuring that justice is seen to be done. In our legal system and as a society it is crucial we have equality to ensure justice and fairness. As such, reform in this area of Scots criminal law is long overdue.
Table of Cases
Connelly v HM Advocate, 1991, SLT
Drury v HM Advocate, 2001 SLT 1013 Galbraith v HM Advocate, 2002, JC 1
Gillon v HM Advocate, 2006, HCJAC
HM Advocate v Doherty, 1954, JC 1
HM Advocate v Greig, 1979, Unreported, High Court HM Advocate v Savage, 1923 JC 49
Low v HM Advocate, 1994 SLT 227 Martindale v HM Advocate, 1994 SLT 1093 Owens v HM Advocate, 1946 JC 60 Thomson v HM Advocate, 1986, SLT, 281 English Cases
R v Ahluwalia, 1992, 4 All ER 889 Canadian Cases
Lavelle v R, 1990, 76 CR 3d 329
The Criminal Procedure (Scotland) Act 1995, Section 51 B
Chalmers J and Leverick F, Criminal Defences and Pleas in Bar of Trial, First Edition, W Green, Edinburgh, 2006
Horder J, Provocation and Responsibility, First Edition, Clarendon Press, 1992
Hume D, Commentaries on the Law of Scotland Respecting Crimes, Vol I, Fourth Edition, 1884
Farmer L, Criminal Law, Tradition and Legal order: Crime and the Genius of Scots Law, 1747 to the present Cambridge University press, 1998
Ferguson P and McDiarmid C, Scots Criminal Law: A Critical Analysis, Second Edition, Edinburgh University Press, Edinburgh, 2014
Gane C, Stoddart C and Chalmers J, A Casebook on Scottish Criminal Law, Fourth Edition, W Green, Edinburgh, 2009
Gordon G and Christie M, The Criminal Law of Scotland, Third Edition, W Green, Edinburgh, 2001
Jones T and Christie M, Criminal Law, Sixth Edition, W Green, Edinburgh, 2015
Leverick F, Killing in Self-Defence, First Edition, Oxford University Press, Oxford, 2006
Macdonald J, A Practical Treatise on the Criminal Law of Scotland, Fifth Edition, 1948
Raitt F and Zeedyk S, The Implicit Relation of Psychology and Law, First Edition, Routledge, London, 2000
Walker L, The Battered Woman, First Edition, William Morrow Paperbacks, 1979
Contributions to Edited Books
Douglas H, ‘The Demise of the Provocation Defence and the Failure of the Equality Concepts’ in Hunter, Rethinking Equality Practices in Law: Feminist Challenges, Hart Publishing, 2008
McDiarmid C, Don’t Look Back in Anger: the Partial Defence of Provocation in Scots Criminal Law, in Chalmers J, Leverick F and Farmer L, Essays in Criminal Law in Honour of Sir Gerald Gordon, Edinburgh University Press, Edinburgh, 2010
Bender L, ‘From Gender Difference to Feminist Solidarity: Using Carol Gilligan and an Ethic of Care’ (1990) 1 Vermont Law Review 15
Cairns I, ‘“Feminising” Provocation in Scotland: the Expansion Dilemma’ (2014) 4 Juridical Review 237
Casey J, ‘Legal Defences and Expert Testimony on the Battered Woman Syndrome: a Focus on Self Defence’ (2003) 31 Scots Law Times
Clarkson C, ‘Necessary Action: a New Defence’, (2004) Criminal Law Review
Connelly C, ‘Women who Kill Violent Men’ (1996) Juridical Review
Edwards S, ‘Abolishing Provocation and Reframing Self-Defence: the Law Commissions Options for Reform’ (2004) Criminal Law Review
Horder J, ‘Reshaping the Subjective Element in the Provocation Defence’ (2005) 25 Oxford Journal of Legal Studies
Howe A, ‘Provocation in Crisis- Law’s Passion at the Crossroads?’ (2004) Australian Feminist Law Journal
Kenny E, ‘Battered Women and the Fight Against Patriarchy’ (2007) UCL Jurisprudence Review
McColgan A, ‘In Defence of Battered Women who Kill’ (1993) 13 Oxford Journal of Legal Studies
Nicholson D, ‘Telling Tales: Gender Discrimination, Gender Construction and Battered Women who Kill’, (1995) 3 Feminist Legal Studies 2
Sanghvi R and Nicholson D, ‘Battered women and Provocation: the Implications of R v Ahluwalia’ (1993) Criminal Law Review
O’ Donovan K, ‘Defences for Battered Women who Kill’ (1991) Journal of Law and Society
Tadros V, ‘The Structure of Defences in Scots Criminal Law’ (2003) 7 Edinburgh Law Review
Command Papers and Law Commission Reports
Chalmers J, Gane C and Leverick F, ‘Partial Defences to Homicide in the Law of Scotland: a report to the Law Commission for England and Wales in Law Commission’, Partial Defences to Murder, Law Com No 173, Appendices, 2003
Scottish Law Commission, Tenth Programme of Law Reform, Scot Law Com No 250, 2018
Scottish Law Commission, Seventh Programme of Reform, Scot Law Com No 198, 2004
Scottish Government, Homicide in Scotland 2016/17: Statistics, <https://beta.gov.scot/publications/homicidescotland-2016-17-9781788512367> last accessed 20/02/2018
 V Tadros, The Structure of Defences in Scots Criminal Law (2003) 7 Edin L.R. p. 60.
 This term is reluctantly used throughout to describe a situation where women have been subjected to abuse from their male partners.
 For example see P Ferguson and C McDiarmid, Scots Criminal Law: A critical Analysis, (2nd Edition, Edinburgh University Press, 2014) p. 25.
 See, for example A Howe, Provocation in Crisis- Law’s Passion at the Crossroads? New Directions for Feminist Strategies (2004) Australian Feminist Law Journal p. 53.
 Ferguson and McDiarmid (n2) citing L Bender, From Gender Difference to Feminist Solidarity: Using Carol Gilligan and an Ethic of Care (1990) Vermont Law Review.
 This is still the case today, in 2016/17, 77 persons were accused of homicide and 88% were male. See Scottish Government, ‘Homicide in Scotland 2016/17: Statistics’ <https://beta.gov.scot/publications/homicide-scotland-2016-17-9781788512367/> accessed 20/02/2018.
 K O’ Donovan, Defences for Battered Woman who Kill, (1991) Journal of Law and Society p. 219.
 ibid.; C.M.V Clarkson, Necessary action: a new defence, (2004) Crim. L.R. p. 94.
 Iona Cairns, Feminising Provocation in Scotland: The Expansion Dilemma, (2014) 4 Jur. Rev 237-261; E Kenny, Battered Woman Who Kill: The Fight Against Patriarchy, (2007) 13 UCL Juris. Rev. 17-36.
 Ferguson and McDiarmid (n3) p. 585.
 T Jones and M Christie, Criminal Law (6th Edition, W. Green, 2015) p. 160.
 F Raitt and S Zeedyk, The Implicit Relation of Psychology and Law (1st Edition, London: Routledge, 2000).
 S Edwards, Abolishing provocation and reframing self-defence – the Law Commission’s options for reform, (2004) Crim. L. R. p.181-197.
Raitt and Zeedyk (n12) p. 69.
 Ferguson and McDiarmid (n3) p. 584; and Adrian Howe (n4).
 See, for example Edwards (n13) p. 198; J Horder, Provocation and Responsibility (Clarendon Press, 1992) who argue that provocation should be abolished and should only be considered in mitigation of sentence.
 C McDiarmid, ‘Don’t Look Back in Anger: The Partial Defence of Provocation in Scots Criminal Law’ in The Edinburgh Law Review Trust and the Contributors, Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh University Press, 2010) .
 Ferguson and McDiarmid (n3) p. 571; Drury v HM Advocate, 2001, S.L.T 1013; McDermott v HM Advocate, 1973 J.C. 8.
 See for example the procedural problems in Drury v HM Advocate, 2001, S.L.T 1013.
 “The defence of provocation is of this sort- Being agitated and excited and alarmed by violence, I lost control over myself, and took life when my presence of mind had left me, and without thought of what I was doing”, Macdonald, Criminal Law, (5th Edition, W. Green, 1948) p. 94.
 Hume, Commentaries, I, 249.
 Ferguson and McDiarmid (n3) p. 571; Jones and Christie (n11) p. 226.
 Hume, Commentaries, I, 240-242; Jones and Christie (n11) p. 160.
 C Gane, C Stoddart and J Chalmers, A Casebook on Scottish Criminal Law, (4th Edition, W. Green, 2009) 447; Jones and Christie (n11) p. 443-444.
 Ferguson and McDiarmid (n3) p. 571-572; Gillon v HM Advocate  HCJAC 61; 2006 S.L.T para. 39.
 Sexual infidelity as a provoking act has also been criticised as carrying a sexist dimension but will not be discussed here. See for example, McDiarmid (n3) p. 203-210.
 Ibid p. 573.
 Low v HM Advocate, 1994 S.L.T 227.
 Hume, Commentaries, I, 239. (Provocation requires): “… a sudden impulse of resentment… suffered on the spot”. See also Macdonald (n20) p. 94.
 ibid, at p.239.
 Cairns (n9) p. 5.
 Males are generally physically stronger than females and are therefore unlikely to immediately retaliate with fatal force. See for example, Jeremy Horder, Reshaping the Subjective Element in the Provocation Defence, (2005) 25 Oxford Journal of Legal Studies p. 128; Aileen McColgan, In Defence of Battered Woman who Kill (1993) 13 Oxford Journal of Legal Studies p. 508.
 HM Advocate v Greig (1979) unreported, High Court.
 Jones and Christie (n11) p. 227-228; Gane, Stoddart and Chalmers (n24) p. 444.
 Horder (1992) (n16) p. 190.
 Thomson v HM Advocate (1986) S.L.T. 281; See also G Gordon, The Criminal Law of Scotland (3rd Edition, edited by M Christie, W. Green, Vol II: 2001) p. 335.
 See Gane, Stoddart and Chalmers (n24) at p. 444; Ferguson and McDiarmid (n3) p. 577.
 2007 JC 24.
 Ibid at 286 per LJC Ross
 Cairns (n9) p.5.
 (1979) unreported, High Court.
 Gane, Stoddart and Chalmers (n 24) p. 444.
 Greig (n39) per Lord Dunpark: “If you can find some evidence, which I frankly cannot, that the accused was provoked… you could return a verdict of culpable homicide…”.
 ibid. p. 444.
 J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (1st Edition, W.Green, 2006) p. 210; See also cases cited by Chalmers, Gane and Leverick, ‘Partial Defences to Homicide in the Law of Scotland: a report to the Law Commission for England and Wales’ in Law Commission, Partial Defences to Murder (Law Com No 173 (Appendices) 2003) paras 1.81- 3.0.
 Jones and Christie (n11) p. 228; C Connelly, Woman who Kill Violent Men (1996) J.R. 215; Ibid p. 444.
 McDiarmid (2010) (n17) p. 215.
 ibid. p.196.
 Ferguson and McDiarmid (n3) p. 559.
 Jones and Christie (n11) p. 154.
 HM Advocate v Doherty (1954) J.C. 1 per Lord Keith at paras 4-5.
 ibid; Hume, Commentaries, I, 224; Owens v HM Advocate (1946) J.C. 60. Per Lord Jamieson at para 62.
 Macdonald (n20) p. 106.
 Juliette Casey, Legal Defences and Expert Testimony on the Battered Woman Syndrome: A Focus on Self Defence, (2003) 31 S.L.T p. 247.
 Kenny (n9) p. 30.
 Hume, Commentaries, I, 224; Fiona Leverick, Killing in Self-Defence (1st Edition, Oxford University Press, 2006) p. 87.
 ibid. p. 89.
 Greig (n34).
 See O’ Donovan (n7) p. 235.
 L Walker, The Battered Woman (1st Edition, William Morrow Paperbacks, 1979) Discussed further below in relation to diminished responsibility.
 McColgan (n33) p. 515
 Lavelle v R (1990) 76 CR (3d) 329 (SCC).
 ibid. per Madam Justice Wilson at para 351.
 This is a point that Jones and Christie (n11) also note at p. 161: “(if the women failed to satisfy the imminence requirement) as a matter of legal principle it would be difficult to justify such a killing”.
 The Australian courts refined the requirements for provocation generally in response to criticisms about the gendered nature but this worked in favour of men who killed out of emotions such as jealousy. See Cairns (n9) p.7 at footnote 83 citing H Douglas, ‘The Demise of the Provocation Defence and the Failure of the Equality Concepts’ in Hunter, Rethinking Equality Practices in Law: Feminist Challenges (Hart Publishing, 2008).
 McDiarmid (n17) p. 215.
 Ferguson and McDiarmid (n3) p. 585.
 Ferguson and McDiarmid (n3) p. 529.
 Kenny (n9) p.5.
 Galbraith v HM Advocate, 2002 J.C 1.
 The burden of proof rests on the accused who must do so on the balance of probabilities. Criminal Procedure (Scotland) Act s 51B (4).
 Criminal Procedure (Scotland) Act 1995 s 51B (1).
 Gane, Stoddart and Chalmers (n24) 447 at para 10-41; see also Galbraith (n69) opinion of the court 18 A at para. 45.
 HM Advocate v Savage (1923) J.C. 49; See also Connelly v HM Advocate, 1991 S.L.T; Martindale v HM Advocate, 1994 S.L.T. 1093.
 Ferguson and McDiarmid (n3) p. 525; J Chalmers and F Leverick, Criminal Defences and Pleas in Bar of Trial (1st Edition, W. Green, 2006) p. 228.
 Galbraith (n 69) at para 52.
 ibid. para 53.
 Walker (n58) p. 49.
 Ferguson and McDiarmid (n3) p. 529.
 O’ Donovan (n7) p. 231.
  96 Cr App R 133.
 Rohit Sanghvi and Donald Nicholson, Battered Women and Provocation: the Implications of R. v Ahluwalia (1993) Crim. L.R p. 737.
 Kenny (n9) p. 36.
 See, Scottish Law Commission, Tenth Programme of Law Reform (Scot Law Com No 250, 2018) paras 2.17- 2.24. Available at: <https://www.scotlawcom.gov.uk/news/scottish-law-commission-launches-tenth-programme-of-law-reform/> accessed 23/02/2018.
 See, Scottish Law Commission, Seventh Programme for Reform (Scot Law Com No 198, 2004) at para 2. 48 in their discussion on provocation: “There is also the separate issue, not yet explored by the courts, whether the defence is available where the accused has been subject to a long course of provocative conduct, such as by way of domestic violence.”.
 D Nicolson, Telling Tales: Gender Discrimination, Gender Construction and Battered Woman who Kill (1995) 3 Feminist Legal Studies 2, p. 186.
 L Farmer, Criminal Law, Tradition and Legal order: Crime and the Genius of Scots Law, 1747 to the present (Cambridge University press, 1998) p. 9.
 This goes as far back as the 1990s. See Katherine O’Donovan (n7) p. 219.