7 Lord Osborne specifically describes this as a “criminal intent”: Transco, per Lord Osborne at 45.
8 Transco, per Lord Hamilton at 54.
9 It has sometimes been argued that negligence, being inadvertent, cannot amount to mens rea because it does not involve awareness of risk and is therefore not a state of mind. But that is to attach too much weight to a “question of nomenclature” and does not address the real question of whether negligence is an appropriate basis for criminal responsibility. See H L A Hart, “Negligence, mens rea and criminal responsibility”, in Punishment and Responsibility (1968), 136.
10 Transco, per Lord Hamilton at 55.
11 D Hume, Commentaries on the Law of Scotland, Respecting Crimes, 4th edn by B R Bell (1844), vol 1, 21.
12 J H A Macdonald, A Practical Treatise on the Criminal Law of Scotland, 5th edn by J Walker and D J Stevenson (1948), 1.
13 Macdonald, 11. It should be noted that the references by Lord Hamilton and this note to Macdonald's text are references to interpolations in Walker and Stevenson's fifth and final edition. Previous editions asserted that wicked intent would be presumed, and did not address the issue of mistaken belief in this way.
14 See Hume, 1, 73-75.
28 Legislating the Criminal Code: Involuntary Manslaughter (Law Com No 237, 1996).