Lilburn v. Her Majesty's Advocate [2011] ScotHC HCJAC_41 (26 April 2011)

Lilburn v. Her Majesty's Advocate [2011] ScotHC HCJAC_41 (26 April 2011)

The established practice in Scotland is that the legal burden of establishing diminished responsibility rests on the defence, to be proved on the balance of probabilities. This practice is sound, consistent with authority and Convention law, and is to be given statutory force. The analogy with provocation is not...

Source-derived case information.

Citation
[2011] ScotHC HCJAC_41
Parties
Appellant: David Lilburn; Respondent: Her Majesty's Advocate
Jurisdiction
Scotland
Judgment Date
26 April 2011
Procedural Posture
Criminal Appeal / Appeal Against Conviction (murder) on Ground of Diminished Responsibility
Outcome
appeal against conviction refused
Legal Topics
Diminished Responsibility, Burden of Proof, Murder, Culpable Homicide, Insanity, Provocation, European Convention on Human Rights
Criminal Law Diminished Responsibility Burden of Proof Murder Culpable Homicide Insanity Provocation European Convention on Human Rights

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Parties

David Lilburn

Appellant

Her Majesty's Advocate

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction (murder) on Ground of Diminished Responsibility

Legal Issues

  1. 1 What is the nature and incidence of the onus (burden of proof) when diminished responsibility is raised by the defence in a murder trial?

Ratio Decidendi

The established practice in Scotland is that the legal burden of establishing diminished responsibility rests on the defence, to be proved on the balance of probabilities. This practice is sound, consistent with authority and Convention law, and is to be given statutory force. The analogy with provocation is not apt, and there is a rational and proportionate basis for the distinction.

Court Disposition

appeal against conviction refused

Orders

  • Ground of appeal 1(b) rejected.
  • Appeal against conviction refused.