2.1 Data and methods

Several methodologies were employed as part of this research: analysis of quantitative data provided by the Scottish Courts and Tribunal Service (2019), analysis of unreported homicide cases occurring in Scotland between 2008 and 2019, and analysis of case judgments reported in legal journals.

Traditional searches of case judgments were undertaken for self-defence cases that involved female appellants. These searches identified seven appeal cases over the last thirty years related to cases in which women had pled self-defence at trial and been unsuccessful with this claim.Footnote ²

Obviously, appeal judgments account only for those matters that have been appealed following a trial. In all contexts, most criminal cases are not appealed and/or are resolved without a trial (being resolved instead by way of negotiation with the Crown). To counteract this limitation and to identify relevant cases, searches of the judiciary's published sentencing statements and newspaper reports were undertaken.Footnote ³ One hundred and one cases were identified in which a woman was initially accused of homicide (murder or culpable homicide) in Scotland between January 2008 and December 2019. These cases included all types of homicide. In thirty-one of the 111 cases (27.9 per cent), the deceased was the female accused's partner or ex-partner. In one of these thirty-one cases, the deceased partner was female – that is to say, it was a same-sex partner homicide. Reference to prior domestic abuse or previous fighting between the parties was made in twenty of the thirty partner homicides (66.7 per cent).Footnote ⁴ In one case both the female accused and the male deceased were accused of domestic abuse against one another.Footnote ⁵

2.2 Centralised data on self-defence

Under Scottish criminal procedure, self-defence is considered a ‘special defence’, meaning that advance notice must be given that it will be led.Footnote ⁶ The significance of special defences in Scots law has been lessened somewhat by the introduction of ‘defence statements’ whereby the nature of any defence position must be provided to the Crown in advance of trial.Footnote ⁷ Regardless, it remains a procedural obligation to provide advance notice of self-defence meaning that, in theory, there exists a formal record of how often it is lodged.

Working under this assumption, this author submitted freedom of information (FOI) request to the Scottish Courts and Tribunal Service (SCTS) in March 2019. The request was: how many applications had been lodged to lead special defences over the last ten years by breakdown of the defence and the gender of the accused. The SCTS are clear in advising that the operational case management system that they employ is not for research purposes and is structured around their own operational needs. Their results distinguished between summary (a complaint brought before a sheriff) and solemn matters (more serious matters such as homicides, which involve an indictment and a jury).Footnote ⁸ Their records showed that in summary matters, 4,905 pleas were made in total between 2009–2010 and 2018–2019. Of these, 2,912 were specifically self-defence pleas (59.4 per cent). Of the self-defence pleas lodged, 716 came from female accused (24.6 per cent) and 2,196 from male accused (75.4 per cent).

For solemn matters, the same methodology could not be applied and so the search was for a specific special defence type (Table 1).Footnote ⁹ In April 2019, a follow-up request was made by this author to the SCTS for the data on special defences to be further categorised by charge category. The SCTS reported that between 23 August 2017 and 31 March 2018, a total of 776 special defences were lodged and in the more recent period of 2018/2019, 1,399 were lodged. Those pertaining to self-defence specifically are shown in Table 2.

Table 1. Number of hearings in which a special defence has been recorded in all solemn criminal cases

Table 2. Number of charges in which a self-defence has been recorded in all solemn criminal hearings at Scottish courts, broken down by charge category^a

^a It is unclear how self-defence could be lodged in proceedings that involved crimes other than those pertaining to violence, but this was reported for both summary and solemn matters by the SCTS as shown in Table 2. Presumably, this occurs when crimes of dishonesty or crimes against property have been charged but have been done so alongside other crimes of violence and as such have been included in the figures presented by the SCTS.

The figures in Tables 1 and 2 are based on accused person level data, so where two accused in the same case have lodged a special defence, this will return a count of two. The figures shown in Table 2 are also based on the number of hearings and so, where there are multiple hearings in the same case for the same accused person, this will be recorded by the number of hearings rather than the number of accused. Due to the methodology adopted by the SCTS, therefore, these data cannot be relied upon as an indication of how often women use self-defence in practice; the data cannot be fully contextualised since it is unclear how many women were originally accused of the crimes. Interestingly, national statistics on criminal proceedings in Scotland similarly do not provide data on the gender of the accused (other than for conviction rates, which are not distinguished by offence type or type of procedure).Footnote ¹⁰ It remains a difficulty, therefore, to accurately identify and assess women's use of self-defence from national datasets alone. The lack of data available on defences is particularly unfortunate given the practice of formal notification that takes place and the larger system of record-keeping that exists in relation to criminal justice data within the jurisdiction.

Although the SCTS data presented cannot be said to add anything to the landscape of what is known about women's access to self-defence, they evidence a broader point: feminist researchers face significant barriers and record-keeping within the criminal justice system can contribute (albeit unintentionally) to the invisibility of women's experiences before the law. Methods of recording data are significant since such recording has the potential to reveal potential injustices (Suresh, Reference Suresh, Motha and von Rijswijk2016). Suresh has described files as an instrument of legal process, noting that they have the power not only to record, but also to create multiple worlds (2016, p. 103). In the context of criminal defences, data can show who is raising a defence, in what context and when such claims are successful. This in turn can facilitate knowledge about particular groups that may be excluded from defences.

Access to ‘sitting papers’ (the case papers that form the Crown case) is a further way in which women's experiences may be rendered invisible. Sitting papers can reveal important information that may be otherwise unavailable to researchers, but access to such papers has been extremely limited in Scotland; they can only be accessed with the permission of the Lord President, who has rarely granted such permission. This issue has been the subject of previous criticism: in 1988 it was recommended in a collection of Scottish socio-legal research papers that the sitting papers of the High Court be made available to all researchers and not only those working for the Scottish government (Scottish Office, 1988, p. 1). Despite such criticism, the position regarding access to these papers remains unchanged almost forty years after this was first identified as a research barrier.

Connelly's work also indicates how useful access to sitting papers can be in terms of examining women's use of criminal defences in practice. She is one of the few independent researchers to access sitting papers; she did so in the context of research that was examining the issue of women who kill their abusers. Her workFootnote ¹¹ attempted to map cases of this type. Using sitting papers, she identified twenty-seven cases between the late 1970s and 2000. Of these cases, twenty-five of the women were charged with murder and two with culpable homicide (both of whom pled guilty). Of the twenty-five charged with murder, eleven faced trial and fourteen pled guilty to a reduced plea. Yet, of the twenty-five, eighteen had originally lodged notices of self-defence (two of whom were acquitted on this ground and one found not proven). This suggests that a number of accused who initially claimed to be acting in self-defence go on to resolve their case by way of a reduced charge without trial, which further indicates that pre-trial decision-making may also play a role in eliminating self-defence as a defence strategy.Footnote ¹²

2.3 Women accused of homicide and the use of criminal defences

Using legal reports, sentencing statements and media reports, 111 cases were identified by the author involving women accused of homicide (culpable homicide or murder) in Scotland between 2008 and 2019. Ten women faced no further proceedings after their initial arrest.Footnote ¹³ Three women pled guilty to murder before trial, twenty-six pled guilty to culpable homicide before trial and ten pled guilty to a non-fatal offence before trial. Those who pled guilty to culpable homicide did so on the basis of provocation (30.8 per cent), diminished responsibility (38.5 per cent) and lack of intention for murder (23.1 per cent).Footnote ¹⁴ Sixty-two women continued to trial accused of murder or culpable homicide. The defence positions advanced at trial are shown in Table 3.

Table 3. Accused's account/defence position where homicide proceedings continued (n = 62)

^a This acquittal was accompanied by a restriction order without time limit at a medium-security clinic.

^b In this case, proceedings were dropped during trial.

^c This defence position would arise where there is a co-accused and all parties are alleged to be responsible through the ^doctrine of art-and-part liability that allows derivative liability to arise.

^d One murder conviction was later quashed on appeal.

As Table 3 shows, ten cases were identified where self-defence was put before the court: none involved an acquittal, four involved convictions for murder, five concluded with culpable homicide convictions and one resulted in a conviction for assault. In the case that resulted in a conviction for assault, the female had killed her ex-partner during a confrontation. The locus was the accused's home and she had used a weapon (a bottle). The case involved significant levels of violence (from someone with previous convictions for violenceFootnote ¹⁵). In the cases in which self-defence was led but convictions for murder resulted, the relationship between the accused and deceased were: (1) a female known to the accused through another family member, (2) a female acquaintance and (3) two male partners (here both accused alleged that they were defending themselves against a sexual attack). In the cases in which self-defence was led and a culpable homicide conviction was returned, two involved the killing of a female friend, one involved the killing of a female neighbour, one involved a male flatmate accused of making sexual advances and one involved a male acquaintance who it was alleged tried to rape the female accused.

Amongst the convictions for both murder and culpable homicide, there were killings that took place with weapons and without; those that took place in public and in private; those in which the victim was a female or male acquaintance; and those that involved a co-accused and those that did not. The ages of the females were similar across both groups. Therefore, examining the few homicide cases in which self-defence has been put before the court does not offer a clear pattern as to when the plea is advanced or when it is successful (either fully or partially). However, what can be said is that despite most women in the study group (n = 111) being accused of killing their male partner or ex-partner, and despite the evidence which suggests that most women kill their male partners in self-defence, this was not the common context in which self-defence claims were raised. In only three of the cases (30 per cent) in which self-defence was raised was the deceased a male partner or ex-partner. Most claims (60 per cent) related to the death of a friend or acquaintance. This would suggest particular reluctance to lodge claims of self-defence in the context of intimate partner homicide.

Previous research that has analysed the doctrine of self-defence in the context of rape found no cases in Scotland in which a woman had been acquitted on this basis (McPherson, Reference McPherson2012). This work concluded that misunderstandings may be operating: that whilst the law formally recognises the position that women are entitled to defend themselves against rape, in practice this is limited to rapes by perpetrated by strangers and that problems exist in applying this defence successfully when the context is a sexual attack from a man known to the accused (McPherson, Reference McPherson2012). But, of course, this is the reality of most women's experiences of rape and sexual assault. The Scottish Crime and Justice Survey found that 51 per cent of those who had experienced serious sexual assault since the age of sixteen reported that the perpetrator was their partner and a further 14 per cent reported that the perpetrator was their ex-partner (Scottish Government, 2021, Figure 9.4). As such, the doctrine of self-defence in the context of rape appears to have become divorced from the reality of sexual violence.

2.4 Reported appeal cases

Of the seven reported appeal cases identified, four involved a context of homicide and three of these cases were included in the larger study group discussed (n = 111). Three of the seven reported appeal cases involved unsuccessful self-defence claims in the context of aggravated assault (one against a male acquaintance, one against a female acquaintance and one against police officers). In all three cases, the appeals were successful. In Wilkinson Footnote ¹⁶ a retrial was ordered; and in Croly Footnote ¹⁷and McCallum Footnote ¹⁸ the convictions were quashed. Although this study group represents a small sample of cases, they are suggestive of the fact that the Scottish Court of Criminal Appeal is more willing to engage with women's claims of self-defence in the context of non-fatal offences against the person. In three of the homicide cases in which the appeals were refused, the focus of the appeal was the trial judge's directions on provocation. In Singleton,Footnote ¹⁹ the court noted the distinctive nature of self-defence and provocation, commenting that self-defence should not be considered alongside provocation.Footnote ²⁰ However, the practical relationship between the two is obvious and in Early,Footnote ²¹ the court noted that the evidence required to consider the context of a plea of provocation is the same evidence that must be considered in relation to the question of self-defence. The results from this study show how commonly provocation is pled and accepted in homicide cases involving a female accused, especially where cases are resolved without trial. Elsewhere, it has been evidenced that provocation is the most commonly advanced defence position for women who kill following abuse (McPherson, Reference McPherson2021) and that provocation has been raised in circumstances that are suggestive of self-defence, such as in this example:

In the appeals of both Croly and Meikle, it was submitted by the appellants that provocation should not have been introduced by the trial judge since it had not been a position advanced at trial. One reading of these appeals alongside the high use of provocation to resolve homicide cases is that potential claims of self-defence are at times subsumed into the plea of provocation as a way to accommodate the facts of a confrontational attack presented by the accused (and the fact that she may have been fighting for her life).

The empirical evidence presented shows that women do not commonly advance positions of self-defence, and that where they do advance this position, the defence is only ever partially successful. A closer examination of the requirements of the defence under Scots law will address whether the law is able, in theory, to accommodate women's claims of self-defence.

3.1 Imminence

An imminent threat does not require that the accused be in danger of death, only in danger of serious harm. However, fatal force cannot be used against an attack that the accused knows to be non-fatal. Case-law has clarified that imminence of harm will not be extended to include a future threat.Footnote ²⁴ Otherwise, the concept of imminence and its exact meaning have not been the subject of legal attention. This can be related, in part, to the fact that interpretations over what is considered an imminent threat will often be left to a jury who are not obliged to justify their verdict.

The concept of imminence has been the site of particular focus for many feminist commentators on the basis that it is unjust to demand that a woman suffering from domestic abuse wait until an attack is about to take place, even though there could be a period during which they know a deadly attack is reasonable or likely (Ferzan, Reference Ferzan2004, p. 229). The distinction between ‘imminence’ and ‘immediacy’ has also been considered as potentially problematic for women. Specifically, concern has been raised that ‘immediacy’ imposes the need for an instantaneous response, narrowing the timeframe in which a woman must act and implying a more pressing and urgent threat (Ferzan, Reference Ferzan2004; Gillespie, Reference Gillespie1989). Kaufman (Reference Kaufman2007) acknowledges that the terms ‘imminence’ and ‘immediacy’ are often used interchangeably in legal circles but concludes that it is far from obvious that a useful distinction exists in practice. Leverick also notes the distinction, assuming for the purpose of her chapter on imminence that there is no difference, but commenting that there may well be a distinction in practice (2006, p. 87). In keeping with the lack of specification provided on the requirement generally, the distinction between immediacy and imminence has never been the subject of discussion within the Scottish courts as it has been in other jurisdictions.Footnote ²⁵ Suggestions related to the reform of this requirement will be returned to in section 4.

3.2 Proportionality and necessity

The second requirement of self-defence involves two elements: the force used must be necessary as well as proportional to the threat faced. An exception to the position against using fatal violence against a non-fatal attack exists in the context of rape; the position in Scots law has always been that a woman in entitled to defend herself, fatally if needs be, against this type of attack (Hume, Reference Hume1844, p. 224). In practice, however, no woman appears to have been acquitted on this basis (McPherson, Reference McPherson2012). This aspect of the defence suffers from additional uncertainty following the introduction of the Sexual Offences (Scotland) Act 2009. The Act extended the actus reus of rape to include non-consensual oral and anal penetration, meaning, significantly, that males could be recognised as victims of rape for the first time. Previously, the doctrine of self-defence in the context of rape had been limited to use by female accused, on the basis that males could not be raped under Scots law.Footnote ²⁶ Since the Sexual Offences (Scotland) Act 2009 came into force in December 2010, it would appear that no cases have gone before the Scottish courts in which a male accused of an offence against the person has claimed to have been defending himself against a rape.Footnote ²⁷ As such, there exists continuing uncertainty as to the scope of the doctrine that can also be related, in part, to the size of the jurisdiction.

Necessity of force in self-defence pertains to the moral basis of the defence, which holds that the value of human life is higher than anything else and as such must be protected above other rights and interests. It has previously been commented that it is this aspect of self-defence that the law finds particularly troublesome in cases in which women kill their violent partners (McColgan, Reference McColgan1993, p. 527).

In terms of the second aspect of this requirement, Fletcher notes the ambiguity of the term ‘proportionality’, commenting that in other jurisdictions it has been interpreted to mean action that ‘unduly exceeds the interest spared’ or ‘that it is simply greater than the interest spared’ (Reference Fletcher1973, p. 367, footnote 2, emphases added). It would appear that Fletcher's first definition has been adopted within Scots law: proportionality is understood to be actions that unduly exceed the interest spared (Leverick, Reference Leverick2006, p. 359). In relation to the proportionality requirement, the typical differences in size, weight and strength between men and women have been recognised as potentially problematic for female accused, rendering it necessary for them to use a weapon against an unarmed attack.Footnote ²⁸

The approach of the Scottish courts has been to not judge proportionality on ‘too fine scales’Footnote ²⁹ and cases such as HM Advocate v. McNab demonstrate that there does exist scope for a flexible interpretation of proportionality. McNab is one of the few in which a woman has been successful with self-defence at trial level in Scotland. The facts were that Margaret McNab used a knife once, fatally, during an unarmed attack from her violent husband. It was accepted that her use of the knife was proportional, especially given the two-foot size difference that existed between the deceased and the accused.Footnote ³⁰ However, part of McNab's success with self-defence might be located in the fact that she adhered to socially accepted stereotypes of women who kill their abusers, in terms of both her appearance (reference was made to McNab being a ‘tiny wee woman’ during the trial) and her demeanour throughout the trial (apologetic, remorseful, tearful) (Connelly, Reference Connelly1996). In this way, there was no disruption of the gender roles expected of women within criminal trials (Nicolson, Reference Nicolson, Nicolson and Bibbings2000).

This case suggests that self-defence may not be open equally to all female accused who arm themselves with a weapon. This conclusion is further suggested by Moore v. MacDougall Footnote ³¹ – an appeal against a conviction for assault. Moore and her companion were travelling by bus when they became involved in an altercation with a group of male passengers. Moore's companion was punched by one of the males and Moore was also struck when intervening. Upon being struck, Moore produced a pair of small collapsible scissors and stabbed the male complainer once on each buttock. In refusing Moore's appeal, reference is made to the trial sheriff's comments on her use of a weapon in such circumstances:

Therefore, it is not a given that the courts will endorse women using a weapon against an attack involving a male.

3.3 The obligation to retreat

Leverick identifies four categories of the retreat rule: no retreat, weak retreat, strong retreat and absolute retreat. Where a ‘no retreat’ rule is adopted in law, the accused who kills in self-defence need not have considered whether an opportunity existed to escape in order to use the defence.Footnote ³³ In contrast, where there is an ‘absolute’ obligation to retreat, such an obligation is imposed regardless of the consequences. Although English law abolished the formal requirement to retreat,Footnote ³⁴ the opportunity to escape remains an aspect that will be taken into account when deciding whether or not subsequent actions were reasonable and necessaryFootnote ³⁵ and so could be conceptualised under the ‘weak retreat’ rule that Leverick advances. The fact that any reasonable opportunity to escape must be taken in any context leads her to conclude that Scotland operates a ‘strong retreat’ rule.

For Goosen (referring to her translations of Synman's work), the question of whether there is a duty to retreat is purely academic in this context since it will not be a question of whether a female accused should have fled, but whether they were entitled to go to the lengths they did to defend themself (Reference Goosen2013, p. 94). In this way, the obligation to retreat becomes a discussion about the necessity for action – the aspect of self-defence that McColgan (Reference McColgan1993) believes to be the most problematic for women who kill.

Under Scots law, there is no duty to retreat where the context of self-defence is acting to protect a third party. Instead, the courts have reformulated the requirement as an obligation only to use violence as a last resort.Footnote ³⁶ In a domestic setting, where most domestic abuse takes place (Scottish Government, 2019), this ‘third party’ is likely to be a child or children (Women's Aid). The Scottish courts have never been asked to consider whether an accused/defender is obliged to retreat from their home when children are present in the house. This is yet another aspect of the doctrine particularly significant to women that lacks clarity under Scots law.

This lack of clarity over the application of self-defence within the home contributes to a male model of self-defence that reflects males’ experiences of (public) violence, rather than women's experiences of violence in the home. Rosen (Reference Rosen1993) links the male model of self-defence to the two roots of the defence (‘se defendendo’ and ‘felony prevention’). Similarly, Wallace (Reference Wallace2004) notes that as per natural law, self-defence developed around the two scenarios of ‘stranger in dark alley’ and ‘chance medley’/bar fight. Certainly, fighting has always been defined by society as a masculine activity; male standards of behaviour are automatically imposed on violent confrontations as a result, with no rules existing for the governance of women's responses to male violence (Gilbert, Reference Gilbert2002; Gillespie, Reference Gillespie1989). Because aggression and force are incompatible with societal understandings of femininity, a male model of self-defence has been perpetuated with women who kill simply not being perceived as having acted in self-defence (McColgan, Reference McColgan1993).