Scottish Feminist Judgments Podcast: Drury v Her Majesty’s Advocate 2001 SLT 1013

by Claire McDiarmid – posted on 25 August 2020

The Scottish Feminist Judgments Project sought to take existing judgments in key Scottish cases and re-write these from a feminist perspective, constrained by the law, policy and practice context as it was at the time of the original decision. I am delighted that, of the eighteen cases covered, Drury is the basis for one of three podcast episodes. (I wrote the feminist judgment and a reflective statement on the case, Juliette Casey (advocate) supplied the commentary and Jay Whittaker wrote a set of four, incredibly thought-provoking, poems).

Drury is a murder case but, unlike the stuff of crime fiction, there was no mystery as to the perpetrator. The deceased, Marilyn McKenna, sustained injuries to her head and neck inflicted with a claw hammer by Stuart Drury, her (very much) former partner. Of those injuries, the following was noted in the judgment (at para [3]): “One of the Crown pathologists said that the facial injuries were the worst she had ever seen.” The legal issue was around the defence of provocation which, if successful, would lead to the return of a culpable homicide verdict on a murder charge. It can be pled where the accused has immediately lost their self-control in response to a provoking act and taken life. Scots law recognises only two provoking acts: initial violence by the ultimate deceased and, as in Drury, the discovery of sexual infidelity. Drury’s claim was that, although his relationship with the deceased was on/off, he was still in relationship with her. Thus, on discovering an unidentified man leaving her property late at night, he inferred that they had been having sex and this caused him to lose his self-control and kill her. In absolute direct contrast, on Ms McKenna’s version of events, Drury had been stalking her. She had an interim interdict against him and he had accrued five breach of the peace convictions in relation to stalking behaviour, as detailed in this Scottish Government publication.

The podcast episode explores a number of issues around the way in which Scots law draws on its ancient origins in contemporary cases, especially where those concern sexual mores. It narrates the events surrounding the murder (which are harrowing) and it considers, and interrogates, the way in which criminal law in Scotland creates and applies the doctrine of precedent. You can listen to the episode here:

Hart Publishing has just made Claire's feminist judgment and reflective statement available on an open access basis to coincide with the podcast launch. You can access it at: