The perceived politicisation of the Scottish judiciary and legal profession

THERE IS A GROWING SENSE in Scotland that the judiciary is not always operating purely as the independent constitutional safeguard it is meant to be. At times, it appears to be influenced by wider ideological pressures, with broader social and political narratives shaping how the law develops and is applied. This concern is not new, but it feels more visible in recent years.

One area where this is often said to be most apparent is in the development and application of culpable homicide. Here, the boundaries of criminal liability seem to be shifting, not always in a way that is easy to square with long-established legal principle. That raises obvious questions about the role of the courts and the stability of the system as a whole.

Traditionally, the judiciary’s role has been to apply the law as it stands, impartially and without favour. Judges are supposed to act as a check on overreach, whether by the state or other powerful interests. In criminal law, that has always meant ensuring that liability is only imposed where the relevant legal thresholds are properly met.

In culpable homicide cases, that has historically required a clear level of recklessness or blameworthy conduct of a serious kind. The conduct has to be sufficiently grave to justify the stigma of a conviction. Scots law has always drawn a distinction here: murder involves either an intention to kill or wicked recklessness showing a depraved disregard for life, while culpable homicide covers unlawful killings that are blameworthy but do not reach that higher threshold. That distinction is important, because it allows the law to deal with tragic or negligent cases without collapsing everything into murder.

There has been a rise in legal and academic perspectives influenced by feminist theory and wider advocacy around harm and accountability

However, there is a growing concern that these boundaries are not always being applied with the same strictness. In emotionally charged cases, particularly those involving vulnerable individuals, there can be a sense that the concept of recklessness is being stretched. Conduct that might previously have been treated as negligence or tragic wrongdoing is sometimes being treated as criminal culpability of a more serious kind.

It is difficult to look at this in isolation from the wider social and political environment. There has been a rise in legal and academic perspectives influenced by feminist theory and wider advocacy around harm and accountability. Many of the underlying concerns are understandable and reflect real social issues. But there is a question about whether those influences are sometimes shaping legal reasoning in a way that moves beyond established doctrine.

One concern is the gradual shift away from a subjective focus on the accused’s actual state of mind, towards a more objective standard of what they ought to have foreseen. That change matters, because it can lower the threshold for conviction in practice. It risks liability being imposed even where there is limited evidence of actual foresight of serious risk. That sits uneasily with traditional principles of Scots criminal law, which place significant weight on personal culpability. Cases such as Broadley v HM Advocate illustrate how the courts have treated wicked recklessness in murder, but the distinction between murder and culpable homicide is supposed to remain meaningful and carefully drawn.

for the first time a jury convicted an accused of culpable homicide where the victim’s suicide was treated as the endpoint of sustained domestic abuse

A recent and often cited example is the 2026 High Court case of HM Advocate v Lee Milne. Milne was convicted of culpable homicide and a course of domestic abuse after his wife, Kimberly Milne, died in July 2023 following a fall from a bridge in Dundee. The Crown did not argue that he directly caused her death, but instead led evidence of a prolonged campaign of coercive and controlling behaviour, including physical assaults, intimidation, and conduct which left her in a state of fear. It was accepted that her final act was a suicide, but the jury found that the abuse was a significant causal factor in her death. Milne was ultimately sentenced to eight years’ imprisonment. The case has been described as a legal first in Scotland, marking the first time a jury has convicted an accused of culpable homicide in circumstances where the victim’s suicide was treated as the endpoint of sustained domestic abuse.

The difficulty is not simply doctrinal. It is institutional. If courts begin to reflect prevailing social pressures too closely, rather than standing apart from them, there is a risk that they are no longer seen as neutral arbiters. Instead, they may appear to be giving legal form to broader cultural expectations, sometimes without the same level of restraint that legal principle demands.

Culpable homicide is not a minor category of offence. It carries serious moral and legal consequences, and it requires careful application. If its scope is expanded too readily, even in response to understandable social concerns, that risks undermining legal certainty and public confidence. That is not to say the law should ignore social change or remain frozen in time. But major shifts in principle are usually supposed to come through legislation, not through incremental judicial development that is difficult to identify clearly in the moment.

This concern is not limited to culpable homicide. There is a wider perception issue affecting parts of the Scottish legal system more generally. The profession is increasingly seen, by some at least, as less neutral than it once was. Law and politics have always overlapped, but the worry is that in certain areas the balance has shifted too far, with legal reasoning appearing to align more closely with prevailing political narratives than with strict legal neutrality.

Courts are often now drawn into disputes that are politically charged, particularly in constitutional and human rights contexts. The 2019 Cherry/Miller litigation is a clear example. In Cherry v Advocate General for Scotland and R (Miller) v The Prime Minister, the UK Supreme Court held that the prorogation of Parliament was unlawful because it had the effect of frustrating Parliament’s constitutional functions without reasonable justification. The decision was widely seen as legally grounded in constitutional principle, particularly parliamentary sovereignty and executive accountability. Even so, it also illustrated how quickly courts can become central actors in major political disputes. That inevitably affects public perception of judicial neutrality, even where the legal reasoning itself is sound.

There have been repeated suggestions that separating those roles would improve transparency and public confidence

Perceptions of bias are also affected by the structure of prosecution in Scotland. The Lord Advocate occupies a dual role, acting both as a senior legal adviser to government and as head of the prosecution service. That arrangement has been criticised for a long time on the basis that it creates at least an appearance of institutional tension. In politically sensitive cases, that perception can become particularly acute. There have been repeated suggestions that separating those roles would improve transparency and public confidence.

More recent developments in criminal law have added further complexity. Domestic abuse prosecutions have increasingly engaged with coercive control and cumulative harm. The Milne case has been presented as a landmark in this area, reflecting a broader legal shift towards recognising that sustained psychological and physical abuse can, in extreme circumstances, form the basis for culpable homicide where it is shown to have driven a victim’s fatal act. Supporters of this development argue that it reflects a more realistic understanding of abusive relationships and their consequences. Critics, however, question whether this effectively stretches causation and culpability into areas previously treated as outside criminal responsibility.

Hate crime legislation raises similar issues. The Hate Crime and Public Order (Scotland) Act 2021 gives prosecutors a degree of discretion in determining when conduct amounts to stirring up hatred based on protected characteristics. It was intended to strengthen protections against prejudice. However, it has also been criticised on free expression grounds and for potentially encouraging inconsistent enforcement. Critics argue that it may have a chilling effect on legitimate speech, including in informal contexts. The Scottish Government has defended the legislation as compatible with human rights standards, but it remains controversial and has contributed to wider debate about the direction of criminal law.

The broader legal profession has not remained detached from these debates. Professional bodies and senior figures often take public positions on social and legal questions framed in terms of progress or reform. That is not inherently problematic, but it can contribute to a perception that certain viewpoints are more institutionally acceptable than others. Even the language used in legal discourse has shifted over time, with terms such as vulnerability, harm and protection being applied more broadly and in ways that sometimes reflect contemporary policy priorities. In some contexts, that may be justified. In others, it risks expanding the scope of state intervention beyond what was previously considered appropriate.

None of this is to suggest that judges or lawyers are acting with deliberate political intent. Most remain committed to fairness, due process and the rule of law. But institutions are judged not only by intention, but by perception and effect. If the public begins to believe that the legal system is shaped by ideological preference rather than consistent principle, confidence in that system becomes harder to maintain.

If confidence in the rule of law is lost, even well-functioning institutions struggle to maintain legitimacy

That loss of confidence is not easily reversed. Once people start to see the law as a vehicle for social or political outcomes rather than a neutral framework for resolving disputes, the authority of the system is weakened. That has implications not just for high-profile constitutional cases, but for ordinary criminal justice as well.

Ultimately, Scotland’s judiciary and legal profession face a choice. Either they continue along a path where legal development is increasingly intertwined with broader ideological and political trends, or they consciously reassert a stricter commitment to independence, restraint and established principle. The second approach is what sustains long-term confidence in the rule of law. If that confidence is lost, even well-functioning institutions struggle to maintain legitimacy.

The law should remain grounded in clear and predictable principles, applied consistently. Where change is needed, it should be made openly through democratic legislation. The courts are there to interpret and apply the law, not to reshape it in line with shifting cultural expectations. Only by keeping that distinction clear can the system maintain both authority and public trust.