Establishing a Case for Murder

Establishing a Case for Murder in that respect is little doubt that Gharmi exit be charged with Peters clear up, unless any autopsy carried out shows that his death was completely unrelated to his ingestion of the rat embitter. On the abandoned facts this take cares extremely unlikely.In allege to establish a case for murder it is the responsibility of the prosecution to prove that Gharmi was in the correct state of mind (mens rea) when she placed the rat poison in Peters rice-baryani. For murder this is malice aforethought1 either express or implied2. This can also be described as an intention to unlawfully erase the victim (express malice) or cause grievous bodily harm (implied malice). Grievous bodily harm is defined for these purposes as really serious harm3. In auxiliary to this mental element the Crown must establish that Gharmi tangiblely did the act which caused Peters death (actus reus), that is she placed the poison in the food understandably a very simple proces s in this instance.Dependant upon the evidence available it may be the case that the Crown Prosecution Service does non feel that it will be possible to sustain a murder charge. In this case they may downgrade the charge to one of in free manslaughter. This would be the case if it was felt that Gharmi had not intended to eliminate or cause grievous bodily harm to Peter4, but had simply intended to injure, aggrieve or annoy5 him. For a charge of unvoluntary manslaughter to be possible, the act which causes6 the death must be unlawful, meaning it must engraft a criminal offence7. There is little doubt the poisoning of Peters food and tea would constitute an unlawful act8, regardless of Gharmis intentions, unless it can be shown that she intended no harm, which seems unlikely. Gharmi can merely be guilty of involuntary manslaughter if it is thought by a dialog box that it would be inevitable to the reasonable person that her actions would pose the risk of exposure of at least s ome harm to Peter9. It is important to note that it is irrelevant whether Peters death was caused by Gharmis poisoning of his food or his tea. Since it was possible for either to cause his death it is not necessary to draw a distinction mingled with the two10.Involuntary manslaughter has been described as a homicide which occupies the unfirm sands between the uncertain definition of murder and the unsettled boundaries of excusable or accidental death11 and it is this uncertainty that Gharmi would need to rely on. Is it possible for a jury to be sure that she intended to erase Peter? Clearly the facts of the case are extremely relevant here, namely the amount of rat poison used and Gharmis knowledge of its possible effects. If convicted of manslaughter Gharmi may, at the discretion of the court, event up to life imprisonment12.If the Crown Prosecution Service intends to persist with the charge of murder against her Gharmi will need to hire whether she is a position to try to de fend the charge in some way. The most likely defence available to Gharmi is that of voluntary manslaughter by incitement. The jury must be satisfied that Gharmi was provoked (whether by things done or by things said or both together) to leave out her ego control13. It is interesting to note that despite this being a defence the onus of proof is placed on the prosecution to demonstrate that there was not any exacerbation. The judge must make this clear to the jury14 and should indicate to them any evidence that might indicate that provocation took place and therefore support the defence15. In essence whether this defence is available is purely a decision for the jury based on the evidence.Section 3 of the Homicide come 1957 raises two questions which must be considered by the jury. The first is the subjective question of whether the Gharmi was provoked to lose her self-control by the things that Peter had said or done to her. In regularise for provocation to be considered it mu st be decided that Gharmi was so affected by Peters words and actions that she suffered a sudden loss of self-control so that she was so subject to passion as to make her for the moment not the master of her mind16. Clearly the longer the time between the provocation and the actions of the suspect the less likely it is that the provocation can be said to result in a sudden loss of control17. This is more likely to be considered to constitute a situation where the defendant simply exacts punish on the victim for their actions, and this take aim of deliberation would be inconsistent with the defence of provocation.Whilst it is essential in order for the defence of provocation to be valid that the act of the defendant follows immediately upon the provoking acts of the victim, it is not essential that the victims last act is the only one that triggers the defendants actions18. This is clearly hugely relevant to Gharmi, in that she has suffered a level of abuse from Peter for the last two years. Since Gharmi has been involved in a series of abusive and violent arguments with Peter over time, the jury are far more likely to be asked to consider that this, on the looking at of it, relatively minor argument constitutes a last straw for Gharmi19 and that she suffered a loss of self-control following it. It is irrelevant for the purposes of the defence of provocation that Gharmi may call for at this or any point in the past induced Peter with her comments, especially regarding Dhoop, to act in the way he did. Since section 3 of the Homicide Act 1957 does not expressly preclude circumstances where the defendant has induced an action or a reaction from the victim, which in return caused the defendant to lose control the defence of provocation must be put before the jury20, as it would if the defendant had not caused any kind of provocation to the victim.It seems likely that Gharmi would find out the requirements of this subjective test, but in order to successfully p lead provocation as a defence to murder she must also meet the requirements of the prey test in section 3. The jury must consider not only that the defendant lost their self-control, but also whether all of the things done or said as a provocation might have provoked the reasonable man to do as the defendant did21. The directions that would need to be given to a jury at this point are somewhat complex and would need very careful consideration.The jury must assess the level of provocation in relation to any particular peculiarities that the defendant might have22. If the defendant is of a particularly subtile nature regarding some aspect, this must be interpreted into pecker when the jury are considering the level of provocation applied by the victim. When this has been assessed however, the jury must then weigh up the standard of the defendants self-control against that of the reasonable person, of the same sex and age of the defendant, exercising ordinary powers of self-control2 3. The jury can not take into posting any of the defendants particular peculiarities when assessing whether they have exercised reasonable self-control. It is not necessary for the act which has been provoked to be in any way proportionate to the provocation, but the jury should consider this when deciding whether the reasonable man might have reacted in the same way as the defendant24.What this means for Gharmi is that whilst a jury will take into account any personal traits that she might possess with regards to the level of provocation which might provoke a reaction from her, they will then need to decide whether a woman of the same age as her, with a normal level of self-control, might have acted in the same manner. They will take into consideration the level of abuse Gharmi has received from Peter and the period over which it has been received for the purposes of assessing whether it is of a serious enough nature to support the defence of provocation. Having done this they c annot take it into account further when deciding whether Gharmi acted reasonably, this must be assessed against the standard described above.There are one or two matters which may be of concern to the jury when considering provocation in relation to Gharmis cleanup of Peter. The first is that her reaction did not follow the provocation immediately. Gharmi spent time cooking Peters meal and, it may be considered, took time to plan her revenge in a controlled manner. The counter argument to this would of course be that Gharmi must have been certain that her actions would result in her arrest and in that circumstance it seems far more likely to have been a moment of loss of control on her part. It would seem unreasonable to think that she might prefer to kill Peter and leave her son without either parent, instead of exacting some other kind of revenge on him such as leaving and marrying Dhoop. The other concern would be that her revenge, given the fact that the relationship was a tem pestuous one, was not proportionate to the provocation. It has been mentioned that this does not need to be the case, but it is something that would be considered by a jury when deciding whether Gharmis reasonable counterpart would have acted in the same manner she did25. At this stage of their deliberations the jury cannot take into account any of Gharmis personal characteristics, such as the possibility that she might be more sensitive to Peters comments as a result of the length of time the abuse has continued for. They must simply say that if provoked would the reasonable woman of Gharmis age have reacted as she did. It is far less likely that a person who has not suffered sustained abuse would have reacted by killing Peter, but this is how Gharmi must be judged.If found guilty of murder Gharmi will face a mandatory life sentence, which means, for the type of murder she has committed, she will face a prison sentence of not less that fifteen years26. It has already been stated th at if convicted of involuntary manslaughter she could also face a life sentence27 there is however some discretion in sentencing. The same applies if Gharmi successfully pleads voluntary manslaughter through provocation28. The court will take into account the level of provocation, the time span between the provocation and the unlawful killing and the length of time that the provocation has taken place for. Clearly the less the provocation and the shorter its duration the longer the sentence that will be issued to the defendant, providing there are no other mitigating circumstances. The sentence range is from life imprisonment to no custodial sentence at all. It seems likely on the facts that Gharmi would face some kind of custodial sentence, but given the length of time the provocation continued for it, would be lessened from life, however it is recognised that actual physical violence or anticipated violence are considered a greater provocation than verbal abuse alone.On the given facts Gharmi did unlawfully kill Peter. If this was not intentional she may face a charge of manslaughter. In 1989, the last year for which figures are available, the number of indictments for homicide was 371 of which there were only 28 convictions for involuntary manslaughter as opposed to 131 for murder and 110 for other types of manslaughter29. With this in mind it seems, on the facts, that Gharmi is far more likely to be successful in a plea of manslaughter through provocation in order to reduce her conviction from murder than have it reduced to involuntary manslaughter by claiming that she did not intend to kill Peter.2000 wordsTable of CasesA-Gs Reference (No. 4 of 1980) 1981 2 every last(predicate) ER 617A-G for Jersey v. Holley 2005 UKPC 23DPP v. Camplin 1978 AC 705Phillips v. R 1969 2 AC one hundred thirtyR v. Ahluwia 1993 Crim. LR 63R v. Cascoe 1970 2 entirely ER 833R v. Church 1966 1 QB 59R v. Dias 2001 EWCA Crim 2986, R v. Kennedy 2005 1 WLR 2159 et alR v. Duffy 194 9 1 on the whole ER 932R v. Humphries 1994 4 All ER 1009R v. Inner South London Coroner, ex p Douglas-Williams 1999 1 All ER 344R v. Johnson 1989 1 WLR 740DPP v. Smith 1961 AC 290R v. Stewart (Benjamin James) 1995 4 All ER 999R v. Taylor (1834) 2 Lew CC 215R v. Thornton (Sara Elizabeth) (No.2) 1996 2 All ER 1023Woolmington v. DPP 1935 AC 462Table of LegislationCriminal Justice Act 2003Homicide Act 1957Offences Against the Person Act 1861BibliographyAllen, M. J., Elliott and Woods Cases and Materials on Criminal faithfulness 8th Edition (2001), London Sweet MaxwellHalsburys Laws of England, Criminal Law, Evidence and Procedure (Volume 11(1)) (2006 Reissue) Paragraphs 92 101 Web VersionHolton, R. and Shute, S., Self mark off in the Modern Provocation Defence (2007), Oxford Oxford Journal of Legal Studies (27(1), 49 73)Office for National Statistics, Criminal Statistics for England and Wales (1998), Cm 4649Ormerod, D., Smith and Hogan Criminal Law twelfth Revised Edition, (2008 ), Oxford Oxford University PressOrmerod, D., Smith and Hogan Criminal Law Cases and Materials 9th Revised Edition, (2005), Oxford Oxford University PressReed, A., Jury Directions on Provocation (2006), Criminal Lawyer (158, 1 3)Sentencing Guidelines Council Guideline Manslaughter by Reason of Provocation (2005)Slapper, G. and Kelly, D., The English Legal System 7th Edition (2004), London Cavendish1Footnotes1 Homicide Act 1957, s.12 Woolmington v. DPP 1935 AC 4623 DPP v. Smith 1961 AC 2904 R v. Taylor (1834) 2 Lew CC 2155 Offences Against the Person Act 1861, s.246 R v. Inner South London Coroner, ex p Douglas-Williams 1999 1 All ER 3447 R v. Dias 2001 EWCA Crim 2986, R v. Kennedy 2005 1 WLR 2159 et al8 Offences Against the Person Act 1861, s.249 R v. Church 1966 1 QB 5910 A-Gs Reference (No. 4 of 1980) 1981 2 All ER 61711 Hogan, The Killing desktop 1964 73 1974 Crim. L.R. 387,39112 Offences Against the Person Act 1861 s.513 Homicide Act 1957 s.314 R v. Cascoe 1970 2 All ER 8331 5 R v. Stewart (Benjamin James) 1995 4 All ER 99916 R v. Duffy 1949 1 All ER 93217 R v. Ahluwia 1993 Crim. LR 6318 R v. Humphries 1994 4 All ER 100919 R v. Thornton (Sara Elizabeth) (No.2) 1996 2 All ER 102320 R v. Johnson 1989 1 WLR 74021 Homicide Act 1957 s.322 DPP v. Camplin 1978 AC 70523 A-G for Jersey v. Holley 2005 UKPC 2324 Phillips v. R 1969 2 AC 13025 Phillips v. R 1969 2 AC 13026 Criminal Justice Act 2003 s.26927 Offences Against the Person Act 1861 s.528 Sentencing Guidelines Council Guideline Manslaughter by Reason of Provocation (2005)29 Criminal Statistics for England and Wales Cm 4649 (1998)