Establishing a Case for Murder

Establishing a Case for MurderThere is little doubt that G stultificationi depart be bangd with turncocks absent, un little(prenominal) whatever autopsy carried break through shows that his death was completely unrelated to his ingestion of the rat poison. On the condition f achievements this seems extremely un seeming.In dress to establish a case for performance it is the responsibility of the prosecution to prove that Gharmi was in the correct state of wit (mens rea) when she placed the rat poison in gibes rice-baryani. For butcher this is malice aforethought1 either express or implied2. This can also be described as an intention to unlawfully toss off the victim (express malice) or cause grievous bodily harm (implied malice). Grievous bodily harm is defined for these purposes as re every last(predicate)y serious harm3. In addition to this psychogenic element the Crown mustiness(prenominal) establish that Gharmi put to workually did the act which caused jibes dea th (actus reus), that is she placed the poison in the food understandably a very simple process in this instance.Dependant upon the state available it may be the case that the Crown pursuance dish does non feel that it volition be feasible to sustain a execution of instrument charge. In this case they may downgrade the charge to adept of automatic manslaughter. This would be the case if it was felt that Gharmi had not intended to defeat or cause grievous bodily harm to son of a bitch4, further had scarcely intended to injure, aggrieve or annoy5 him. For a charge of voluntary manslaughter to be possible, the act which causes6 the death must be unlawful, meaning it must constitute a criminal offence7. There is little doubt the inebriety of quills food and tea would constitute an unlawful act8, careless(predicate) of Gharmis intentions, unless it can be shown that she intended no harm, which seems un seeming. Gharmi can further be guilty of involuntary manslaughter if it is thought by a instrument panel that it would be inevitable to the middling person that her actions would pose the risk of at least any(prenominal) harm to Peter9. It is important to note that it is ir germane(predicate) 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 allure a distinction between the cardinal10.Involuntary manslaughter has been described as a homicide which occupies the shifting sands between the uncertain definition of murder and the doubtful boundaries of excusable or accidental death11 and it is this uncertainty that Gharmi would need to bank on. Is it possible for a dialog box to be sure that she intended to buck Peter? all the way the facts of the case are extremely relevant here, to wit 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, demo nstrate up to life captivity12.If the Crown Prosecution Service intends to persist with the charge of murder against her Gharmi will need to view whether she is a position to try to defend the charge in some(prenominal) way. The most likely defence available to Gharmi is that of voluntary manslaughter by incitement. The instrument panel must be satisfied that Gharmi was kindle (whether by things make or by things said or both together) to lose her self restrainer13. It is interesting to note that despite this being a defence the lode of proof is placed on the prosecution to demonstrate that in that location was not any innervation. The judge must make this clear to the dialog box14 and should indicate to them any evidence that faculty indicate that provocation took place and therefore underpin the defence15. In essence whether this defence is available is purely a stopping bespeak for the jury based on the evidence.Section 3 of the Homicide Act 1957 raises dickens q uestions which must be checked by the jury. The first is the subjective question of whether the Gharmi was provoked to lose her self- operate by the things that Peter had said or d angiotensin-converting enzyme to her. In order for provocation to be considered it must be resolute that Gharmi was so affected by Peters words and actions that she suffered a sudden loss of self-renunciation so that she was so subject to love life as to make her for the moment not the master of her mind16. Clearly the longer the period 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 take hold17. This is more likely to be considered to constitute a situation where the defendant simply exacts revenge on the victim for their actions, and this direct 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 t he defendant follows nowadays upon the provoking acts of the victim, it is not essential that the victims last act is the unaccompanied one that triggers the defendants actions18. This is clearly hugely relevant to Gharmi, in that she has suffered a direct of squall 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 off the beaten track(predicate) more likely to be asked to consider that this, on the face of it, relatively minor argument constitutes a last straw for Gharmi19 and that she suffered a loss of self-control following it. It is unsuitable for the purposes of the defence of provocation that Gharmi may stupefy 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 admit the requirements of this subjective test, but in order to successfully plead provocation as a defence to murder she must also fill up the requirements of the objective 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 fond record regarding some aspect, this must be taken into tarr adiddle when the jury are considering the level of provocation applied by the victim. When this has been assessed however, the jury must thence weigh up the standard of the defendants self-control against that of the reasonable person, of the corresponding sex and age of the defendant, exercising ordinary powers of self-control23. The jury can not take into account 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 decision making whether the reasonable man might have reacted in the resembling manner 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 cleaning 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 cannot 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 killing 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 aware that her actions would result in her arrest and in that circumstance it seems far more li kely 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 separate kind of revenge on him such as go away and marrying Dhoop. The other concern would be that her revenge, given the fact that the relationship was a tempestuous 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 degree 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 f ar 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 that 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 substantial 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 Pete r.2000 wordsTable of CasesA-Gs Reference (No. 4 of 1980) 1981 2 all ER 617A-G for Jersey v. Holley 2005 UKPC 23DPP v. Camplin 1978 AC 705Phillips v. R 1969 2 AC 130R v. Ahluwia 1993 Crim. LR 63R v. Cascoe 1970 2 All 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 1949 1 All 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. metalworker 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 Legislation distressing arbitrator Act 2003Homicide Act 1957Offences Against the Person Act 1861BibliographyAllen, M. 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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 20 01 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 cleansing Ground 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 83315 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)