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There is little doubt that Gharmi will be charged with Peter’s murder, unless any autopsy carried out shows that his death was completely unrelated to his ingestion of the rat poison. On the given facts this seems extremely unlikely.
In order 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 Peter’s rice-baryani. For murder this is malice aforethought either express or implied. This can also be described as an intention to unlawfully kill the victim (express malice) or cause grievous bodily harm (implied malice). Grievous bodily harm is defined for these purposes as really serious harm. In addition to this mental element the Crown must establish that Gharmi actually did the act which caused Peter’s death (actus reus), that is she placed the poison in the food – clearly a very simple process in this instance.
Dependant upon the evidence available it may be the case that the Crown Prosecution Service does not feel that it will be possible to sustain a murder charge. In this case they may downgrade the charge to one of involuntary manslaughter. This would be the case if it was felt that Gharmi had not intended to kill or cause grievous bodily harm to Peter, but had simply intended to ‘injure, aggrieve or annoy’ him. For a charge of involuntary manslaughter to be possible, the act which causes the death must be unlawful, meaning it must constitute a criminal offence. There is little doubt the poisoning of Peter’s food and tea would constitute an unlawful act, regardless of Gharmi’s intentions, unless it can be shown that she intended no harm, which seems unlikely. Gharmi can only be guilty of involuntary manslaughter if it is thought by a jury that it would be inevitable to the reasonable person that her actions would pose the risk of at least some harm to Peter. It is important to note that it is irrelevant whether Peter’s death was caused by Gharmi’s 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 between the two.
Involuntary manslaughter has been described as a homicide which occupies ‘the shifting sands between the uncertain … definition of murder and the unsettled boundaries of excusable or accidental death’ 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 kill Peter? Clearly the facts of the case are extremely relevant here, namely the amount of rat poison used and Gharmi’s knowledge of its possible effects. If convicted of manslaughter Gharmi may, at the discretion of the court, face up to life imprisonment.
If the Crown Prosecution Service intends to persist with the charge of murder against her Gharmi will need to consider whether she is a position to try to defend the charge in some way. The most likely defence available to Gharmi is that of voluntary manslaughter by provocation. The jury must be satisfied that Gharmi was ‘provoked (whether by things done or by things said or both together) to lose [her] self control’. 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 provocation. The judge must make this clear to the jury and should indicate to them any evidence that might indicate that provocation took place and therefore support the defence. In essence whether this defence is available is purely a decision for the jury based on the evidence.
Section 3 of the Homicide Act 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 order for provocation to be considered it must be decided that Gharmi was so affected by Peter’s 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] mind’. Clearly the longer the time between the provocation and the actions of the defendant the less likely it is that the provocation can be said to result in a sudden loss of control. 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 level 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 victim’s last act is the only one that triggers the defendant’s actions. 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 face of it, relatively minor argument constitutes a ‘last straw’ for Gharmi 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 have 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 jury, as it would if the defendant had not caused any kind of provocation to the victim.
It seems likely that Gharmi would meet the requirements of this subjective test, but in order to successfully plead provocation as a defence to murder she must also meet 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 did. 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 have. If the defendant is of a particularly sensitive nature regarding some aspect, this must be taken into account 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 defendant’s self-control against that of the reasonable person, of the same sex and age of the defendant, exercising ordinary powers of self-control. The jury can not take into account any of the defendant’s 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 manner as the defendant.
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 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 Gharmi’s killing of Peter. The first is that her reaction did not follow the provocation immediately. Gharmi spent time cooking Peter’s 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 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 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 Gharmi’s reasonable counterpart would have acted in the same manner she did. At this stage of their deliberations the jury cannot take into account any of Gharmi’s personal characteristics, such as the possibility that she might be more sensitive to Peter’s 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 Gharmi’s 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 years. It has already been stated that if convicted of involuntary manslaughter she could also face a life sentence there is however some discretion in sentencing. The same applies if Gharmi successfully pleads voluntary manslaughter through provocation. 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 manslaughter. 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.
Table of Cases
A-G’s Reference (No. 4 of 1980)  2 All ER 617
A-G for Jersey v. Holley  UKPC 23
DPP v. Camplin  AC 705
Phillips v. R  2 AC 130
R v. Ahluwia  Crim. LR 63
R v. Cascoe  2 All ER 833
R v. Church  1 QB 59
R v. Dias  EWCA Crim 2986, R v. Kennedy  1 WLR 2159 et al
R v. Duffy  1 All ER 932
R v. Humphries  4 All ER 1009
R v. Inner South London Coroner, ex p Douglas-Williams  1 All ER 344
R v. Johnson  1 WLR 740
DPP v. Smith  AC 290
R v. Stewart (Benjamin James)  4 All ER 999
R v. Taylor (1834) 2 Lew CC 215
R v. Thornton (Sara Elizabeth) (No.2)  2 All ER 1023
Woolmington v. DPP  AC 462
Table of Legislation
Criminal Justice Act 2003
Homicide Act 1957
Offences Against the Person Act 1861
Allen, M. J., Elliott and Wood’s Cases and Materials on Criminal Law 8th Edition (2001), London: Sweet & Maxwell
Halsbury’s Laws of England, Criminal Law, Evidence and Procedure (Volume 11(1)) (2006 Reissue) Paragraphs – 92 – 101: Web Version
Holton, R. and Shute, S., Self Control 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 4649
Ormerod, D., Smith and Hogan Criminal Law 12th Revised Edition, (2008), Oxford: Oxford University Press
Ormerod, D., Smith and Hogan Criminal Law: Cases and Materials 9th Revised Edition, (2005), Oxford: Oxford University Press
Reed, 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: Cavendish
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