Consider criminal liability

The situation concerning Lara would result in a charge of murder being brought by the prosecution because she possessed the necessary Actus Reus and Mens rea for the crime. However her situation is very different to that of someone who has murdered out of cold blood. Council for the defendant would probably argue that the defence of provocation applies to Lara, however this defence is not very simple especially concerning battered women as history has shown.

There are three elements, which must be proved before this defence can apply: provocative conduct; that the provocation made the defendant lose their self-control; and that a reasonable person would have been so provoked. However these issues are to be left for the jury to decide: R v Baille 1995. S. 3 of the Homicide Act 1957also dictates that the judge should direct the jury on provocation if there is evidence that it existed, even if the defendants did not raise the defence themselves.

Provocative conduct has been described in the Homicide Act1957 as; things done or things said or both together'. This element has obviously been satisfied in Lara's situation as we are told that she received repeated abuse up to and until the night in when the murder was committed. The second element is the subjective test. Did the defendant actually lose their self-control? The loss of self-control must be due to a loss of temper; it was also later laid down in R v Duffy 1949 that the loss of self-control must be 'sudden and temporary'.

In Lara's situation, her husband physically assaulted her, on the night in question, after which she went downstairs to make a cup of tea. It seems as though there is a time lapse between the provocation and her act this time lapse was described in R v Ibrams 1981 as a 'cooling off period' because of this time lapse it can be argued that Lara's loss of self-control was not 'sudden and temporary'. However in the case of R v Ahluwalia it was stated that the existence of a time lapse did not necessarily mean that the defence did not apply it was another thing that was too be left for he jury to decide.

Battered Women have always found it difficult to establish provocation because if this requirement of sudden and temporary loss of self-control, this has lead to criticism of discrimination against women. However some progress has been made in this area and now Battered Women's Syndrome will be taken into account since the appeal of Sarah Thornton in 1995, and since the appeal of Emma Humphrey the courts have accepted that the cumulative effects of years of abuse are relevant to provocation.

Thus Lara may have her domestic situation taken into account by the courts. The final element is the objective test and for the defence of provocation to succeed the courts must be convinced that a reasonable person would have been provoked and also that the reasonable person would have reacted in the same way as the defendant did. The reasonable man since the development of case law, now must be attributed not only the age and sex of the defendant but also any permanent characteristic which is connected to the provocation; R v Newell 1980.

Since the cases of Kiranjit Ahluwalia and Sarah Thornton BWS will also be considered as a relevant characteristic. Thus because Lara was subjected to years of physicals and mental abuse she can possibly argue that she has BWS which effected her conduct. It is there for advised that Lara will possibly escape liability of murder and her liability will be reduced to that of Voluntary manslaughter provided the jury is able to find all three elements fulfilled for provocation.

In this instance the mandatory life sentence would not apply and the judge will use his/her discretion in sentencing. a) Thinking about if Lara was in the kitchen at the time carving a loaf of bread, at which time she was beaten by her husband she could plead self-defence, which could lead to an acquittal, however this would be at the discretion of the judge. b) Had Lara's husband not died then her liability would lie in Actual Bodily Harm under the Offences Against the Person Act 1861.