independent

Thursday 17 April 2014

From murder to manslaughter

The grisly 'Scissor Sisters' case highlights the complex legal issues jurors must face

THE Scissor Sisters are an American pop band who sprang from the backroom bars of New York's East Village.

They were virtually unknown until two years ago when they "stamped their stilettos" and carved up the Irish and British pop scene.

The gay frolics of the all-American pop stars lie in stark contrast to the drink and drugs-fuelled frenzy that resulted in the death of a Kenyan man whose dismembered and headless body was pulled from the Royal Canal last year.

It is unfortunate, even crass, that Charlotte and Linda Mulhall, the Dublin siblings found guilty of killing Farah Swaleh Noor, have earned themselves the moniker the 'Scissor Sisters'. But the nickname captures the essence of a crime too grisly for words.

The trial of Charlotte and Linda Mulhall reads like the script for a nightmarish American crime movie. A mother, now missing, alleges she was repeatedly abused by her boyfriend. The assaults are serious stuff. She attends hospital and complains to gardai.

After a night out drinking and taking Ecstasy, the boyfriend makes a pass at one of her daughters. He is persistent and has a violent history, including rape. The mother, who crushed up an Ecstasy tablet and spiked her boyfriend's drink so that he be on the same "buzz", tires of his conduct.

"Please just kill him for me," she says. Charlotte obliges (a pathology report indicates that the boyfriend is stabbed more than 20 times). Linda later tells gardai that she hit the victim with a hammer after her sister cut his throat with a stanley blade.

What next mam, the girls ask as they ponder Noor's lifeless corpse? "Just cut him up," she says. And so they do. Linda and Charlotte Mulhall take it in turns to decapitate and dismember their mother's lover.

Chopping a body to bits is laborious work: they spend several hours sawing up the body with a bread knife and hammer before taking several trips to the Royal Canal to dispose of it. Sports bags conceal the horror from passers-by.

Afterwards, the trio take the severed head (the penis is still missing) on a bus trip to Tallaght where it is buried in a park. But something tells Linda to go back. She does, moving the head to another location before bringing it in her son's schoolbag to a remote field in Tallaght. She kisses the bag and tells her mam's boyfriend that she is sorry.

This is not fiction and it is not America. This is Dublin and it happened for real. Civilised society, Dostoevsky said, is judged by the way it treats its criminals. The cliche is usually trotted out to complain about prison conditions, but what about the way criminals are treated before they get there?

Killers, and the different types of them, are vexing Irish juries who seem increasingly incapable of returning a murder verdict. The trial of Charlotte and Linda Mulhall is a case in point.

While the jury did return a murder verdict against Charlotte Mulhall and found her older sister Linda guilty of manslaughter, they did so only after a mammoth four-day deliberation. Twice, the jury asked the judge for definitions of provocation and self-defence, prompting widespread speculation that both women would be acquitted.

Traditionally, Irish juries are reluctant to convict for murder. They're a sympathetic lot but there is now a real concern that juries are clinging on to the strict murder/manslaughter distinction as a way of expressing their sympathy for the circumstances which lead to some killings.

In most murder trials, the killing itself is not contested. What is at issue is whether or not the person intended to kill their victim - herein lies the crucial difference between murder and manslaughter.

And juries are being helped by a raft of legal defences that have the potential to reduce murder to manslaughter. Provocation is fast becoming a favourite with defendants.

Provocation and its first cousins self-defence and reasonable force matter because of their ability to reduce murder, which carries a mandatory life-sentence, to one of manslaughter which carries a sliding scale of sentences.

More and more murder trials are turning on the issue of provocation and the question of whether an accused person lost control when they shot/axed/battered to death their victim/tormentor/attacker.

The strict murder/manslaughter distinction yields some anomalies. A serial killer is treated in the same manner as someone who carry out a crime of passion or someone who helps a terminally-ill loved one to die. That, to many, seems unfair. So what can we do?

The Law Reform Commission is looking for answers. It is studying the possibility of devising a new internal classification for murder. The commission is contemplating an American-style system with categories of unlawful killings that help juries to give weight to a particular crime and judges a better way of sentencing.

In Britain, they have made moves towards this concept. The government there recently published 'Sentencing Manslaughter by Reason of Provocation' guidelines and two years ago it introduced statutory sentencing guidelines in murder cases.

This divides murder into three categories with identifiable sentencing ranges, the lowest of which can adapt to take into account aggravating or mitigating factors.

Maybe the Irish public would never wear such an innovation, but without a more flexible regime, it is fruitless complaining that some killers are getting away with murder.

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