Qualifying loss of self control
The defendant appealed from his conviction for murder saying that, being attacked with a hammer by the now deceased, he had taken it and hit the victim with it, having lost his self control. He said that the court had not allowed that he had brought sufficient evidence of that loss acting as a qualifying trigger, to put the defence to the jury.
Held: The appeal was dismissed. The judge’s application of the first two stages may had faults, but his overall conclusion was correct. The statutory defence arose when the defendant was in fear of serious violence, and a defence of self defence need not of itself amount to a qualifying loss of control.
‘We think that in a case of this kind there are a number of general considerations which need to be borne in mind which we should list. In doing so, we do not proffer this list as being necessarily an exhaustive list of the kinds of points that a trial judge, where such an issue arises, will need to bear in mind.
(i) The required opinion is to be formed as a common sense judgment based on an analysis of all the evidence.
(ii) If there is sufficient evidence to raise an issue with respect to the defence of loss of control, then it is to be left the jury whether or not the issue had been expressly advanced as part of the defence case at trial.
(3) The appellate court will give due weight to the evaluation (‘the opinion’) of the trial judge, who will have had the considerable advantage of conducting the trial and hearing all the evidence and having the feel of the case. As has been said, the appellate court ‘will not readily interfere with that judgment’.
(4) However, that evaluation is not to be equated with an exercise of discretion such that the appellant court is only concerned with whether the decision was within a reasonable range of responses on the part of the trial judge. Rather, the judge’s evaluation has to be appraised as either being right or wrong: it is a ‘yes’ or ‘no’ matter.
(5) The 2009 Act is specific by section 54(5) and (6) that the evidence must be ‘sufficient’ to raise an issue. It is not enough if there is simply some evidence falling short of sufficient evidence.
(6) The existence of a qualifying trigger does not necessarily connote that there will have been a loss of control.
(7) For the purpose of forming his or her opinion, the trial judge, whilst of course entitled to assess the quality and weight of the evidence, ordinarily should not reject evidence which the jury could reasonably accept. It must be recognised that a jury may accept the evidence which is most favourable to a defendant.
(8) The statutory defence of loss of control is significantly differently from and more restrictive than the previous defence of provocation which it has entirely superseded.
(9) Perhaps in consequence of all the foregoing, ‘a much more rigorous evaluation’ on the part of the trial judge is called for than might have been the case under the previous law of provocation.
(10) The statutory components of the defence are to be appraised sequentially and separately; and
(11) And not least, each case is to be assessed by reference to its own particular facts and circumstances.’
Davis LJ, King, May JJ
[2018] EWCA Crim 2287, [2018] WLR(D) 667
Bailii, WLRD
Coroners and Justice Act 2009 54 55
England and Wales
Crime
Updated: 31 October 2021; Ref: scu.628205