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Loss of Control: Judge or Jury?

29/06/2022

This article represents some of my thoughts on the application of the current law of Loss of Control. It is not designed to be a lecture as we will be hosting a series of lectures in our wonderful new building in Ely Place in the Autumn. I am sure that Loss of Control will feature as a topic.

Every murder trial depends on its own unique facts, and it is impossible to predict the circumstances in which the partial defence of Loss of Control will be left for the jury to consider. It is a partial defence in murder trials because, if successful, it reduces a conviction for murder to a conviction for manslaughter.

In practise, once all the evidence has been heard, the trial judge must decide whether there is sufficient evidence to leave the partial defence for the jury to consider. It is an important stage of the trial because in some cases Loss of Control may the only defence available. In reality therefore, we cannot sensibly advise our clients in advance of a trial if their defence will even be left, let alone succeed as we have to rely on the subjective views of the trial judge at the conclusion of all the evidence. It has become somewhat of a lottery. One judge may leave the defence on a particular set of facts, whereas another may not.  

Notwithstanding the subjective nature, the judge’s decision is virtually unfettered as the Court of Appeal will only very rarely overturn a conviction for murder on the basis that the judge’s decision was wrong.

At the conclusion of the evidence, the judge expects Counsel to set out in writing why Loss of Control should be left. The Crown responds in writing, often submitting that it does not apply. The judge will then go through the statutory steps and decide upon the following:

  1. Is there sufficient evidence of a loss of control?
  2. Is there sufficient evidence that there was a ‘Qualifying Trigger’
  3. Is there sufficient evidence that a person of the defendant’s age and sex with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same way or in a similar way to the defendant.
What does ‘sufficient evidence’ mean?

A bit of background to put it into context. Please note the bold text. Loss of Control was introduced to replace the old law of Provocation which provided a partial defence in Murder cases. Section 3 of the Homicide Act 1957 provided that;

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

Prior to the enactment of The Coroners and Justice Act 2009, The Law Commission noted:

“Under the existing law, the judge must put the defence to the jury whenever there is evidence that the defendant (“D”) was provoked to lose self-control, however, unlikely the defence is to succeed. The judicial obligation was probably not intentionally created by Parliament when the doctrine of provocation was reformed in 1957. The current position does not serve the interests of justice because the need to put the defence to the jury in these circumstances increases the likelihood that an unmeritorious claim may succeed. The current position may not even serve the interests of every D. Even if there is evidence of a loss of self-control, D may not want the jury side-tracked by a partial defence if his or her main claim is for complete acquittal.”

Intent on changing the law, Parliament thus introduced the phrase ‘sufficient evidence’ into the 2009 Act.  S54(4). “If sufficient evidence is adduced to raise an issue…on which a jury properly directed could reasonably conclude that the defence might apply”.

Inevitably, in many cases the defence has not been left, and the journey to the Court of Appeal has become a well-trodden path. Case law is plentiful but the principal authority on the issue of ‘sufficient evidence’ is R v Gurpinar, [2015] EWCA Crim178 in which Lord Thomas CJ gave judgement.

At para 12 he said; “…a judge needs to proceed on the premise that the jury may take a different view of the evidence to that which the judge may have found. The judge must therefore approach the analysis of the evidence on that basis, as is emphasized in the passage from Clinton which we have set out. However, as the Act refers to “sufficient evidence”, it is clearly the judge’s task to analyse the evidence closely and be satisfied that there is, taking into account the whole of the evidence, sufficient evidence in respect of each of the three components of the defence. The judge is bound to consider the weight and quality of the evidence in coming to a conclusion: see R v Jewell [2014] EWCA Crim 414 at paragraphs 51-54. 

Lord Thomas CJ also considered the views of Professor David Ormerod who provided his opinion. R v Gurpinar, Para 14;

Therefore we agree with the views of Professor David Ormerod, which were set out at paragraph 14 of a paper entitled Loss of Control (June 2014, Judicial College) and put before us in argument that a trial judge must undertake a much more rigorous evaluation of the evidence before the defence could be left to the jury than was required under the former law of provocation. 

The approach of judges was then set out in Para 16 of Gurpinar;

A judge must then in that assessment have regard to the three components of the defence of loss of control under the Act (and not the former law), undertake a rigorous evaluation of the evidence against those components and set out the conclusion in a reasoned ruling. Provided that is done, bearing in mind the advantages a trial judge has over an appellate court, an appellate court will accord to a reasoned decision of a trial judge (examining the components of the defence of loss of control) the ambit of judgment in the evaluation of the evidence that is open to the judge when making a decision based on that evaluation. In such circumstances, an appellate court will not readily interfere with that judgment. 

So, the requirement moved from ‘evidence’ to ‘sufficient evidence’, to a ‘close analysis of the evidence’, to a ‘much more rigorous evaluation’ than provocation [where there was seemingly no analysis], to a ‘rigorous evaluation’. 

In my experience, some judges appear to embark upon a critical analysis of the evidence, weighing up the strengths and weaknesses to consider if there is any evidence to rebut a defendant’s assertions.  If there is, the judge often decides the defence does not apply, and if the judge provides a reasoned decision, the Court of Appeal will not readily interfere.

Judges must therefore have regard to the three components of the defence of Loss of Control and undertake a rigorous evaluation of the evidence against those three components of;

(i)         whether there was a loss of control,

(ii)        whether that loss of control was attributable to a qualifying trigger and

(iii)       whether a person of the defendant’s age and sex with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have acted in the same or similar way.

Loss of Control

There is no legal or factual definition as what amounts to a loss of control. It relies purely on an interpretation of the facts of the particular case. Many cases have been decided by the Court of Appeal but still no clear picture has emerged.

We, as advocates, may think that where a man stabs someone 20 times in a frenzied attack we would inevitably submit that there was sufficient evidence of loss of control. However, the judge may take a different view, especially if there is some evidence of a prolonged attack or a second weapon being used, or if all the injuries were inflicted in one area for example the heart, or  even if in different areas of the body, giving rise to a suggestion that the victim was trying to get away.

These are factual matters that I suggest should ordinarily be left for a jury to consider. No doubt they would be addressed by the Crown in a closing speech and the jury can reach their own conclusions based on their collective common sense and experience of life and behaviour of people.

An assertion by a defendant in evidence that he lost his self control may be interpreted as a loss of temper; the ‘red mist coming down’ may be interpreted as a rage rather than a loss of control. An assertion on its own is unlikely to amount to sufficient evidence.

Judges will look very closely at what a defendant said at the time, in the immediate aftermath and in interview before reaching a decision.

I accept that an analysis of the evidence is required, but is there a danger that a rigorous evaluation becomes a critical evaluation and trespasses into the function of a jury?

Qualifying Trigger

If the judge decides there is sufficient evidence that a defendant may have lost control, he must go on to consider whether there was a qualifying trigger. In short, that the defendant feared serious violence, whether things were said and/or done which constituted circumstances of an extremely grave character, and whether they caused the defendant to have a justifiable sense of being seriously wronged.

This is open to a very wide interpretation. Again, it is entirely for a judge to conduct a rigorous evaluation before deciding whether there is ‘sufficient evidence’ of a Qualifying Trigger. In doing so, again is there a danger that the judge trespasses into the function of a jury?

Surely the strengths and weaknesses of evidence should be a matter for the jury rather than a judge whose decision will not be overturned by the Court of Appeal because it is a matter of ‘judgement’ rather than ‘discretion’.

A defendant’s age and sex

Finally the judge has to decide whether there is sufficient evidence that a person of the defendant’s age and sex with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same way or in a similar way to the defendant.

It begs the question – How on earth can there ever be evidence of that, let alone ‘sufficient evidence’ following a ‘rigorous evaluation’?

Opinion

In my opinion, the real problem with the application of Loss of Control is that it is a wholly subjective assessment based on a single person’s interpretation of the evidence. That person is an experienced lawyer and judge who has heard it all before. Far better surely to trust the jury and enable them to use their common sense and experience of the world when assessing the facts of the case.

I fully acknowledge that the 2009 Act was passed to introduce a stricter test than applied to cases of Provocation. However, it is becoming increasingly difficult to persuade judges to leave the partial defence for the jury to consider. It begs the question, Has our faith and trust in juries gone?

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