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R v Gurpinar; R v Kojo-Smith and Caton

[2015] EWCA Crim 178; [2015] 1 Cr App R 31

“Loss of control” under ss. 54 and 55 of the Coroners and Justice Act 2009

Facts

Mr Gurpinar and Mr Kojo-Smith were convicted of murder. Mr Gurpinar claimed self-defence, accident and lack of intent to cause serious injury, while Mr Kojo-Smith only relied on self-defence. Neither defendant claimed loss of control. The defendants appealed their convictions.

Issue

The partial defence of loss of control, as set out in ss. 54 and 55 of the Coroners and Justice Act 2009, consists of three components: (i) the killing must have resulted from the defendant’s loss of control, (ii) loss of control had to have a qualifying trigger, and (iii) a person of the defendant’s age and sex, with a normal degree of tolerance and self-restraint and in his circumstances might have reacted in a similar way to the defendant. The defence only applies if all three components are present. Under s. 54(5) of the Act, if “sufficient evidence” is adduced to raise loss of control, the jury should assume that the defence is satisfied unless the prosecution proves that it is not. Sufficient evidence is adduced under s. 54(5) if there is “evidence on which a reasonable jury properly directed could conclude that [the defence] might apply” (at [8]). The defendants argued that there was sufficient evidence to suggest loss of control and that it should have thus been left to the jury.

Held

The partial defence of loss of control under CAJA 2009 is self-contained and is different from the earlier (now abolished) defence of provocation. Unlike provocation, the judge is notalways required to leave loss of control to the jury. However, the judge, assisted by the advocates, has to consider whether, based on all evidence, the defence arises – regardless of whether it was raised by the defendant and taking into account the weight and quality of the evidence. Only if there is sufficient evidence (of all components) of loss of control, must the judge leave the defence of loss of control to the jury.


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