Legal Update: March 2015
R v Mustafa Gurpinar, R v Nii-Azu Kojo-Smith & Another [2015] EWCA Crim 178
The Court of Appeal considered the defence of loss of control in the appeals of two young offenders (G and K) who appealed against their convictions for murder. Both appeals were refused.
Details
G, aged 14 at the time of the offence, had stabbed another 14-year-old boy during a fight. K, 17 at the time, had stabbed a 24-year-old man during a clash between two groups of young men in a shopping centre.
This judgment explored the extent of the new partial defence of loss of control (section 54 and 55 Coroners and Justice Act (CJA) 2009), which replaced the defence of provocation (with effect from 4 October 2010).
The judgment suggests the evidential hurdle is a relatively high one. The three principal elements of the defence under section 54(1) CJA are: (a) the killing had to have resulted from the defendant’s loss of self-control; (b) the loss of self-control had a qualifying trigger; and (c) a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in a similar way. The components had to be analysed sequentially and separately; if a component was absent, the defence failed (R. v Clinton (Jon-Jacques) [2012] EWCA Crim 2).
In G’s case, there was independent witness evidence that G might have been in fear of violence. However, the court found there was no evidence that such fear had resulted in a loss of self-control. In K’s case, the trial judge had found there was evidence of a qualifying trigger but there was no loss of self-control. The Court of Appeal found no reason to disagree with the judge’s analytical assessment.
Commentary
The judgment suggests the evidential hurdle for young defendants seeking to rely on this defence is a high one. On one view, the court was reluctant to allow the defence of ‘loss of control’ to be used in situations where young people carry or use knives for their own protection.