Asmelash v R

Under section 54(1)(c), read with section 54(3), of the Coroners and Justice Act 2009, voluntary intoxication is excluded from the defendant’s circumstances where its only relevance is to reduce general tolerance or self-restraint. Parliament did not displace the established rule against relying on self-induced intoxication without clear words.

Drinking does not itself bar a loss of control defence. The statutory comparison is instead made with a sober person of the defendant’s sex and age who has normal tolerance and self-restraint and the legally relevant circumstances. In self-defence, reasonableness and proportionality are assessed against the threat or violence as the defendant perceived it.

After a day of drinking with the deceased, Dawit Asmelash stabbed him twice during an altercation at their shared accommodation. He was convicted of murder at Teesside Crown Court on 5 March 2012 and was sentenced to life imprisonment with a minimum term of 15 years.

He appealed on the ground that the trial judge wrongly directed the jury to consider the loss of control defence by reference to a person unaffected by alcohol. He also renewed an application to challenge the self-defence direction. The central issue was whether voluntary alcohol consumption was part of the defendant’s circumstances for the objective limb of the loss of control defence under the Coroners and Justice Act 2009.

1. Appeal dismissed. The trial judge was entitled to direct the jury to assess the loss of control defence without reference to the appellant’s voluntary intoxication.

2. Section 54(1)(c) of the Coroners and Justice Act 2009 requires comparison with a person having normal tolerance and self-restraint in the defendant’s relevant circumstances. Section 54(3) excludes circumstances whose only relevance is their effect on the defendant’s general capacity for tolerance or self-restraint. Self-induced drunkenness which has no other relevance falls within that exclusion.

3. The established criminal-law rule is that voluntary intoxication does not provide a defence, save for its limited possible relevance to proof of the required intent. Nothing in the loss of control provisions indicated a parliamentary intention to change that rule. The court applied the reasoning in R v Dowds [2012] 1 Cr. App R 34, which treated the entrenched rule against reliance on voluntary intoxication as the backdrop to the new statutory diminished-responsibility formula. The express treatment of drunkenness in section 75(5) of the Criminal Justice and Immigration Act 2008 illustrated that Parliament makes its intention clear when it intends a different approach.

4. The ruling does not remove loss of control from a defendant who has been drinking. The jury must ask whether a sober person in the defendant’s legally relevant circumstances, with normal tolerance and self-restraint, might have reacted in the same or a similar way. The court added illustratively that an alcohol or drug condition could itself form part of the circumstances if merciless taunting about it constituted a qualifying trigger.

5. The self-defence direction, read as a whole, first addressed the appellant’s own perception and then the objective assessment. The jury was properly told not to convict unless sure that his actions were unreasonable and disproportionate to the threat of, or actual, violence as he personally perceived it.

• Court of Appeal (Criminal Division). The appeal against conviction was dismissed. The court upheld the directions on loss of control and self-defence.
• Teesside Crown Court. On 5 March 2012, the appellant was convicted of murder before His Honour Judge Fox QC and a jury. On 6 March 2012, he was sentenced to life imprisonment with a minimum term of 15 years.