Dawes & Ors v R.

A trial judge must leave the statutory loss-of-control defence to the jury where, on a commonsense assessment of all the evidence, a properly directed jury could reasonably conclude that each statutory ingredient may be satisfied. Disputed evidence which could be accepted in the defendant’s favour must not be rejected at that stage.

The loss of control need not be sudden and may result from the cumulative impact of events. The qualifying triggers require objective assessment. A defendant’s own assertion that circumstances were extremely grave or that he was seriously wronged is insufficient. Incitement disqualifies a trigger only where it was intended to provide an excuse or opportunity for violence. Loss of control remains distinct from self-defence.

Three defendants appealed convictions for murder from the Crown Courts at Lewes, Sheffield and Cardiff. Each appeal raised questions about the statutory loss-of-control defence under the Coroners and Justice Act 2009.

• Dawes advanced self-defence at trial. The judge declined to leave loss of control as an alternative.
• Hatter advanced accident. The judge also declined to leave loss of control.
• Bowyer relied on loss of control at trial. The jury rejected it, and he challenged the directions and the fairness of the summing up.

The common issue was whether there was sufficient evidence for loss of control to be left to the jury, and whether the statutory qualifying triggers and related directions had been correctly approached.

1. All three appeals were dismissed. Under Coroners and Justice Act 2009, section 54(6), the judge must decide whether a properly directed jury could reasonably conclude that the defence might apply. This requires a commonsense assessment of all the evidence. The judge must allow for the jury accepting evidence favourable to the defendant and rejecting evidence favourable to the prosecution. If sufficient evidence exists for all three ingredients, the defence must be left, irrespective of the parties’ forensic choices.

2. The first ingredient may be proved by a loss of control arising from the cumulative impact of earlier events. It need not be sudden. The statutory qualifying triggers nevertheless limit the defence. Whether circumstances were extremely grave and whether a sense of being seriously wronged was justifiable require objective assessment by the judge and, if the defence is left, by the jury.

3. Section 55(6)(a) and (b) disqualify a defendant who incites, encourages or manufactures a situation for the purpose of creating an excuse to use violence. Mere bad behaviour, provocation of trouble or participation in events does not itself disapply the triggers. The earlier provocation decision in Johnson [1989] 1 WLR 740 had diminished but continuing relevance under the new statute.

4. Loss of control is distinct from self-defence and the two must not be elided. Self-defence is a complete defence if reasonable force was used. Loss of control is concerned with a fear of serious violence and, if established, reduces murder to manslaughter. Ordinarily, a jury should consider loss of control after rejecting self-defence.

5. In Dawes’s case, there was no sufficient evidence that he lost self-control. In Hatter’s case, the breakdown of a relationship did not, on the evidence, amount to circumstances of an extremely grave character or create a justifiable sense of being seriously wronged. Such a breakdown will not normally satisfy section 55(4), although circumstances may vary. In Bowyer’s case, a burglar could not derive a justifiable sense of being seriously wronged from the householder’s reasonable response to the burglary. There was also no evidence of loss of control. The summing up fairly reflected the evidence.

• Court of Appeal (Criminal Division): dismissed the three conviction appeals: [2013] EWCA Crim 322.
• Lewes Crown Court: Dawes was convicted of murder and sentenced to life imprisonment with a 15-year minimum term.
• Sheffield Crown Court: Hatter was convicted of murder and sentenced to life imprisonment with a 25-year minimum term.
• Cardiff Crown Court: Bowyer was convicted of murder and sentenced to life imprisonment with a 30-year minimum term.