R v Jewell

For the partial defence of loss of control under the Coroners and Justice Act 2009, the trial judge must make a commonsense assessment of the whole evidence when deciding whether a properly directed jury could reasonably find that the defence might apply. That assessment may include the quality and weight of the evidence. A defendant’s bare assertion of loss of control will not by itself meet the evidential threshold.

Substantial deliberation, preparation and coherent conduct before and after a killing may demonstrate continued control. The objective limb also requires the judge to assess whether a person with normal tolerance and self-restraint might have reacted similarly. If sufficient evidence is absent on any statutory component, the partial defence fails.

The appellant was convicted at the Crown Court at Chelmsford of the murder of a work colleague and was sentenced to life imprisonment. He admitted shooting the deceased but denied intending to kill him. He said that intimidation, threats and fear had built up over two weeks until he lost control when he saw the deceased.

The trial judge declined to leave the partial defence of loss of control to the jury. The judge held that the evidence showed a planned and controlled killing, and that there was insufficient evidence of loss of control. The Registrar referred the appellant’s application for leave to appeal against conviction to the Court of Appeal.

The central issue was whether the judge had wrongly assessed the sufficiency, quality and weight of the evidence when withdrawing the statutory partial defence.

1. The referred application was rejected. The conviction for murder was safe.
2. Loss of control means a loss of the ability to act in accordance with considered judgment, or a loss of normal powers of reasoning. Under sections 54(5) and 54(6) of the Coroners and Justice Act 2009, the trial judge must decide whether a properly directed jury could reasonably conclude that the defence might apply. This requires a commonsense judgment based on analysis of all the evidence, consistently with Clinton [2012] 1 Cr.App.R 26.
3. The judge was entitled to consider the evidence’s quality and weight. The statutory threshold requires more than a defendant’s bare assertion that he lost control. The court rejected the contention that this necessarily usurped the jury’s role.
4. On the facts, the preparation over about 12 hours, the firearms and equipment, the journey to the deceased’s home, the shooting without any event at the scene, and the organised escape overwhelmingly showed a planned execution rather than a true loss of control. No properly directed jury could reasonably conclude otherwise.
5. Each statutory component is required. The absence of sufficient evidence on the loss-of-control component was dispositive. The court also upheld, as independently sufficient conclusions, the judge’s assessment that there was no sufficient qualifying trigger and that a person with normal tolerance and self-restraint could not reasonably have reacted in the same or similar way. The latter is an objective assessment for the judge, as stated in Dawes [2013] 2 Cr.App.R 3.

• Court of Appeal (Criminal Division) — The Registrar referred the application for leave to appeal against conviction. The court rejected it and upheld the murder conviction: [2014] EWCA Crim 414.
• Crown Court at Chelmsford — On 13 January 2012, the appellant was convicted of murder and sentenced to life imprisonment. No citation was stated.