Gurpinar v R

The partial defence of loss of control under sections 54 and 55 of the Coroners and Justice Act 2009 is self-contained. Repealed provocation authorities will rarely assist. A judge must leave the defence only where, after a rigorous assessment of all the evidence, there is sufficient evidence on which a properly directed jury could reasonably conclude that each statutory component might apply.

The assessment proceeds sequentially. The judge may assume that the jury could accept disputed evidence favourable to the defendant, but must assess its quality and weight. Anger, fear, a rapid assault, or a qualifying trigger do not alone establish a loss of self-control. The objective requirement concerning a person with normal tolerance and self-restraint is a substantial and independent hurdle.

Two appellants challenged murder convictions from the Central Criminal Court on the ground that the trial judge should have left the statutory partial defence of loss of control to the jury.

Gurpinar, aged 14 at the time, fatally stabbed another youth during a confrontation in a park. His trial case was accident, self-defence and lack of intent. Kojo-Smith, aged 17 at the time, fatally stabbed Woodards during violent disorder in a shopping centre. His trial case was self-defence. Neither appellant gave evidence that he had lost self-control.

The court also determined Tony Caton’s renewed applications for leave to appeal his convictions for violent disorder and concurrent three-year sentences. The central issue in the murder appeals was whether there was sufficient evidence that the statutory defence of loss of control might apply.

1. The murder appeals were dismissed. Sections 54 and 55 of the Coroners and Justice Act 2009 provide a self-contained defence. The former common-law defence of provocation was abolished. The court followed the statutory approach explained in R v Clinton and others [2012] EWCA Crim 2 and R v Dawes [2013] EWCA Crim 322.
2. A trial judge must consider the whole evidence, even if loss of control is not advanced by the defence. The judge must assess the three statutory components separately and sequentially: loss of self-control, a qualifying trigger, and the objective reaction requirement. The judge must proceed on the basis that the jury may accept disputed evidence favourable to the defendant. However, “sufficient evidence” requires a rigorous assessment of its weight and quality. If there is insufficient evidence of loss of self-control, the other components need not be decided.
3. There was no sufficient evidence that Gurpinar’s killing resulted from a loss of self-control. The video and his messages showed a deliberate knife attack, while his earlier messages undermined any inference that the conduct was atypical. Even assuming that he feared violence, there was no evidential basis for a jury to find the first component. There was also no sufficient evidence that a person of his age and sex, with normal tolerance and self-restraint, might have reacted similarly.
4. There was likewise no sufficient evidence that Kojo-Smith had lost self-control. The court accepted that there was evidence capable of suggesting a qualifying trigger, but anger and a fast-moving confrontation did not establish the first component. The trial judge was entitled to regard the evidence, including Kojo-Smith’s account, as showing deliberate and purposeful conduct. It was unnecessary to determine the third component, although it would have presented substantial difficulty.
5. Caton’s applications for leave to appeal were refused. Kojo-Smith’s previous conviction had no substantial probative value on an important issue between co-defendants. It was dissimilar and added little to the extensive evidence of aggression. Caton’s convictions were safe. His concurrent three-year sentences for serious public violent disorder were neither disparate nor manifestly excessive.

• Court of Appeal (Criminal Division) — dismissed Gurpinar’s and Kojo-Smith’s appeals against murder convictions, and refused Caton’s renewed applications for leave to appeal conviction and sentence: [2015] EWCA Crim 178.
• Central Criminal Court — Gurpinar was convicted of murder on 29 June 2012. Kojo-Smith was convicted of murder on 4 April 2014 after a retrial. Caton was convicted on 4 April 2014 of two counts of violent disorder and sentenced to concurrent terms of three years’ imprisonment.