Rejmanski, R v

For the loss of control defence under Coroners and Justice Act 2009, each statutory component requires separate consideration. The objective limb requires comparison with a person of the defendant’s age and sex who has a normal degree of tolerance and self-restraint.

A mental disorder may form part of the defendant’s circumstances where it has a relevant effect beyond general tolerance or self-restraint, such as its effect on the gravity of a qualifying trigger. It cannot, however, be used to lower the statutory objective standard, even where it is relevant at another stage of the defence. Mental disorder that substantially impairs self-control may instead be addressed through diminished responsibility.

The court heard together appeals arising from two murder trials. Rejmanski, convicted at the Central Criminal Court, argued that post-traumatic stress disorder should have been expressly included among his circumstances for the loss of control defence. Charice Gassman, convicted at Bristol Crown Court, made the equivalent argument in relation to emotionally unstable personality disorder. Her sister, Amberstasia Gassman, had been convicted of manslaughter and challenged her sentence.

The common issue was the extent to which mental disorder may be taken into account as part of the defendant’s circumstances under section 54(1)(c) of the Coroners and Justice Act 2009.

1. The court dismissed Rejmanski’s conviction appeal and refused Charice Gassman permission to appeal against conviction. It granted Charice Gassman leave to appeal against sentence but dismissed that appeal, and refused Amberstasia Gassman permission to appeal against sentence.

2. The three elements of loss of control under section 54(1) of the Coroners and Justice Act 2009 are distinct. Their application to mental disorder is fact-sensitive. Under section 54(1)(c), the comparator has a normal degree of tolerance and self-restraint. Section 54(3) therefore excludes a disorder insofar as its relevance is to reduce the defendant’s general capacity for those qualities.

3. The exclusion remains effective even if the disorder is relevant elsewhere. A disorder may be taken into account where it has another relevant effect, most obviously on the gravity of a qualifying trigger. It may not then be used indirectly to give the statutory comparator an abnormal degree of tolerance or self-restraint. The statutory scheme is reinforced by diminished responsibility under section 2 of the Homicide Act 1957, as amended, where a recognised medical condition substantially impairs self-control.

4. In Rejmanski’s case, the judge’s directions allowed the jury to consider his military service, its effects on him, and the alleged taunts when deciding whether there was a qualifying trigger. PTSD could not be used to dilute the objective standard. The directions, read as a whole, were sufficient and the conviction was safe.

5. Charice Gassman’s disorder was relevant to her general inability to regulate emotion and exercise self-control. Nothing done or said by the deceased was directly referable to the disorder, earlier abuse, the death of her step-grandfather, or cannabis withdrawal. The judge correctly excluded the disorder only insofar as it bore on her general capacity. Diminished responsibility was the appropriate route for the asserted impairment.

6. On Amberstasia Gassman’s sentence appeal, the court applied R v King [2017] EWCA Crim 128. Where a verdict permits more than one factual interpretation, the sentencing judge may determine the basis for sentence to the criminal standard; if unsure, the judge must adopt the interpretation most favourable to the defendant. The evidence supported the finding that she knew of the knife and of her sister’s intended violence, although the jury had not found that she shared the intent for murder.

• Court of Appeal (Criminal Division): In [2017] EWCA Crim 2061, dismissed Rejmanski’s conviction appeal; refused Charice Gassman permission to appeal against conviction; dismissed Charice Gassman’s sentence appeal after granting leave; and refused Amberstasia Gassman permission to appeal against sentence.
• Central Criminal Court: HHJ Topolski QC convicted Rejmanski of murder.
• Crown Court at Bristol: HHJ Cottle convicted Charice Gassman of murder and Amberstasia Gassman of manslaughter, and sentenced them respectively to life imprisonment with a 19-year minimum term and 12 years’ imprisonment.