Jaden Drake & Anor v R

Under sections 54 and 55 of the Coroners and Justice Act 2009, the judge must rigorously and sensibly assess all the evidence and ask whether a properly directed jury could reasonably conclude that loss of control might apply. The statutory components must be considered separately and sequentially. Evidence may come from a co-accused or another witness, but disputed evidence a jury could reasonably accept must not be rejected at the threshold. An assertion of loss of control, inability to recall, emotionality or ferocity is not necessarily sufficient without more. Loss of control and self-defence are distinct and may both be left to the jury. A higher knife-related starting point under Schedule 21 requires proof of the statutory conditions to the criminal standard.

Following a jury trial at the Crown Court at Chelmsford, Jaden Drake and Igors Andersons were convicted of murder on 31 May 2022 and sentenced on 12 August 2022. Drake received life imprisonment with a 20-year minimum term, and Andersons received custody for life with an 18-year minimum term.

Leave to appeal conviction was granted on the issue whether the partial defence of loss of control should have been left to the jury. Both appellants also challenged sentence, principally the use of the 25-year starting point under paragraph 4(1) of Schedule 21 to the Sentencing Act 2020. The central issues were whether the evidence crossed the statutory threshold and whether there was sufficient evidence that either appellant had brought the knife to the scene.

1. Convictions: The appeals against conviction were refused. The approach under sections 54 and 55 of the Coroners and Justice Act 2009 requires a rigorous, common-sense assessment of all the evidence. The judge acts as gatekeeper, not as the tribunal of fact, and must ask whether a properly directed jury could reasonably conclude that the defence might apply. The three statutory components must be assessed separately and sequentially.
2. Sufficient evidence may arise from any part of the case, including evidence from a co-accused or the prosecution. The absence of a positive assertion by the defendant is not decisive. However, phrases describing loss of control, an inability to recall events, or a ferocious attack do not necessarily provide sufficient evidence without more. A judge must not reject disputed evidence which a jury could reasonably accept.
3. Loss of control and self-defence are distinct, although their factual bases may overlap. Raising loss of control does not concede that force used in self-defence was excessive. If both matters are left, the jury should consider self-defence first and loss of control only if self-defence is rejected. This was significant general guidance, but was not necessary to the conclusion on the evidence.
4. On the evidence taken at its highest, Andersons deliberately picked up the knife to prevent further use by the deceased and described the ensuing struggle as self-defence. His inability to recall the blows, his descriptions of waking or becoming conscious again, and Drake’s account that he appeared frightened or emotional did not amount to sufficient evidence of loss of control. The trial judge was therefore correct not to leave the issue to the jury.
5. Sentences: The appeals against sentence were allowed. The 25-year starting point under paragraph 4(1) of Schedule 21 to the Sentencing Act 2020 required the judge to be sure that the relevant offender had brought a knife to the scene intending to commit an offence and that it was used in the murder. The knife was unrecovered, and the evidence that Andersons had earlier placed an unidentified object in his waistband was insufficient. The judge had not found that Drake brought the knife. The proper starting point was therefore 15 years. The original sentences were quashed and minimum terms of 17 years for Drake and 15 years for Andersons were imposed, each reduced by 269 days served.

• Court of Appeal (Criminal Division) — Conviction appeals refused and sentence appeals allowed. The original sentences were quashed and new minimum terms imposed: [2023] EWCA Crim 1454.
• Crown Court at Chelmsford — The appellants were convicted of murder on 31 May 2022 and sentenced on 12 August 2022 to minimum terms of 20 years and 18 years respectively.