R v Harry Turner

The statutory partial defence of loss of control must be left to the jury where there is sufficient evidence

Sexual infidelity cannot itself be a qualifying trigger under the Coroners and Justice Act 2009, but may form part of the circumstances relevant to the qualifying-trigger and objective elements. A good-character direction, where appropriate, must be tailored to the live issue, including credibility.

The appellant was convicted at Teesside Crown Court of the murder of his wife and sentenced to life imprisonment with a minimum term of 17 years and 120 days. He admitted inflicting the fatal injuries but relied on the partial defence of loss of control, asserting that the deceased had said that he would never see two children for whom they held a Special Guardianship Order.

The trial judge withdrew that partial defence from the jury, holding that there was insufficient evidence on each of its three statutory elements. The judge also declined to give a good-character direction. The appeal concerned whether the evidence was sufficient to require the loss-of-control defence to be left to the jury and whether a credibility direction should have been given.

1. Appeal allowed. The conviction for murder was unsafe because the judge wrongly withdrew the partial defence of loss of control from the jury. The conviction was quashed and a retrial for murder was ordered.

2. Under sections 54 and 55 of the Coroners and Justice Act 2009, the judge must consider separately whether there is sufficient evidence of loss of self-control, a qualifying trigger, and the objective reaction required by section 54(1)(c). The task requires a rigorous evaluation of all the evidence, as explained in R v Dawes [2013] EWCA Crim 322, R v Gurpinar [2015] EWCA Crim 178 and R v Goodwin [2018] EWCA Crim 2287. It remains a yes-or-no statutory question, not a discretionary decision.

3. The judge was entitled to evaluate the quality and weight of the evidence, but should not have resolved factual matters that a jury could properly determine differently. A jury could have drawn inferences favourable to the appellant about the nature of the attack, the use of two knives, the throat wound, the position of the wedding ring, and his demeanour afterwards. Those matters did not conclusively negate loss of control.

4. A jury could also have accepted that the deceased made the alleged threat about the children. In the appellant's circumstances, including his attachment to them, their care needs, and the Special Guardianship Order, the jury could reasonably regard that threat as extremely grave and as causing a justifiable sense of serious wrong. Sexual infidelity could not itself be the trigger, but could be considered as context in accordance with R v Clinton [2012] EWCA Crim 2.

5. The judge further failed to address fully whether a person with normal tolerance and self-restraint, and in all the appellant's circumstances, might have reacted in the same or a similar way. That issue too was for the jury on the available evidence.

6. The court additionally held that the jury should have received a tailored good-character direction on the relevance of the appellant's lack of previous convictions to his credibility. It did not decide whether that error alone would have required the appeal to be allowed.

A fresh indictment was directed under rule 10.8(2) of the Criminal Procedure Rules, with rearraignment within two months. The appellant was to remain in custody unless granted bail by the Crown Court.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the murder conviction, and ordered a retrial: [2023] EWCA Crim 1626.
• Crown Court at Teesside: On 22 February 2023, convicted the appellant of murder and imposed life imprisonment with a minimum term of 17 years and 120 days.