R v EE

The partial defence of loss of control must be considered sequentially under section 54 of the Coroners and Justice Act 2009. If there is insufficient evidence that the defendant lost self-control, the judge need not consider a qualifying trigger or the objective response requirement.

The judge must make a rigorous, common-sense assessment of all the evidence on its most favourable reading for the defendant. A bare assertion of loss of control does not necessarily suffice. The defence must be withdrawn where the evidential basis is insufficient.

When fixing a minimum term for murder, the statutory starting point may be increased to reflect the particular seriousness and aggravating features of the offence. Realistic mitigation must nevertheless be given sufficient weight.

The appellant was convicted at the Crown Court at Chelmsford, before HHJ Morgan, of murdering his wife on 1 June 2022. The jury rejected diminished responsibility. The judge had ruled that there was insufficient evidence to leave loss of control to the jury. He imposed life imprisonment with a minimum term of 25 years, less time on remand.

The appellant renewed his application for permission to appeal against conviction. He contended that loss of control should have been left to the jury. He also appealed his minimum term as manifestly excessive. The central issues were whether there was sufficient evidence of loss of self-control and whether the sentencing judge had fixed an excessive minimum term.

1. The renewed application for permission to appeal against conviction was refused. The appeal against sentence was allowed to the limited extent that the minimum term was reduced from 25 years to 21 years, less 506 days spent on remand.

2. Section 54 requires the court to address sequentially loss of self-control, a qualifying trigger, and the objective response requirement. Applying R v Gurpinar [2015] EWCA Crim 178, the court held that an absence of sufficient evidence on the first element made it unnecessary to consider the other two.

3. The trial judge had made the required rigorous and common-sense assessment of the evidence in the appellant’s favour. The appellant’s bare assertion to medical experts, his failure to assert loss of control in interview or evidence, the earlier alleged abuse, the injury to the child, and the circumstances of the attack did not provide a sufficient evidential basis for loss of self-control. The judge was therefore bound to withhold the partial defence from the jury.

4. R v Turner [2023] EWCA 1626 provided no assistance. It was fact-dependent, did not add to the established legal principles, and the suggested similarities did not undermine the judge’s assessment of the evidence.

5. On sentence, the court accepted that the domestic setting, prior mental abuse, the intention to provoke, and the intention to kill justified a marked increase from the 15-year starting point in Schedule 21. A judge may set a higher minimum term where the seriousness of the individual case warrants it. However, insufficient weight had been given to the marital tensions affecting the appellant, the finding that the deceased may have inflicted the first blows, and the injuries for which he required hospital treatment. The 25-year term was manifestly excessive and was quashed.

• Court of Appeal (Criminal Division): renewed permission to appeal against conviction refused; appeal against sentence allowed to the extent of substituting a 21-year minimum term, less 506 days on remand.
• Crown Court at Chelmsford: EE was convicted of murder following trial before HHJ Morgan (case no T20227099) and sentenced to life imprisonment with a 25-year minimum term, less time on remand.