R v Lea Rose Cheng

For the partial defence of loss of control under section 54(1) of the Coroners and Justice Act 2009, the three statutory components must be considered sequentially and separately. A trial judge acts as gatekeeper and must rigorously assess the weight and quality of all the evidence before leaving the issue to the jury. Speculation cannot satisfy that evidential threshold. A frenzied attack is neither a necessary nor determinative indicator of loss of control. A viable issue of self-defence does not necessarily establish a loss-of-control issue. If the first component is unsupported by sufficient evidence, the remaining components need not be considered.

The appellant was convicted of murder at the Crown Court at Liverpool on 4 September 2023 and sentenced to life imprisonment with a minimum term of 16 years, less 541 days spent on remand. She appealed against conviction with leave of the single judge.

The trial judge left self-defence and diminished responsibility to the jury but refused to leave loss of control. The appellant argued that circumstantial evidence, including injuries, possible sexual contact, post-event distress and memory loss, was sufficient to require consideration of the partial defence. The central issue was whether the evidence met the statutory threshold and whether the judge had exceeded the proper gatekeeper role.

1. Appeal dismissed. The court, giving judgment through Lady Justice Macur, upheld the trial judge’s refusal to leave loss of control to the jury.
2. Section 54(1) of the Coroners and Justice Act 2009 requires the three components of loss of control to be analysed sequentially and separately. Following the approach in R v Gurpinar [2015] EWCA Crim 178, insufficient evidence of loss of self-control means that the qualifying trigger and the required comparator reaction need not be considered.
3. The trial judge is a gatekeeper, not merely a conduit for speculative possibilities. The judge must make a vigorous, common-sense assessment of the weight and quality of all the evidence before deciding whether the evidential burden is met. The court applied the guidance in R v Clinton [2012] 3 WLR 515, R v Jewell [2014] EWCA Crim 414 and R v Skilton [2014] EWCA Crim 154. A defensive summing-up should not invite the jury to consider issues that do not arise on the evidence.
4. The injuries did not establish a frenzied attack. That description was imprecise and, in any event, a frenzied attack was not determinative. The living-room damage was insignificant, the appellant’s character did not demonstrate loss of control, and her post-event distress was reactive rather than predictive of her state of mind before the stabbing.
5. There was circumstantial evidence of sexual contact, but no evidence that it was non-consensual or when it occurred. The proposed sexual-assault scenario therefore remained speculative. Genuine memory loss did not convert speculation into evidence of loss of control.
6. Self-defence and loss of control can arise on the same facts, but a viable issue of self-defence does not necessarily carry a loss-of-control issue: see R v Goodwin [2018] EWCA Crim 2287 and R v Jovan [2017] EWCA Crim 1359. The judge was entitled to leave self-defence while refusing to leave loss of control.

1. Court of Appeal (Criminal Division): On 25 October 2024, the appeal against conviction was dismissed: [2024] EWCA Crim 1400.
2. Crown Court at Liverpool: The appellant was convicted of murder on 4 September 2023 and sentenced on 8 September 2023 by HHJ Flewitt KC to life imprisonment, with a minimum term of 16 years less 541 days spent on remand.