R v AZR

For the statutory partial defence of loss of control, the trial judge must make a rigorous, sequential and separate assessment of whether sufficient evidence exists on which a properly directed jury could reasonably conclude that the defence might apply. The question is whether the evidence is sufficient, not merely whether some evidence exists. An appellate court gives weight to the trial judge’s feel for the case, but decides whether the evaluation was right or wrong rather than reviewing a discretion. Panic, fear or acting in the heat of the moment does not necessarily establish loss of self-control; the words must be assessed in context. A qualifying trigger is distinct from loss of control, and fear of serious violence must be supported by the evidence. Where earlier statutory limbs fail, the court need not consider the final limb.

The appellant, aged 16 at trial, was convicted of murder at the Central Criminal Court on 18 July 2022. He appealed against conviction, arguing that the trial judge should have left the partial defence of loss of control to the jury.

The proposed defence relied on interview evidence that he had panicked and acted in the heat of the moment after an alleged knife attack, together with CCTV evidence. The trial judge ruled that there was insufficient evidence of loss of self-control and no qualifying trigger involving fear of serious violence from the victim. She did not consider the final objective limb of the defence. The central issue was whether that approach was legally erroneous.

Appeal dismissed.

1. The court applied the statutory scheme in sections 54 and 55 of the Coroners and Justice Act 2009. The threshold under section 54(5) and (6) requires sufficient evidence on which a properly directed jury could reasonably conclude that the defence might apply. Mere evidence falling short of that threshold is insufficient. The court adopted the framework in Coutts [2007] 1 Cr App R 6 and, more particularly, the principles stated in Goodwin [2018] EWCA Crim 2287.
2. The trial judge’s assessment is a commonsense judgment based on all the evidence. She may assess its quality and weight, but should not reject evidence which a jury could reasonably accept. An appellate court gives due weight to the trial judge’s advantage in hearing the evidence and having the feel of the case. Nevertheless, the evaluation is to be assessed as right or wrong, rather than as an exercise of discretion.
3. The appellant’s references to panic, shock, fear and acting in the heat of the moment had to be understood in context. They explained his asserted need for self-defence and did not necessarily describe a loss of self-control. His conduct on the CCTV, including checking whether he was injured, unsheathing the sword and delivering controlled blows, supported the conclusion that he remained in control.
4. The court separately considered the qualifying trigger. The appellant could not reasonably have feared serious violence from Maatou, who was backing away, had not threatened or used violence, and was lying on the ground when the fatal blow was delivered. Uncertainty whether Maatou might have had a knife did not provide sufficient evidence of the statutory trigger.
5. The court considered, although it was unnecessary to the result, that the CCTV showed the appellant acting from a considered desire for revenge within section 54(4), attacking Hyams’s companion after Hyams had retreated. Since the defence failed on loss of self-control and the qualifying trigger, it was unnecessary to consider the final limb in section 54(1).

• Central Criminal Court: On 18 July 2022, before Her Honour Judge Munro KC and a jury, the appellant was convicted of murder.
• Court of Appeal (Criminal Division): Leave to appeal was granted by the full court. The appeal against conviction was dismissed.