Loss of Control: ‘Sufficient Evidence’ (Again)
| DOI | 10.1177/0022018315589030 |
| Date | 01 June 2015 |
| Author | Tony Storey |
| Published date | 01 June 2015 |
| Subject Matter | Court of Appeal |
2015, Vol. 79(3) 154–164
Court of Appeal
ª The Author(s) 2015
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DOI: 10.1177/0022018315589030
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Loss of Control: ‘Sufficient Evidence’ (Again)
R v Gurpinar; R v Kojo-Smith [2015] EWCA Crim 178, Court of Appeal
Keywords
Murder, manslaughter, loss of control, sufficient evidence
Mustafa Gurpinar (MG), 14, fatally stabbed Leroy James, also 14, during a pre-arranged fight at Ponders
End recreation ground in Enfield, North London, in August 2011. He was charged with murder and
appeared before HH Judge John Bevan QC and a jury at the Central Criminal Court in June 2012. His
defence at trial was a combination of ‘accident’ and/or lack of mens rea and/or self-defence. The trial
judge considered leaving the defence of loss of control to the jury but eventually decided not to do
so, on the basis that it would be ‘an added complication’. The jury rejected all of MG’s defences. He
was convicted of murder and appealed, contending that the trial judge should have directed the jury
on loss of control.
Nii-Azu Kojo-Smith (NK), 17, fatally stabbed Liam Woodards (LW), 24, during a clash between two
groups of young men at Westfield shopping centre in Stratford, East London, in June 2012. He was
charged with murder and appeared before HH Judge Richard Marks QC and a jury at the Central Crim-
inal Court in April 2014. His defence at trial was self-defence, on the basis that he feared that LW was
about to stab him. NK said that he had swung at LW with a knife which had earlier been given to him
(NK) by another member of his (NK’s) group. Counsel for NK asked the trial judge to leave loss of con-
trol to the jury, on the basis that LW had ‘goaded and taunted’ NK immediately prior to the fatal stab-
bing, but this request was declined. The trial judge ruled that there was no evidential basis upon which a
jury could conclude that NK had lost his self-control. The jury rejected NK’s plea of self-defence. He
was convicted of murder and appealed, contending that the trial judge should have directed the jury
on loss of control.
HELD, DISMISSING THE APPEALS, there was insufficient evidence on which a jury properly
directed could reasonably conclude that the defence of loss of control might apply to either appellant
(at [55] and [93]).
A trial judge has to consider whether to leave the defence of loss of control to the jury even if it has
not been raised by the defendant (at [10]). The fact that the defendant’s own evidence did not support a
loss of self-control is ‘only a factor (albeit a significant one), which the judge should take into account in
his objective assessment of the evidence’ (at [10]).
Under s. 54(5) and (6) of the Coroners and Justice Act 2009 (CJA 2009), a trial judge is only obliged
to leave the defence to the jury if ‘sufficient evidence’ has been adduced to ‘raise an issue . . . on which a
jury properly directed could reasonably conclude that the defence of loss of control might apply’. In
deciding whether such evidence has been adduced, the judge must ‘proceed on the premise that the jury
might take a different view of the evidence to that which the judge may have found’ (at [12]).
There are three components to the loss of control defence, set...
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