Mustafa Gurpinar v R
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd, CJ |
| Judgment Date | 20 February 2015 |
| Neutral Citation | [2015] EWCA Crim 178 |
| Docket Number | Case Nos: 2012/04459/C1, 2014/02175/B1 & 2014/02167/B1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 February 2015 |
[2015] EWCA Crim 178
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
Mr Justice Coulson
and
Mr Justice Gilbart
Case Nos: 2012/04459/C1, 2014/02175/B1 & 2014/02167/B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Joel Bennathan QC (who did not appear at the trial) (instructed by GT Stewart Solicitors & Advocates (who did not appear at the trial)) for the Appellant Gurpinar
Philippa McAtasney QC for the Appellant Kojo-Smith
Miss M Russell and A Power for the Applicant Caton
Duncan Penny QC and Duncan Atkinson for the Respondent
Hearing dates: 25 and 26 November 2014
This is the judgment of the court to which we have all contributed.
Introduction
These appeals were heard together as they raise the issue as to whether the partial defence of loss of control should have been left to the jury.
i) In the first appeal, the appellant Gurpinar was convicted of murder at the Central Criminal Court before HH Judge John Bevan QC on 29 June 2012 and sentenced to detention at Her Majesty's Pleasure with a minimum term of 13 years.
ii) In the second appeal, the appellant Kojo-Smith was convicted of murder at the Central Criminal Court before HH Judge Richard Marks QC on 14 April 2014 and sentenced to detention at Her Majesty's Pleasure with a minimum term of 18 years.
We also heard an application in relation to a co-defendant of Kojo-Smith on a wholly different ground. We set out our reasons for refusing the application at paragraphs 97 and following below.
I THE LAW IN RELATION TO LOSS OF CONTROL
The partial defence of loss of control is set out in ss.54 and 55 of the Coroners and Justice Act 2009 (the Act). With effect from 4 October 2010, it replaced the law of provocation:
"54. Partial defence to murder: loss of control
(1) Where a person ("D") kills or is a party to the killing of another ("V"), D is not to be convicted of murder if—
(a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) a person of D's sex and age, with a normal degree of tolerance and self
restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
(3) In subsection (1)(c) the reference to "the circumstances of D" is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint.
(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.
(7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.
55. Meaning of "qualifying trigger"
(1) This section applies for the purposes of section 54.
(2) A loss of self-control had a qualifying trigger if subsection (3), ( 4) or (5) applies.
(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.
(4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which—
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
(5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
(6) In determining whether a loss of self-control had a qualifying trigger—
(a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;
(c)…
(7) In this section references to "D" and "V" are to be construed in accordance with section 54.
(8) .."
S.56 abolished the common law defence of provocation and replaced it by ss.54 and 55. It also provided that s.3 of the Homicide Act 1957 ceased to have effect. As Lord Judge CJ made clear in the opening paragraph of the judgment of the court in R v Clinton and others [2012] EWCA Crim 2 [2012] 3 WLR 515, [2013] QB 1, [2012] 2 All ER 947, [2012] 1 Cr App R 26, the new statutory defence is self-contained within the statutory provision. Its common law heritage is irrelevant:
"The ancient common law defence of provocation, reducing murder to manslaughter, was abolished and consigned to legal history books
… Just because loss of control was an essential ingredient of the old provocation defence, the name is evocative of it. It therefore needs to be emphasised at the outset that the new statutory defence is self-contained. Its common law heritage is irrelevant. The full ambit of the defence is encompassed within these statutory provisions".
The course of argument before the judge in the second case and the course of the argument in these appeals make it necessary to underline these clear words of Lord Judge CJ. It should rarely be necessary to look at cases decided under the old law of provocation. When it is necessary, the cases must be considered in the light of the fact that the defence of loss of control is a defence different to provocation and is fully encompassed within the statutory provisions. As has been frequently observed, the law does not develop in an accessible and coherent manner if reliance continues to be placed on cases that arise under a repealed or superseded law, unless there is good reason to do so.
The three principal components of the defence set out in the Act were reviewed by Lord Judge in Clinton:
i) The killing must have resulted from the defendant's loss of self-control: see paragraph 10 of Clinton;
ii) The loss of self-control had a qualifying trigger: see paragraphs 11–29 of Clinton;
iii) A person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in a similar way to the defendant: see paragraphs 30 – 32 of Clinton.
As Lord Judge emphasised at paragraph 9 of Clinton:
"9 … If one is absent, the defence fails. It is therefore inevitable that the components should be analysed sequentially and separately. However, it is worth emphasising that in many cases where there is a genuine loss of control, the remaining components are likely to arise for consideration simultaneously or virtually so, at or very close to the moment when the fatal violence is used."
These components were considered further in R v Dawes [2013] EWCA Crim 322, [2013] 2 Cr App R 3, [2014] 1 WLR 947, [2013] 3 All ER 308.
Leaving the defence to the jury
The obligation to leave the former defence of provocation to the jury was set out in s.3 of the Homicide Act 1957:
"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."
It is important to note that in contradistinction to the requirement in s.54 (5) and (6) of the Act of "sufficient evidence", the Homicide Act 1957 required only "evidence".
The Law Commission commented on the duty to leave the defence of provocation to the jury in its final report Partial Defences to Murder (6 August 2004 Law Com No 290), and it its subsequent review, Murder, Manslaughter and Infanticide (Law Com No. 309, 28 November 2006). In the latter report, it noted at paragraph 5.15:
"Under the existing law, the judge must put the defence to the jury whenever there is evidence that the defendant ("D") was provoked to lose self-control, however, unlikely the defence is to succeed. The judicial obligation was probably not intentionally created by Parliament when the doctrine of provocation was reformed in 1957. The current position does not serve the interests of justice because the need to put the defence to the jury in these circumstances increases the likelihood that an unmeritorious claim may succeed. The current position may not even serve the interests of every D. Even if there is evidence of a loss of self-control, D may not want the jury side-tracked by a partial defence if his or her main claim is for complete acquittal."
In the Government's Consultation Paper, Murder, Manslaughter and infanticide, proposals for reform of...
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