Loss of Control – R v Rejmanski and others [2017] EWCA Crim 2061

This Case visited the assessment of what is loss of control ( following the replacement of the defence of provocation )

Section 54 provides:

This section has no associated Explanatory Notes
(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.

The new loss of control defence therefore consists of three components:

(i) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,

(ii) the loss of self-control had a qualifying trigger, and
(iii) 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 a similar way to D.

The Court set down the following principles

  1. First, we have considered whether it is necessary to analyse further the background to the enactment of sections 54 and 55. In our view, it is not. The provisions themselves and Parliament’s intent are sufficiently clear in this regard and no resort to additional material such as Hansard is necessary. Furthermore, our conclusions accord, for the most part, with the final submissions of all counsel.
  2. Second, the three components of loss of control are distinct and require separate consideration. We agree with Ms Whitehouse QC and Mr Mably QC that the potential relevance of a mental disorder to each of the components is fact specific. It depends on the nature of the defendant’s disorder, the effect it has on the defendant and the facts of the case.
  3. Third, the wording of s. 54(1)(c) is clear: in assessing the third component, the defendant is to be judged against the standard of a person with a normal degree, and not an abnormal degree, of tolerance and self-restraint. If, and in so far as, a personality disorder reduced the defendant’s general capacity for tolerance or self-restraint, that would not be a relevant consideration. Moreover, it would not be a relevant consideration even if the personality disorder was one of the “circumstances” of the defendant because it was relevant to the gravity of the trigger (for which, see Wilcocks).Expert evidence about the impact of the disorder would be irrelevant and inadmissible on the issue of whether it would have reduced the capacity for tolerance and self- restraint of the hypothetical “person of D’s sex and age, with a normal degree of tolerance and self-restraint”.
  4. Fourth, if a mental disorder has a relevance to the defendant’s conduct other than a bearing on his general capacity for tolerance or self-restraint, it is not excluded by subsection (3), and the jury will be entitled to take it into account as one of the defendant’s circumstances under s.54(1)(c). However, it is necessary to identify with some care how the mental disorder is said to be relevant as one of the defendant’s circumstances. It must not be relied upon to undermine the principle that the conduct of the defendant is to be judged against “normal” standards, rather than the abnormal standard of an individual defendant. It follows that we reject Mr Griffiths’ argument that, if a disorder is relevant to, say, the gravity of the qualifying trigger, and evidence of the disorder is admitted in relation to the gravity of the trigger, the jury would also be entitled to take it into account in so far as it bore on the defendant’s general capacity for tolerance and self-restraint. The disorder would be a relevant circumstance of the defendant, but would not be relevant to the question of the degree of tolerance and self- restraint which would be exercised by the hypothetical person referred to in section 54(1)(c).
  5. As we have indicated, the most obvious example of when evidence of a mental disorder may be relevant to the defendant’s circumstances is the one mentioned in Holley andWilcocks, where the disorder was relevant to the gravity of the qualifying trigger. InHolley, the Board accepted that in the case of a woman suffering from ‘Battered Woman’s Syndrome’ or a personality disorder, who killed her abuser, evidence of her condition may be relevant to both the loss of self control and to the gravity of the provocation for her. In Wilcocks, the trial judge, and this Court, accepted that, if a personality disorder had caused the defendant to attempt suicide and he had been taunted by the deceased about committing suicide, then the jury was entitled to take it into account as one of his circumstances in considering the third stage of the defence.
  6. We do not exclude the possibility of other circumstances where a disorder might be relevant to the third component, but none have been put before us. This suggests the question is of academic interest only.
  7. Finally, the exclusionary effect of subsection (3) is consistent with, and reinforced by, the availability and scope of the partial defence of diminished responsibility in section 2 of the Homicide Act 1957, as amended by section 52 of the 2009 Act. The amended section 2 applies where a mental disorder substantially impairs the ability of the defendant to exercise self-control. The two defences may be presented together as alternatives. The law does not therefore ignore a mental disorder that, through no fault of a defendant, renders him or her unable to exercise the degree of self-control of a ‘normal’ person.



Categories: Caselaw, Criminal Appeals

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