When should loss of control be left to a jury ? R v Goodwin [2018] EWCA Crim 2287

This case visits the issue of when loss of control as a defence should be left to the jury to consider .

The Court formulated the following principles

(i) The required opinion is to be formed as a common sense judgment based on an analysis of all the evidence.

(ii) If there is sufficient evidence to raise an issue with respect to the defence of loss of control, then it is to be left the jury whether or not the issue had been expressly advanced as part of the defence case at trial.

(3) The appellate court will give due weight to the evaluation (“the opinion”) of the trial judge, who will have had the considerable advantage of conducting the trial and hearing all the evidence and having the feel of the case. As has been said, the appellate court “will not readily interfere with that judgment”.

(4) However, that evaluation is not to be equated with an exercise of discretion such that the appellant court is only concerned with whether the decision was within a reasonable range of responses on the part of the trial judge. Rather, the judge’s evaluation has to be appraised as either being right or wrong: it is a “yes” or “no” matter.

(5) The 2009 Act is specific by section 54(5) and (6) that the evidence must be “sufficient” to raise an issue. It is not enough if there is simply some evidence falling short of sufficient evidence.

(6) The existence of a qualifying trigger does not necessarily connote that there will have been a loss of control.

(7) For the purpose of forming his or her opinion, the trial judge, whilst of course entitled to assess the quality and weight of the evidence, ordinarily should not reject evidence which the jury could reasonably accept. It must be recognised that a jury may accept the evidence which is most favourable to a defendant.

(8) The statutory defence of loss of control is significantly differently from and more restrictive than the previous defence of provocation which it has entirely superseded.

(9) Perhaps in consequence of all the foregoing, “a much more rigorous evaluation” on the part of the trial judge is called for than might have been the case under the previous law of provocation.

(10) The statutory components of the defence are to be appraised sequentially and separately; and

(11) And not least, each case is to be assessed by reference to its own particular facts and circumstances.

The Court emphasised the assessment requires a much more rigorous review by a Trial Judge than would have bene required under the previous law making the point that :

It also follows from all this that, putting it bluntly, there is no room for what may be called a “defensive” summing-up on such an issue. A trial judge cannot – tempting though it may sometimes seem – simply leave loss of control to the jury in order to seek to avoid generating a potential ground of appeal, if a conviction for murder results, on the basis of a failure to have done so. That would go against the scheme and the wording of the statute. As stated in the court by R v Skilton [2014] EWCA Crim 154 (itself a case where self-defence had been the principal defence advanced) a trial judge should not “clutter up” a jury’s deliberations by inviting them to consider issues which do not arise on the evidence.



Categories: Caselaw, Criminal Appeals

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