Abstract
One afternoon in January 2022, a group of people gathered at a flat in Folkestone, Kent. The property was owned by 66-year-old Paul Wakefield (W). The group included Shane Myles (M) and Kayleigh Halliday (H). The group were all drinking cider and vodka. All of the people left the flat over the course of the afternoon, apart from M and H. One of the people who had left, Simon Mead, returned at 9 pm to find W on the floor, seriously injured. He had been stabbed in the stomach with a broken bottle, had numerous broken ribs and serious head injuries. There was no-one else there. Mead called an ambulance and W was taken to hospital but died the next day. In the meantime, M and H had been arrested, at 11 pm on the day that W was attacked. They had W's bank card in their possession. M and H admitted they were the only people in the flat when W had been attacked, but initially they blamed each other for causing W's injuries. They were both charged with W's murder.
M and H appeared before Judge Philip Statman and a jury at Maidstone Crown Court in June 2022. Three weeks into the trial, H pleaded guilty to murder. M continued to deny murder although he now admitted having attacked W, along with H. M was prepared to plead guilty to manslaughter either on the basis of lack of intent, or on the basis of the loss of control defence in s 54 of the Coroners and Justice Act 2009 (the 2009 Act). According to M, H had initiated the attack on W by hitting him over the head with a vodka bottle and then stamping on his head. M said that he had lost control after hearing H call W a ‘nonce’. This, M said, triggered a loss of control, because some five years earlier W had looked after M's young son, and M thought that something could have happened to his son whilst in W's care. M admitted that he had also stamped on W's face, once, went to do so again, but changed his mind because he did not like the feeling of stamping on W's face. M told the jury that he had kicked W in the face instead and was able to explain precisely where on the face he had kicked W. Finally, M said that it was H who had stabbed W with the broken vodka bottle.
The trial judge refused to direct the jury on the loss of control defence, on the basis that there was no evidence of M having had a loss of control. M was convicted of murder and appealed. He contended that a reasonable jury would have been entitled to accept M's evidence that he had lost self-control and therefore the trial judge was wrong in not directing them on that defence.
That was sufficient to dispose of the appeal, because the loss of control defence required the trial judge to be satisfied that there was ‘sufficient evidence’ to support all three limbs. However, the Court of Appeal went on to consider whether there was sufficient evidence to support the other two limbs, and concluded that there was not. On the second limb, a qualifying trigger, Davis LJ said that, at best, M had ‘considered the possibility of his son being the subject of sexual abuse’ after hearing H call W a ‘nonce’ (emphasis added). On that evidence, ‘no reasonable jury… could have concluded that [M] had or might have had a justifiable sense of being seriously wronged’, as required by s 55(4)(b) of the 2009 Act (at [20]). As for the third limb of the defence, the proposition that a person with a normal degree of tolerance and self-restraint might have reacted as M did to what was said by H was ‘untenable’. M's ‘extreme and violent reaction’ to what H allegedly said ‘went well beyond what might be expected of someone of a normal degree of tolerance and self-restraint’ (at [22]). Moreover, the fact that M had been drinking on the fateful day in question was not a relevant ‘circumstance’ for the purposes of s 54(1)(c) of the 2009 Act. Davis LJ said that ‘the circumstances of an individual seeking to rely on the statutory defence cannot include voluntary intoxication. It is the degree of tolerance and restraint of a sober person which is relevant’ (at [22]).
Commentary
‘Sufficient Evidence’
Section 54(5) of the 2009 Act provides that ‘if sufficient evidence is adduced to raise an issue with respect to the defence [of loss of control] the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not’. Section 54(6) adds that ‘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’. Nowhere in the 2009 Act does it specify that ‘sufficient evidence’ must be adduced of all three elements, i.e., a loss of self-control on D's part, a qualifying trigger, and the reaction of a person of D's sex and age, with a normal degree of tolerance and self-restraint. However, it has been accepted since Clinton [2012] EWCA Crim 2, [2013] QB 1, that ‘there must be sufficient evidence to establish each of the ingredients’ of the defence. The instant case confirms that proposition.
Section 55(4) and Third Parties
The 2009 Act provides for two triggers. The one on which M in the instant case relied is found in s 55(4). This allows a trigger ‘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’. A typical loss of control case (if such a thing exists) involves D losing self-control as a result of something which V had done or said. However, it is not a pre-requisite, and something said and/or done by a third party could provide the trigger, as the instant case illustrates. M's trigger was based on what H had (allegedly) said, not anything that W had done or said. Interestingly, the other trigger in the 2009 Act is more prescriptive. Section 55(3) provides for a trigger where ‘D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person’. Here, the fear must come ‘from V’, and not from a third party.
Consider a hypothetical case in which D is confronted by two people, X and Y. X says something which D finds exceptionally hurtful; D loses self-control and kills Y. Here, D could (in principle) rely on the loss of control defence because the trigger in s 55(4) is applicable. (Whether the defence would be successful is not guaranteed, of course, being dependent on, first, the trial judge being satisfied that sufficient evidence of the third element had been adduced and, secondly, on the verdict of the jury). Now consider a case where D is confronted by the same two people. This time, X threatens serious violence against D, who again loses self-control and again kills Y. Here, the loss of control defence is not available because the criteria found in s 55(3) are not met.
‘The Circumstances of D’
Section 54(1)(c) requires the jury to decide whether ‘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’. There is currently relatively little case law on what can (and what cannot) be taken into account as part of ‘the circumstances of D’. However, one case, Asmelash [2013] EWCA Crim 157, [2014] QB 103, has examined the significance (if any) of D's intoxication. In that case, Lord Judge CJ said that ‘The only relevance of the drunkenness was that it affected [D's] self-restraint, and caused him to act in a way in which he would not have acted if sober. Such drunkenness was an irrelevant consideration. It may have had some relevance to his general capacity for tolerance or self-restraint: but no more’ (Asmelash at [19]). This proposition has been confirmed in the instant case. M's intoxication was potentially relevant in deciding whether M had actually lost self-control (i.e., the first element of the defence) but was irrelevant in determining M's circumstances for the purposes of the third element.