When a Loss of Control is Insufficient

In a recent trial before the Crown Court at Plymouth, Anthony Brinton was forced to plead guilty to murder at the end of the defence case. The circumstances, though rare were not exceptional; the defendant ran a defence of loss of control but, following an application by the prosecution, the judge withdrew that defence from the jury, leaving him with no option other than to plead guilty to murder.

What was a little more unusual, was that the application by the prosecution was made after the defendant had concluded his evidence-in-chief but before he had been cross-examined. That proved to be significant because he was in court as the submissions both for and against the application were made, which led to a rather farcical situation when the judge, quite rightly, ruled that he could not decide the application until the defendant had completed his evidence.

The facts briefly are that AC died in March of this year, having been subjected to an extremely violent attack by the defendant with a hammer, two months earlier. That attack took place in the deceased’s own home which he shared with the defendant’s ex-partner. 

It appears that although there was no sexual relationship between the deceased and the defendant’s ex-partner, the defendant was jealous of the fact that the two shared the same house.

On 12 January 2020, the defendant was seen in a road, close to where the deceased lived, looking for something in the rear of his van with a torch. Importantly, the van was where he kept his work tools and after two minutes, he walked towards the road where the deceased lived.

He was next seen, having been caught on CCTV, throwing a claw hammer and other items into the sea, before entering the sea and removing his footwear and clothing, returning wearing only boxer shorts and a t-shirt.

The deceased was discovered later the following morning on the floor of his bedroom. Though still alive, he had sustained severe injuries and was struggling to breathe. Examination of the scene revealed that he had been attacked in bed and the defendant’s baseball cap was found in the hallway. The forensic pathologist confirmed that his injuries consisted of at least nine separate hammer blows, all to the head, at least two of which, had penetrated through the skull.

In the following days, the defendant made a number of significant comments, including that he had kicked somebody in and was lying low, and threatened to throw himself from the Tamar Bridge.

Following his arrest, over the course of four interviews, he gave changing accounts but, in all of them, denied having entered the home of the deceased.

The original defence was, therefore, one of alibi, but following the disclosure of the CCTV, showing him throwing the hammer and clothing into the sea, he changed that to one of self-defence. That defence was abandoned shortly before the trial in October, when the defendant indicated that he would plead guilty to manslaughter and that he would rely upon the partial defence of a loss of control, believing that he faced a serious threat of violence the deceased.

At trial he gave evidence that the deceased had let him into his home, he followed him into the bedroom, where the deceased picked up a hammer which he used to attack the defendant. The defendant said that he had successfully wrestled the hammer from the deceased during the course of a struggle but that he then blacked out and couldn’t remember anything until the deceased shouted at him to get out. At that stage, the defendant said that he realised he was covered in blood and just left.

He accepted that he must have caused the injuries but could not remember how, and it was at that stage that the prosecution invited the judge to rule that there was insufficient evidence to leave the partial defence to the jury, on the basis that the defendant had not mentioned a loss of control.

The judge indicated that his evidence hadn’t concluded, and the fact of his omission having been pointed out in argument, the defendant proceeded to mention on many occasions during the subsequent cross-examination and re-examination that he was not in control and that he had blacked out.

Section 54 (1) of the Coroners and Justice Act 2009 sets out the three elements which must be left to the jury to consider if, in the opinion of the trial judge, sufficient evidence is advanced upon which a jury properly directed could reasonably conclude that the defence might apply, namely: i. the defendant’s act in killing AC resulted from a loss of self-control on the defendant’s part; ii. the loss of self-control had a ‘qualifying trigger’; and iii. a man of the same age as the defendant, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or similar way to the defendant.

Looking to the cases of R v Gurpinar [2015] EWCA Crim 178, R v Martin [2017] EWCA Crim 1359 and R v Goodwin [2018] EWCA Crim 2287 the judge set out approach to be taken namely:

  1. A rigorous evaluation of the evidence is required;
  2. The question of whether sufficient evidence has been adduced is a matter for the trial judge which involves consideration as to whether a jury properly directed could reasonably conclude that the defence might apply;
  3. Such judgment requires analysis of all the evidence to come to a common-sense conclusion bearing in mind that a judge ought not to reject evidence that a jury reasonably could accept and to recognise that a jury may accept the evidence that is most favourable to the defendant;
  4. It is not a matter of discretion but a matter of judgment;
  5. The existence of a qualifying trigger does not necessarily connote that there has been a loss of control;
  6. The three components or elements must be considered sequentially and separately;
  7. Each case is to be assessed by its own particular facts and circumstances, with the judge determining the weight and quality of the evidence when coming to a conclusion.

The judge then applied those principles to the account given by the defendant together with the agreed evidence. Looking first at the qualifying trigger, submitted on behalf of the defendant, to have been the attack upon the defendant by the deceased with a hammer, the judge found that the defendant could not have reasonably have held a fear of serious (or indeed any) violence after he had possession of the hammer and therefore, there was insufficient evidence of a qualifying trigger to leave to a jury.

Turning next to loss of control, the judge noted that in Goodwin, the fact that the defendant had not said that he suffered a loss of control was regarded as a significant, though not a decisive, omission. Equally, although the defendant, following submissions, had repeated many times that he had lost control, this had immediately been followed by his assertion that he blanked out. That caused the judge to question how the defendant knew that he had lost control, (albeit without considering that the very fact of losing control could potentially cause a person to blank out what they subsequently did). In Gurpinar, the Court held that question was to be answered by an assessment of the weight and quality of the evidence, and that a judge must look for something more than a bald assertion when deciding whether there was sufficient evidence of loss of control to leave to a jury.

In the current case the judge rejected the defence submission that the number of blows demonstrated that it had been a frenzied attack indicative of a loss of control, noting that the injuries were confined to a single area on the head, signifying that they were targeted by someone very much in control. He also looked at the defendant’s calculated and calm actions after the event which, again, led him to the view that there was insufficient evidence to leave to the jury to conclude that there was a loss of control.

The final element, whether a sober man of the same age as the defendant, with a normal degree of tolerance and self-restraint, in the circumstances of the defendant would have reacted in the same or similar way to the defendant, was determined by the fact that the defendant had quickly disabled the deceased, at which stage a number of options were available to him, not least, simply leaving with the hammer.

In fact, he found that this was the clearest of the three elements and that in his judgment, a jury properly directed could not reasonably come to the conclusion that a 42-year old, sober male, of normal tolerance and restraint in the circumstances of the defendant, might have reacted to the situation by launching a sustained attack upon his assailant’s head with heavy blows from a hammer while that person was lying unarmed in a bed.

As stated, once that defence was withdrawn from the jury, the defendant having rather sensibly earlier abandoned the defence of alibi and self-defence, was left with no alternative but to plead guilty to murder. He was sentenced to life imprisonment with a minimum tariff of 28 years, for what the judge described as ‘a wicked and brutal attack.’

This case illustrates that when running a loss of control, it may be deemed wise for a defendant to say that was what he did when giving evidence. How that is done in practice, without coaching a defendant is another matter and those words, though common place for criminal advocates, may not trip off the tongue of a defendant. However, what is clear, is that in the absence of such words, there must be evidence from which a fair inference can be drawn that the defendant did indeed lose control. And if, as in this case and in the almost strikingly similar case of Goodwin, when blows are struck to someone disarmed and lying either on a bed or the floor, a defendant must be prepared to have the partial defence withdrawn from the jury.

Sarah Regan
Head of Crime Team