'Loss of self-control' not provocation

In R v Gurpinar & Kojo-Smith [2015] EWCA 178 the Court of Appeal (with the Lord Chief Justice presiding) examined the new(ish) partial criminal defence of ‘loss of self-control’ as opposed to provocation. The defendants were both young men convicted of murder after stabbing to death victims in fights. Both appealed against convictions on the basis that the new statutory partial defence of “loss of self-control” ought to have been left to the jury by the trial judge. Both appeals were dismissed but the judgment is important for its reiteration of the principles outlined previously by Lord Judge (then LCJ) in Clinton. Firstly, section 56 Coroners and Justice Act 2009 abolished the common law defence of provocation: "The new statutory defence is self-contained within the statutory provision. Its common law heritage is irrelevant…It should be rarely be necessary to look at cases decided under the old law of provocation”. There are 3 principle components of the new defence:

1. Loss of self-control;
2. The loss of self-control had a qualifying trigger; and
3. A person with the characteristics and circumstances of the defendant might have reacted in a similar way.

There must be sufficient evidence as opposed to merely evidence (which sufficed under the old law) of the existence of all three of the above components in order for the defence to be left to the jury. The Court went on to state that the proper approach would be for counsel to submit written submissions on the point and for the trial judge to give a reasoned ruling following which “an appellate court will not readily interfere with that judgment”.