Gurpinar v R

These appeals were heard together as they raise the issue as to whether the partial defence of loss of control should have been left to the jury.

We also heard an application in relation to a co-defendant of Kojo-Smith on a wholly different ground. We set out our reasons for refusing the application at paragraphs 97 and following below.

The partial defence of loss of control is set out in ss.54 and 55 of the Coroners and Justice Act 2009 (the Act). With effect from 4 October 2010, it replaced the law of provocation:

“54.

Partial defence to murder: loss of control

(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.

55.

Meaning of “qualifying trigger”

(1)

This section applies for the purposes of section 54.

(2)

A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.

(3)

This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.

(4)

This subsection applies 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.

(5)

This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).

(6)

In determining whether a loss of self-control had a qualifying trigger—

(a)

D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;

(b)

a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;

(c)…

(7)

In this section references to “D” and “V” are to be construed in accordance with section 54.

(8)

..”

S.56 abolished the common law defence of provocation and replaced it by ss.54 and 55. It also provided that s.3 of the Homicide Act 1957 ceased to have effect. As Lord Judge CJ made clear in the opening paragraph of the judgment of the court in R v Clintonand others[2012] EWCA Crim 2 [2012] 3 WLR 515, [2013] QB 1, [2012] 2 All ER 947, [2012] 1 Cr App R 26, the new statutory defence is self-contained within the statutory provision. Its common law heritage is irrelevant:

“The ancient common law defence of provocation, reducing murder to manslaughter, was abolished and consigned to legal history books

… Just because loss of control was an essential ingredient of the old provocation defence, the name is evocative of it. It therefore needs to be emphasised at the outset that the new statutory defence is self-contained. Its common law heritage is irrelevant. The full ambit of the defence is encompassed within these statutory provisions”.

The course of argument before the judge in the second case and the course of the argument in these appeals make it necessary to underline these clear words of Lord Judge CJ. It should rarely be necessary to look at cases decided under the old law of provocation. When it is necessary, the cases must be considered in the light of the fact that the defence of loss of control is a defence different to provocation and is fully encompassed within the statutory provisions. As has been frequently observed, the law does not develop in an accessible and coherent manner if reliance continues to be placed on cases that arise under a repealed or superseded law, unless there is good reason to do so.

The three principal components of the defence set out in the Act were reviewed by Lord Judge in Clinton:

The obligation to leave the former defence of provocation to the jury was set out in s.3 of the Homicide Act 1957:

“Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”

It is important to note that in contradistinction to the requirement in s.54 (5) and (6) of the Act of “sufficient evidence", the Homicide Act 1957 required only “evidence”.

The Law Commission commented on the duty to leave the defence of provocation to the jury in its final report Partial Defences to Murder (6 August 2004 Law Com No 290), and it its subsequent review, Murder, Manslaughter and Infanticide (Law Com No. 309, 28 November 2006). In the latter report, it noted at paragraph 5.15:

"Under the existing law, the judge must put the defence to the jury whenever there is evidence that the defendant (“D”) was provoked to lose self-control, however, unlikely the defence is to succeed. The judicial obligation was probably not intentionally created by Parliament when the doctrine of provocation was reformed in 1957. The current position does not serve the interests of justice because the need to put the defence to the jury in these circumstances increases the likelihood that an unmeritorious claim may succeed. The current position may not even serve the interests of every D. Even if there is evidence of a loss of self-control, D may not want the jury side-tracked by a partial defence if his or her main claim is for complete acquittal.”

In the Government’s Consultation Paper, Murder, Manslaughter and infanticide, proposals for reform of the law” (July 2008, CP19/08) which explained why the Government proposed to implement only part of the Law Commission’s 2006 proposals, it was made clear at page 2 that the law would be reformed:

“To ensure that the judge should not be required to leave either of the defences to the jury unless there was evidence on which a reasonable jury properly directed could conclude that they might apply.”

At paragraphs 18 and 40 under the heading “Lack of Judicial Control” the paper noted:

“18.

Under the existing law, if there is any evidence, that the defendant was provoked to lose his or her self-control, the judge must leave the defence to the jury, even if the defendant is not running a plea of provocation, for example because he or she is seeking a complete acquittal.

40.

We agree with the Law Commission that there is no justification for the current position and we propose that the judge should not be required to leave either of these defences to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply.”

Therefore as noted in Clinton and in Dawes at paragraph 60-61, although viewed overall, the eventual legislation which found its way into ss.54 and 55 of the 2009 Act did not closely follow the recommendations of the Law Commission, the provision in s.55(4) was intended to implement the recommendation that the position under the former law was no longer justifiable. As the Explanatory Notes to the Act make clear:

“This differs from the position with the existing partial defence of provocation, where if there is evidence that a person was provoked to lose his or her self-control, the judge is required to leave the partial defence to the jury even where no jury could reasonably conclude that a reasonable person would have acted as the defendant did.”

It was common ground before us that the judge must consider whether to leave to the jury the defence that he lost his self-control, even if the defendant has not raised the issue or given evidence. Whatever the tactical decision made by the defence, it is the judge’s duty to consider whether, on the whole of the evidence, the defence arises: see Dawes at paragraph 53. The fact that the defendant gave evidence which did not support a loss of self-control, is part of the evidence; it is only a factor (albeit a significant one) which the judge should take into account in his objective assessment of the evidence. It is neither necessary nor desirable to refer to further authority in relation to the judge’s duty, as the principle is clear and an examination of the different ways in which judges have put this duty on the facts of a particular case do not assist.

However the judge must only leave the defence to the jury under the terms of s.54 (4) if “sufficient evidence is adduced to raise an issue…on which a jury properly directed could reasonably conclude that the defence might apply” after consideration of each of the components of the defence under s.54 and s.55: see paragraph 45-47 of Clinton and paragraphs 49-50 of the judgment in Dawes. Lord Judge pithily summarised the approach in Clinton at paragraph 46:

“This requires a common sense judgment based on an analysis of all the evidence. To the extent that the evidence may be in dispute, the judge has to recognise that the jury may accept the evidence which is most favourable to the defendant, and reject that which is most favourable to the prosecution, and so tailor the ruling accordingly. That is merely another way of saying that in discharging this responsibility the judge should not reject disputed evidence which the jury might choose to believe.”

We therefore accept the submission of the appellants that a judge needs to proceed on the premise that the jury may take a different view of the evidence to that which the judge may have found. The judge must therefore approach the analysis of the evidence on that basis, as is emphasized in the passage from Clinton which we have set out. However as the Act refers to “sufficient evidence”, it is clearly the judge’s task to analyse the evidence closely and be satisfied that there is, taking into account the whole of the evidence, sufficient evidence in respect of each of the three components of the defence. The judge is bound to consider the weight and quality of the evidence in coming to a conclusion: see R v Jewell [2014] EWCA Crim 414 at paragraphs 51-54.

As the task facing the trial judge is to consider the three components sequentially, and then to exercise his judgement looking at all the evidence, it follows from the terms of the Act (as clearly set out in both Clinton and Dawes) that if the judge considers that there is no sufficient evidence of loss of self-control (the first component) there will be no need to consider the other two components. Nor if there is insufficient evidence of the second will there be a need to address the third.

Therefore we agree with the views of Professor David Ormerod, which were set out at paragraph 14 of a paper entitled Loss of Control (June 2014, Judicial College) and put before us in argument that a trial judge must undertake a much more rigorous evaluation of the evidence before the defence could be left to the jury than was required under the former law of provocation.

As both of these appeals demonstrate, a judge must be assisted by the advocates. It is generally desirable that the possibility of such an issue arising should be notified to the judge as early as possible in the management of the case, even though it may not form part of the defence case. If, at the conclusion of the evidence, there is a possibility that the judge should leave the issue to the jury when it is not part of the defence case, the judge must receive written submissions from the advocates so that he can carefully consider whether the evidence is such that the statutory test is met.

A judge must then in that assessment have regard to the three components of the defence of loss of control under the Act (and not the former law), undertake a rigorous evaluation of the evidence against those components and set out the conclusion in a reasoned ruling. Provided that is done, bearing in mind the advantages a trial judge has over an appellate court, an appellate court will accord to a reasoned decision of a trial judge (examining the components of the defence of loss of control) the ambit of judgment in the evaluation of the evidence that is open to the judge when making a decision based on that evaluation. In such circumstances, an appellate court will not readily interfere with that judgment.

The decisions before the Act came into force and the defence of provocation was abolished, including those reviewed in R v James Thompson [2013] EWCA Crim 1746 and R v Maxine Williams [2013] EWCA Crim 2521 (cases concerned with the law of provocation) add nothing which can assist a judge who is considering the terms of the clear statutory test set out in s.54 (6). That test is clear. The development of the criminal law is, as we must again emphasise, not assisted by continued reference to the old cases or further judicial exegesis on the clear statutory words.

Submissions were addressed to us on the meaning of the statutory term “loss of self-control”. Although Mr Bennathan QC submitted that the term had no precise or special legal meaning, he submitted that a defendant could be considered to have lost his self-control when acting in fear or in anger or swayed by both, so as to do an act that he would normally avoid by reason of morality or fear of the consequences; a jury might therefore find that a defendant may have lost his self-control when he did an atypical act.

Professor Ormerod set out in Smith and Hogan’s Criminal Law 13th Edition at paragraph 15.1.2.5 and at paragraph 33 of his June 2014 paper to which we have referred, his view that “loss of self-control” in the Act could be best understood as “founded on whether the D has lost his ability to maintain his actions in accordance with considered judgment or whether he had lost normal powers of reasoning.” This was approved in R v Jewell at paragraph 24.

It was clearly submitted with much force by Mr Duncan Penny QC on behalf of the prosecution that Professor Ormerod’s formulation of the meaning of the term “loss of self-control” required more careful consideration. In particular, it was submitted that the formulation could be understood as accepting a loss of temper was sufficient; it was submitted that that was not the position under the Act. Submissions were also addressed to us as to whether the loss of self-control had to be a total loss or whether some loss of self-control was sufficient. As these questions do not arise on the facts of these cases, it is undesirable for us to address them. It is the better course to decide any such issue, if the issue ever arises on the particular facts of a case. It may well be that the issue is generally fact-sensitive. It may therefore be unnecessary for this court to elaborate on the terms of the Act, but such a decision must await a case where the issue arises.

Nor is it necessary to explore the relationship with the defence of self-defence. The question was fully considered at paragraph 59 of Dawes. Nothing further arises in these appeals.

Ms McAtasney QC argued that the third component was not a substantial obstacle for a defendant to surmount. We do not agree. The Act makes no distinction between the three components. There must be sufficient evidence of each of the components, including the third.

The background

The background evidence

On 17 August 2011 the appellant Gurpinar (who was born on 28 September 1996) killed Leroy James, another 14 year old, in Ponders End Park, Enfield, London. He was indicted on a count of murder and a count of possession of an offensive weapon.

The background to the killing was that earlier in the year it was alleged that Jordan, a friend of the deceased and part of his social group, had attempted to take money or a mobile phone from Gurpinar.

As a result of this incident Gurpinar posted numerous messages on Facebook in which he threatened Jordan, and other friends of his (including the deceased), with violence. He also boasted to his friends what he would do to Jordan and his friends. The threats and boasts contained numerous references to knives and stabbing.

On 4 August 2011, Gurpinar sent a Facebook Message to a friend about having his right hand in his pocket and about stabbing people. He said:

“my tiny alligator needs sum food still .. dats what I name my knife LOOOL when I get a machete imma call it a crocodile”

On 6 August 2011 Gurpinar sent Jordan a message telling him to come to Ryan’s Park in Enfield and telling him to “bring a knife”. Gurpinar, who referred to his knife as his “alligator” or “pet”, told Jordan that “my pet will be tasting your blood, so u bring ur knife to protect urself”. He talked about getting revenge.

In a lengthy Facebook message sent on 11 August 2011, Gurpinar told Jordan that he was talking “about a pet dat stays in ur pocket…eny ways im goin ryans park wiv my lil bro, you can catch me there enytime you like”.

Jordan was unclear who was sending these messages and made enquiries about Gurpinar. He discovered that Gurpinar was a “neek” - someone who he was told was halfway between a “nerd” and a “geek”. On 12 August 2011, Jordan made an attempt to bring this threatening series of messages to an end when he sent a Facebook message saying:

“Bare man from ur ski told me ur some any neek stop actin on fb I’m finished talkin to u now.”

Shortly after this message was sent, there was a confrontation between Jordan and Gurpinar in which Jordan lifted up his shirt and said to Gurpinar: “Go on, then, stab me”. Gurpinar denied that the messages had come from him and said that his Facebook account had been hacked. He said he had not sent the threats. Jordan accepted that explanation and the matter was left there. In fact Gurpinar had indeed sent the threatening messages.

A little later on 12 August 2011, Gurpinar was discussing the confrontation with a friend. He said that he was ready to fight and that he was just waiting for them “to make the first blow” and then he was going “to go berserk.” He also said that “they all thought I was scared”. The judge drew this specific message to the attention of the jury in his summing up because there were similarities between the defendant’s description of that incident and the fatal confrontation 5 days later.

The evidence relating to killing of the deceased

On 17 August 2011, Gurpinar was in Ryan’s Park with about 10 friends. They were approached by the deceased, who was with three of his own friends, including Jordan. There was some, though contradictory, evidence to suggest that a fight had been arranged. The deceased or one of his friends asked Gurpinar if he wanted to fight the deceased. Gurpinar said he did not. The deceased was taller and bigger than Gurpinar; the trial judge described him as a potential bully who would take advantage of his height and size to throw his weight about. He had been the subject of disciplinary action at school for fighting in the playground.

There was talk about the Facebook material and a suggestion that they needed to “sort out what happened”. The deceased’s group then turned and walked away. One of the onlookers in Gurpinar’s group called out a challenge and he returned. He repeated his invitation to fight and Gurpinar again declined it. Both boys were now surrounded by their respective friends, some of whom were encouraging them to fight.

The deceased then emptied his pockets and gave his mobile phone to one of his friends, Natasha. One witness said that he understood that the deceased was “getting rid of anything pointy or any weapons so he could fight”, although other evidence was that the deceased did not carry a knife. Natasha said that the deceased liked his fights to be recorded. As a result, the subsequent confrontation between Gurpinar and the deceased was captured by Natasha on the video camera in the mobile phone.

Gurpinar had a plastic bag in his left hand when he declined to fight for the second time. His right hand can be clearly seen in the video footage either in or hovering above the pocket of his trousers. It was the prosecution case that he had brought a knife to the park in that pocket. It was Gurpinar’s evidence that he had not brought a knife to the park, but had picked a knife up just before the fight started and put it in his pocket. As the jury convicted him on the offensive weapon count, it can now be inferred that they accepted the prosecution case that Gurpinar had brought the knife with him to the park; however when the matter was before the trial judge, he had to approach the case on the basis that Gurpinar’s account might be true.

There was some evidence that Gurpinar looked scared; and other evidence that he looked angry. There was other evidence to the contrary. He claimed that the deceased had a reputation for carrying knives, although there was no other evidence to support the suggestion.

After Gurpinar’s second refusal to fight, the deceased made as if to turn away from Gurpinar, but then turned again and swung a punch at him, which Gurpinar dodged. As this happened, the deceased’s group shouted and jeered as if to mock Gurpinar and encourage the deceased in his attack on Gurpinar. Gurpinar did not put his hands up to defend himself, but backed away.

The video shows then that the two came together by a wall. Although at one point they were partially obscured by other onlookers, the phone footage shows Gurpinar thrusting out once at the chest of the deceased. There can be no doubt that the thrusting out was with a knife which inflicted a fatal wound to the deceased. At no time did he indicate or warn the deceased that he had a knife. The stabbing occurred just 7 seconds after the fight had started.

The deceased did not immediately realise what had happened. He continued to make threatening advances towards Gurpinar, who continued slowly to retreat from him. It was several seconds later before one of the onlookers realised that there was blood on the deceased’s T-shirt. Then the attention of the deceased was drawn to the blood. Someone said to Gurpinar that he had “bored” [i.e. stabbed) the deceased. Gurpinar replied: “did I?” Another witness said that he had denied it outright.

Thereafter the dynamic of the fight changed. It was the deceased who was now walking backwards, distractedly examining his T-shirt. Gurpinar advanced towards him, looking as if he might kick him. A few seconds later, the deceased collapsed onto his back. Despite efforts to revive him, he died at the scene.

The actions of Gurpinar after the killing

The knife was found close to the home of a friend of Gurpinar, where Gurpinar had gone immediately after the stabbing. He told his friend that he had stabbed the deceased. He admitted in evidence that he knew how serious the injury was.

At 6.10 p.m. that evening, Gurpinar sent a message on Facebook to another friend of his to say “I stabbed Leroy…today in the park”. When asked why he did that, Gurpinar said that it was because “he wanted to fight me”. Gurpinar went on to say that the deceased had dropped to the floor and was shaking. When he was subsequently told that someone else thought that the deceased was dead, Gurpinar said:

“It don’t bother me cos I didn’t wanna fight.”

Later, he asked his friend on Facebook not to tell anyone what had happened. Although there were over 900 Facebook messages after the killing, at no time did Gurpinar say that the stabbing was accidental or carried out in self-defence.

When Gurpinar was arrested, he asked whether he would go to prison and for how long. He subsequently provided a prepared statement which he denied having done anything or causing injury to anyone which could have resulted in their dying. He subsequently accepted that that was a lie.

The pathology evidence

The evidence from the pathologist was that there was a single wound, 10cm deep, in the chest of the deceased, the knife going in and slightly downwards, consistent with a right hand punching motion. The force had been mild but it went between the ribs and thereby avoided any bony obstructions. It pierced the left ventricle of the deceased’s heart.

The course of the trial

It was the defence case at trial which took place in June 2012, when Gurpinar was 15, that Gurpinar had stabbed the deceased by accident or in self-defence. In his evidence, he said that the fight was not pre-arranged and he had made clear in the park that he did not want to fight. The deceased had instigated the fight. He had not brought the knife with him to the park; he found the knife on the ground in the park and thrust out with it once. He told the jury “I did not realise I had the knife in my hand”. He had not intended to stab the deceased in the chest or cause him any serious harm. His defence was therefore (1) accident; (2) self-defence (3) lack of intent to cause really serious bodily injury.

In the course of discussions with counsel before speeches and the summing up, the judge told counsel that he intended to give directions on self-defence, the terms of which he canvassed with counsel. He then said:

“What I don’t think it is, is provocation. It’s not called that now, is it? It is called something else - loss of control. But at no stage does he say that he lost control and it seems to me that to add in a direction about loss of control would simply confuse.”

Counsel then discussed the question. Counsel for Gurpinar told the judge that it was right that loss of control was not Gurpinar’s case and that his actions were not triggered by the deceased’s violence. When counsel told the judge that, if the judge was of the view that that was not a conclusion to be drawn on the evidence, the judge interposed to say that the evidence for loss of control would be on the video. He continued:

“I don’t see it as being anything other than an added complication that doesn’t get us anywhere. The real route to manslaughter here is lack of intent. I should have said that, of course. They have got to consider accident, in which case it is no crime. They have got to consider self -defence and if it is or may be, he has got a complete defence and they have got to consider, once they have decided that it is not self-defence and is homicide, the question of intent and that is an issue. It seems to me that provocation – he doesn’t say it and it is a fight, a playground fight. All right.”

Counsel for Gurpinar was a junior counsel; Gurpinar had been advised that a certificate had been granted for Queen’s Counsel, but had decided he did not wish leading counsel to be instructed. Counsel for Gurpinar did not pursue the issue of loss of control. He subsequently explained that he considered that manslaughter by loss of control was inconsistent with the way the case was being run by Gurpinar and with the evidence as it emerged. Gurpinar’s instructions and the evidence which he gave was that he acted without thinking in the heat of the moment under pressure of a sudden violent attack. The evidence as given by Gurpinar (who had at no stage indicated that he lost control) and as recorded on the video was not indicative of a loss of control. The evidence was indicative of an instinctive reaction to hit out at the deceased both in panic to stop the attack and in order to defend himself. Leaving manslaughter by way of loss of self-control to the jury would be an unnecessary and complicated distraction. It was safer simply to leave involuntary manslaughter as an alternative.

The judge therefore did not direct the jury in relation to loss of control. He directed the jury on the issues of accident, self-defence, and intention to kill or to cause really serious bodily harm.

Gurpinar was convicted of murder (by majority) and possession of the offensive weapon (unanimously).

The application for leave

Trial counsel advised on an appeal on the basis that the judge refused a defence application as to the time when Gurpinar should have begun his cross- examination and the judge’s answer to a question from the jury. Leave was refused by the Single Judge in October 2012 and the application was not renewed.

In January 2014, Mr Bennathan QC advised that an amended application for leave to appeal be made on the ground that the judge should have left the issue of loss of control to the jury. On 8 July 2014, the Full Court granted leave to appeal on that single ground and the necessary extension of time.

The submissions on the appeal

On the appeal, Mr Bennathan QC submitted, with elegant skill, that the judge ought to have left the partial defence of loss of control as there was sufficient evidence:

As the judge had not obtained the benefit of the assistance from counsel and did not have the benefit of the guidance given in Clinton and Dawes, he did not set out an analysis of the reasons why he did not leave the defence to the jury.

However, we have had the benefit of seeing and studying the video and considering the evidence. In the result we have concluded that the judge was right not to leave the defence to the jury. Our reasons are as follows:

We therefore dismiss the appeal.

The disorder

On the afternoon of Friday 29 June 2012 a violent disorder took place within a mall at the Westfield Shopping Centre in Stratford, East London, when two groups of young men (which we shall refer to as Groups A and B) clashed. One young man of 24 (Liam Woodards) in Group B lost his life when stabbed in the chest by the appellant Kojo-Smith, who was in Group A. It was followed by another violent disorder in the Stratford underground station when some of those from Group B attacked some members of Group A.

Kojo-Smith was charged with the murder of Woodards on Count 1 of the indictment. Count 2 related to the disorder in the shopping mall, and Count 3 to that in the underground station. Other members of Group A were charged with violent disorder within the shopping mall, and some members of Group B were charged with violent disorder in both the shopping mall (Count 2) and underground station (Count 3)

In 2013, there was a trial before HH Judge Kramer QC. Some defendants pleaded guilty and were sentenced by Judge Kramer QC. Others stood trial but a retrial was ordered of those who stood trial before him. That retrial was heard by HH Judge Marks QC between 23 January 2014 and 4 April 2014. It concerned Kojo-Smith, the applicant Tony Caton and five other defendants, three called Alvaranga, Rigabie and Legemah (charged on Count 2) and two called Vaughan and Oleyede who were charged on both Counts 2 and 3. Kojo-Smith was convicted of murder, Tony Caton was convicted of both counts of violent disorder, Legemah was convicted of violent disorder in the mall (Count 2) and the other four defendants were acquitted of violent disorder. Those convicted were sentenced on 7 April 2014.

The groups

It is helpful to set out the membership of the various defendants in the two groups A and B in a table, which also sets out what happened to the various counts. The deceased Liam Woodards was in Group B.

Group A

Group B

Kojo-Smith appeals with the leave of the single judge against his conviction for murder. He does so on one ground, namely the trial judge should have left the defence of loss of control to the jury.

The respective cases

Group B had spent part of the afternoon of 29 June 2012 at Las Iguanas at the Westfield Shopping Centre celebrating the deceased’s 24^th birthday. They left Las Iguanas at 4.15 pm, taking their drinking glasses with them into the mall. They encountered Group A in the central arcade.

Within a very short period of a few minutes a violent disorder had occurred within the mall near the Yoo-Moo Yoghurt stall. In general terms, the violent disorder, the subject of Count 2, broke out after some in Group B had thrown a drinking glass and a yoghurt pot at Group A, which included Kojo-Smith. During the course of the violent disorder Woodards was stabbed by Kojo-Smith.

It was the case for the prosecution that, after members of Group B had thrown a yoghurt pot and a glass, Kojo-Smith stabbed Woodards in response to a glass hitting his shoulder. It was the defence case that Kojo-Smith had acted in self–defence. Members of Group B had acted aggressively, one had a knife. He was frightened and took a knife when passed to him. He put it in his pocket. He made to leave, but others in Group B followed him and when he believed he was about to be stabbed by Woodward, he took the knife out and swung at him; he had not realised he had stabbed him.

What happened was witnessed by those working in retail and food outlets, or were visiting the mall. There was also CCTV film taken from within various shops and outlets, or from cameras in the public parts of the centre. Understandably not all events were seen by any one of those witnesses, and the available CCTV footage only shows parts of what happened.

The CCTV evidence

Detective Constable Dalloway gave evidenceregarding the CCTV footage and gave a description of the events it contained, including Kojo-Smith’s movements immediately after the stabbing when he wandered into a staff area of Westfield and into a Clinton Cards store.

As to the incident in which Woodards was stabbed, the CCTV footage showed the following:

The eye witness evidence called by the prosecution.

Some of the eye-witness accounts related to earlier events in a store, Choice, where it was said that some members of Group A, including Kojo-Smith, had behaved aggressively towards another smaller group and had suggested to them that they go outside and fight. Group A was asked to leave the store, and did so.

The significant part related to the events after 4.15 p.m.

The scientific evidence

Dr Carey, a pathologist, said the cause of death was a stab wound to the deceased’s heart. The force used to inflict that wound was moderate or more, but not as severe as that described as the force required for a blade to go through a bone. The depth of the penetration was about 12cm. The deceased would have been effectively dead almost immediately. There was also an incised wound to the deceased’s chin which was consistent with a blade passing across the skin and would have required stitches had it been the only wound. It could not have been caused by the deceased falling to the floor and was an entirely separate blow from the chest wound.

In respect of the allegations of kicking on the ground, there was no evidence of blunt trauma; although the deceased may have been stamped on/kicked on the ground but not with severe force, as no skin was broken or bones fractured. His clothing and the lack of blood pressure caused by the stabbing would also have prevented any bruising.

The toxicology report showed that the deceased had a blood alcohol level of 178, twice the permitted limit for driving. At the time of his death he would have been significantly under the influence of alcohol. He was also under the influence of cannabis.

Kojo-Smith’s evidence

Kojo-Smith’s was aged 19 years at trial, but was aged 17 years at the time of the killing. His evidence was that on that day he had arranged to meet the co-accused Mullings, who was a friend from college. He then planned to go to Arsenal football ground where he was due to coach youngsters at 5 p.m. He arrived in Westfield by 2.50 p.m. and he met up with Anderson, Mullings and Townsend and went to a number of shops including Choice.

As to the altercation at Choice, Kojo-Smith said that he was in the store when he saw his friend Gideon from Walthamstow. They were chatting about football and catching up. He asked one of the youths at the counter if they had been at school together in Enfield and his friend Anderson was having an argument about a girlfriend. The manager told them all to go outside. Kojo-Smith made no threats to anyone and he never heard anyone say they should fight outside. There was no reason for the smaller group to have a security escort out of the shop.

Kojo-Smith went to McDonald’s and to a cash machine to check whether his mother had put some money into his account, but she had not. He then went into FootAsylum and was planning on leaving after that. He was also with a youth called Price by that stage and outside the shop he met Rigabie (who he knew through his sister) and Alvaranga (whom he did not know).

His group were standing outside FootAsylum when the deceased’s group started shouting at them and asking where they were from and what they were doing in Westfield. Their tone was aggressive and threatening and they were gesturing towards their waistbands that they had knives. Ndefo (from Group B) had a flick knife in his hand. Group A were not doing anything aggressive but at that point Mullings handed a knife to him without saying anything. He put it in his right hand trouser pocket. The approaching group then started throwing things at them. Kojo-Smith moved backwards. Kojo-Smith was then facing the deceased. The trial judge summarised his evidence in his summing up

“I was backing up. Liam Woodards was gesturing to me that he had a weapon, putting his hand inside his waistband and moving it around. He said to me, ‘You’re big; why are you moving back like a pussy? I’m gonna stab you, come.’ I kept on telling him, ‘Move away from me, move back’, but he didn’t. I 100 percent believed that he was going to stab me. I kept backing away but he kept on coming closer, closer and closer. I guess he could see that I was frightened. All of a sudden I got hit by something on my right shoulder that was thrown. I tried to cover my face and ducked down. People were rushing towards me. I was scared. I took the knife out at this point in order to scare them off so that they would back off. It was all so fast. I came forwards and instinctively, and in order to defend myself, I swung once. Liam Woodards was coming towards me. If I hadn’t done that, I thought that I would get stabbed or worse.”

He said that after he saw the deceased going backwards, he immediately turned and ran away. He ended up in a staff area. He put the knife in a bin in that area and removed his blue hooded top because he was sweating and because he did not want the boys in the rival group to pursue him. He ran into Clintons Cards when he saw Ndefo. He was very frightened.

Kojo-Smith rang Mullings at 4.30 p.m. and asked him where he was and told him that he had got rid of the knife. He then went to the underground and went home and was home by 5.11 p.m. When Mullings rang him and told him the deceased was dead he did not believe it. He disposed of his clothes in Hackney Marshes and stayed with a girl in North West London. He also disposed of his mobile phone to prevent him being tracked by the police. Eventually he told his mother what had happened and then went to the police station to hand himself in nine days later. He was very scared and was in shock in the police station, where he remained silent in his interview. It felt like he was dead. He regretted everything that had happened in Westfield that day.

After the end of the evidence, Ms McAtasney QC made a submission on behalf of Kojo-Smith that the defence of loss of self-control should be left to the jury. She provided a skeleton argument which argued, drawing on Archbold Criminal Pleading Evidence and Practice, (2014 edition), at paragraphs 19-55 and following, that there was evidence on which the jury might find loss of control:

It will be noted that Ms McAtasney QC never addressed the judge on the issue of loss of self-control in any direct form. She concentrated on the question of whether there was provocative conduct by Woodards, which she described as falling within s.55(3) or arguably s.55(4) or (5). Nowhere did she address the tests set by section 55(4) for the words or conduct in question to qualify as a trigger. In fact s.55(3) deals with “D’s fear of serious violence from V against D or another identified person.” Her argument did not appear to have referred to Kojo-Smith’s own evidence about his fear of violence. It also omitted any reference to the third test in section 54(1).

We do not have any skeleton argument submitted by prosecution counsel, Mr Jafferjee QC, but the trial judge records him as having submitted that there was no loss of self-control. The trial judge in his ruling, when addressing the question of loss of self-control, referred to Ms McAtasney QC’s only basis for arguing that self-control was lost was the fact of the stabbing itself, which was sudden and swift, and followed on Kojo-Smith backing away. Ms McAtasney QC told this court, when asked, that while the skeleton did not argue the issue of loss of self-control, she must have referred in oral submissions to the stabbing in that context.

The trial judge dealt with the matter by a written ruling. No doubt because of the way in which the arguments had been put before him, he referred to the pre-Act case law. He accepted that he had the duty to leave the defence to the jury:

“if the judge considers that there is some evidence of a specific act or words of provocation resulting in a loss of self-control, even though he, the judge, believes the circumstances to be such that no reasonable man could have acted as the Defendant did.”

He recorded the fact that Kojo-Smith had not advanced the defence and had relied solely on self-defence. That was not a reason per se not to leave it to the jury.

He then addressed the issue on the basis that he had to be satisfied that there was evidence under what he described as two quite separate headings:

He accepted that there was evidence under his first heading in relation to a qualifying trigger, referring to the matters set out by Ms McAtasney QC in her skeleton, as summarised at paragraph 79.i) above.

When he turned to his second heading (that the killing resulted from loss of self-control) he referred to Ms McAtasney QC’s submission that the attack by Kojo-Smith was itself evidence of a loss of self-control. He then referred to the conflicting evidence about the knife - the prosecution saying that he was armed with it from the outset, and the defence case that he had been handed it by a friend. He referred to the defence case that Kojo-Smith found himself in a confrontation with Woodards, and that Woodards was insinuating that he had a knife in his waistband and was threatening to stab him.

The judge concluded:

“12.

On any view of the matter he produced the knife from his pocket - he said for the purpose effectively of scaring [Woodards] off - and swung it at [Woodards’] chest, he maintained once, whereas the prosecution said twice, on one of the occasions causing a small stab wound to the chin, on the other a fatal stab wound through the chest.

13.

There was in addition some (disputed) evidence that [Woodards] was then very briefly kicked on the ground.

14.

He then immediately ran off, was on his phone within a minute and quickly thereafter disposed of the knife.

15.

Against the above background, and taking account of both the eye witness evidence as well as his own account of how he acted before, during and after the stabbing, in my judgment there is no evidential basis for this having occurred in circumstances whereby [Kojo-Smith] had in fact lost control.

16.

On the contrary, whatever view the jury take as to his motivation in acting as he did, all the evidence points to D having acted throughout in a deliberate purposeful way that was thought out. Accordingly I do not intend to leave this defence to the jury.”

Although the judge did not follow the sequential route in section 54(1) (as set out in Clinton), and approached the second component first, that makes no difference if his conclusion on the first component (loss of self-control) was not open to challenge. He did not deal with the third component (under section 54(1)(c)), again probably because of the way matters were put to him. But if the case failed on the first component, it did not matter to the outcome if the third component was not addressed.

During argument the Court invited Ms McAtasney QC to put before us in writing any further submissions she wished, identifying any evidence at the trial on which she said the jury could have relied as showing that there had been a loss of self-control. We are grateful to her for her further submissions. Her submissions both during argument and after can be summarised:

We should record for the sake of completeness that the judge recorded the prosecution’s case in cross-examination of Kojo-Smith as being that he reacted angrily. That was also asserted in the Respondent’s Notice to this Court.

No doubt because of the way in which the submissions were put to him, the judge dealt with the second component of the defence of loss of control first. He would have been much assisted by Counsel had he heard submissions which followed the structure set out in section 54(1) of the Act, as set out in Clinton and Dawes.

As we have said at paragraph 14 above, a judge must under the Act carry out a rigorous evaluation of the evidence. As was set out in Clinton at paragraph 46, that evaluation must be premised on the distinct functions of the judge and jury and be grounded upon a common sense assessment. It is the trial judge who will have the best feel for the nature and strength of the evidence. We are prepared to accept the judge’s conclusion that there was evidence which was capable of showing a qualifying trigger under s.55(3) or (4), or (5), despite the fact that in our view the judge reached that conclusion applying too favourable a view of the evidential hurdle on that issue. We are also prepared to accept that such evidence, being evidence of what was occurring at the time in question, has relevance when considering whether there has been a loss of self-control.

However we see no reason to disagree with the judge’s analytical assessment of the first component of the defence of loss of control – namely his assessment that there was insufficient evidence that the killing had resulted from any loss of self-control. There was of course a great deal of evidence that Kojo-Smith had acted aggressively himself, but the judge had to consider whether there was evidence of any loss of self-control, and in doing so he looked at all the evidence, including that of Kojo-Smith. The written submissions made to the judge by his counsel never addressed the issue, and appear to have relied orally on the fact of the blows. Kojo-Smith did not say in evidence that he had lost control, and gave an account of swinging the knife to scare away Woodards, rather than of striking him a deliberate blow to hurt him. While there was evidence that he was angry, that did not in this case demonstrate a sufficient loss of self-control to fall within the scope of the first component.

We are therefore of the view that there is no basis upon which we should interfere with the assessment made by the very experienced trial judge, who had the advantage of seeing and hearing all the evidence.

Although the judge did not rule upon the third component in section 54(1) (and had no need to given the failure of the potential defence to meet the first component), we consider that Kojo-Smith would have had great difficulty in showing there was sufficient evidence to satisfy the third component. As noted above, it too was not the subject of any submissions from his counsel in her written skeleton, and there is no suggestion in the judge’s ruling that prosecution counsel addressed it either.

This case bears out the critical importance of advocates, when making submissions on the issue of whether the defence of loss of control should be left to the jury, following the clear guidance in Clinton and Dawes on the approach and the components.

It follows from the above that Kojo-Smith’s appeal is dismissed.

The background

Tony Caton renews his application for leave to appeal against conviction and sentence. It was contended on his behalf that:

As set out above, Tony Caton was indicted on two counts of violent disorder, relating to the incident in the mall (Count 2) and that in the underground station (Count 3). The evidence on Count 2 has been set out above. So far as Count 3 is concerned, the evidence was as follows.

Group B was seen to enter the station after Group A. As Alvaranga and Rigabie from Group A were about to pass through the ticket barriers, Ndefo lunged at Alvaranga with a knife. Alvaranga was pursued by Tony and Danny Caton. Regisford removed his belt, swinging it as he went through the barrier after Alvaranga. Tony Caton also undid his belt, and with the rest of Group B burst through the barriers ready to attack the two members of Group A. The two Caton brothers and Ndefo chased Alvaranga and Rigabie on to the escalators, followed by Vaughan. They desisted when they saw a Police Community Support Officer ascending on the up escalator.

Eyewitnesses described the larger group (Group B) throwing punches and kicking. The police community support officer described how one of the three males running down the escalator (Tony Caton, Danny Caton and Ndefo) shouting “you fucking pussy.” Tony Caton made no comment when interviewed under caution, and gave no evidence. He had no previous convictions (save for a minor matter relating to cannabis) and the judge properly gave the jury a good character direction, but limited to the second limb given the fact that he had given no evidence.

The previous convictions of Kojo-Smith

An issue arose about a previous conviction of Kojo-Smith at the Youth Court in 2011 for battery, and for using threatening words and behaviour (although in fact the allegation by the Crown was that he had participated in an attack on a passenger on an underground station after he had been asked to hand over his headphones). Kojo-Smith denied that he had acted in this way, saying that he had pleaded guilty when unrepresented, and should not have done so.

The Crown had applied at the start of the trial to put this before the jury under s.101(1)(d) of the CJA 2003. The judge had refused to permit it, referring to the age of Kojo-Smith, then 16, the fact that the allegation was different and much less serious, and that given the factual dispute it would be a distraction for the jury.

Kojo-Smith had given evidence in cross-examination by Tony Caton’s counsel to the effect that Tony Caton was carrying a knife as, he said, was the deceased Liam Woodards. Counsel, supported by the Crown, sought permission to cross-examine Kojo-Smith under section 101(1)(e) of the CJA 2003, namely that “it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant”. The judge refused to permit it, relying on the tenor of the cross-examination. The effect of s.106 of the CJA 2003, which limits that admissibility of evidence under section 101(1)(g) (attack on another persons character) to that adduced by the prosecution, meant that if the application by Tony Caton were to succeed, it had to be made under ground (e).

After further cross-examination by the Crown, in which Kojo-Smith stated that Tony Caton was aggressive and shouting and appeared to have something in his hand when he approached, which his body language suggested was a knife, the application was renewed. According to the skeleton argument of his counsel, Miss Russell, the application was again made under s.101(1)(e) of CJA 2003. The trial judge refused to permit the cross-examination, on the basis that the matter was not of substantial probative value.

Miss Russell contended on the appeal that it was relevant to the issue of Kojo-Smith’s credibility, and in particular to whether he was capable of belief when he said that Group B, including Tony Caton, were the aggressors, and that Tony Caton was armed with a knife.

We see no reason to disturb the conclusion of the trial judge. In the context of this case, there was ample evidence that Kojo-Smith had acted aggressively, and the fact that he had done so in 2011 added little to it. It was also a case where there was no allegation that a knife was used, and was a quite different allegation.

In any event, it is highly unlikely to have affected the jury’s view of the case had the previous conviction been admitted into the evidence. Kojo-Smith was convicted of murder, so the jury must have rejected the case of self defence by him. There was also ample evidence on Count 2 of the aggression of Group B, including Tony Caton. As to Count 3, Kojo-Smith was not present, and there was again ample evidence of Tony Caton’s involvement in the violent disorder.

We do not consider that the convictions of Tony Caton were in any sense unsafe. We refuse the application for leave to appeal against conviction.

It is argued by Miss Russell that the sentences of 3 years on each count concurrent imposed on Tony Caton were manifestly excessive. She pointed to the sentences passed on the defendants Anderson, Mullings, Danny Caton, Ndefo and Regisford, all of whom had pleaded guilty before Judge Kramer QC.

This was a case where Tony Caton and others had taken part in two incidents of serious violent disorder within very public places; the one a busy shopping centre, and the other a very busy underground station. Although he found that he did not have a knife, others did. He took part in the throwing of glasses. As the trial judge said, the experience of witnessing fighting and aggression must have terrified the many innocent members of the public and shop workers who had the misfortune to be caught up in it. The trial judge took into account his good character and the references submitted about him. The trial judge referred to the fact that when Judge Kramer QC sentenced Tony Caton’s brother Danny Caton, he had said that he would have received a sentence of three and a half years after a trial. This trial judge regarded Tony Caton as “slightly less culpable” than his brother Danny Caton.

That being so, it seems to this Court that there is no disparity at all between the others convicted of both Counts 2 and 3 and Tony Caton. This was a severe sentence, but given the crimes that were committed we do not consider that it was in any sense excessive. The application for leave is therefore refused.