Gurpinar V R

A case dealing with when a judge should leave the partial defence of loss of self-control to a jury in a murder

Several appeals were heard together. This summary focuses on the issue of when the defence of loss of self-control should be left to a jury and the case of the appellant Gurpinar.

Gurpinar was convicted of murder and sentenced to life imprisonment with a minimum term of 13 years. An application to appeal was made on the grounds that the issue of loss of self-control should have been left to the jury. It was common ground that the judge must consider the issue whether or not the defence raises it.

The appeal court noted that, 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. This is done by considering sequentially the three principal components of the defence, as set out in R v Clinton & others [2012] EWCA Crim 2:

i) The killing must have resulted from the defendant's loss of self-control;
ii) The loss of self-control had a qualifying trigger; and
iii) A person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in a similar way to the defendant.

The fact that the defendant gave evidence which did not support loss of self-control is only one factor, albeit a significant one.

Held:
A. A judge must proceed on the premise that the jury may take a different view of the evidence, more favourable to the defendant than that which the judge may have found;
B. A judge must 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;
C. If there is insufficient evidence for any one component it is not necessary to consider the next;
D. A 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; and
E. Counsel should assist the judge in this process with submissions focused on the R v Clinton three stage test.

The appeal was dismissed on the basis that, had the trial judge considered his duty according to these principles, and assuming the jury considered the facts in this area of evidence in the most favourable way to the appellant, the defence should still not have been before this jury on these particular facts.