8.5.1 Unlawful Act Manslaughter

On 21 January 2021, the Court of Appeal handed down its judgment in R v Dawson [2021] EWCA Crim 40.

This case concerned applications for leave to appeal against the conviction and sentence of Carol and Scott Dawson, for the murder of Gary Dean. 

In summary, the victim was an evident annoyance to the applicants, often acting in an antisocial manner, including the alleged harassment of, and causing damage to property belonging to, Scott Dawson. The Crown’s case was that the applicants had acted together in killing the victim out of revenge for the trouble he had caused to them (both mentally and financially). The Crown’s case was based entirely on circumstantial evidence; there being no direct evidence to demonstrate that either applicant had been involved in the killing. The defence case was that neither Carol nor Scott Dawson had been involved in the killing. Whilst neither applicant gave evidence at trial, the argument made by the defence was that the prosecution had failed to prove their guilt due to their reliance on circumstantial evidence. The jury convicted the pair unanimously. 

The applicants sought leave to appeal to the Court of Appeal on several bases, namely: (i) that the defence of loss of self-control ought to have been left to the jury (in respect of Scott Dawson); (ii) that the judge was wrong to admit a balaclava matching the DNA of Carol Dawson into evidence; and (iii) that the sentences imposed were manifestly excessive. 

The Court of Appeal, led by the Vice President, Fulford LJ, dismissed the applications for leave in respect of the first two grounds, but granted leave to appeal against sentence. This update shall focus entirely on the first ground of appeal: loss of self-control.

At [15]–[29], Fulford LJ dealt with the application for leave to appeal against conviction brought by Scott Dawson. In summary, the applicant contended that the trial judge (HHJ Richardson QC) ought to have left the partial defence of loss of self-control to the jury. This ground was raised despite the fact that the applicant’s case at trial was that he had no involvement in the killing; nor did the applicant attempt to dispute the jury’s finding that he was so involved in the killing. 

At trial, evidence was provided that Scott Dawson had a ‘quick and volatile temper’ (at [16]) and that this, in combination with the provocative conduct of the deceased, was sufficient for a jury to have been reasonably satisfied that the applicant may have lost his self-control. In his ruling, the trial judge rejected the defence of loss of control, finding that whilst the applicant may have been ‘extremely irritated’ by the deceased, ‘it does not cross, in my judgment, the threshold into the defence of loss of control’ (at [18]). HHJ Richardson QC made particular reference to the judgment of Lord Judge CJ in R v Dawes [2014] 1 WLR 947, who explained (at [60] of Dawes):

‘For the individual with normal capacity of self-restraint and tolerance, unless the circumstances are extremely grave, normal irritation, and even serious anger do not often cross the threshold into loss of control.’

The learned trial judge also made reference to s 54(4) of the Coroners and Justice Act (CJA) 2009, identifying that this killing could have been viewed as being pursued as a ‘considered desire for revenge’ on the part of the applicants.

In the Court of Appeal, Fulford LJ approached each element of the partial defence in turn. First, his Lordship dealt with the issue of whether the applicant had lost his self-control. Whilst the learned trial judge had accepted that this was a possibility, Fulford LJ rejected any notion that the applicant could have lost his self-control. Fulford LJ explained his reasoning as such: ‘In our judgment, the evidence was either entirely neutral on this issue or it tended instead to indicate this was a deliberate and calculated assault, motivated by a desire for revenge.’ (at [22]) His Lordship emphasised at [23] that particularly brutal or ‘sustained and gratuitously violent’ assaults did not, by default, give rise to an inference that there has been a loss of self-control. Relying on the judgment of Davis LJ in R v Goodwin [2018] EWCA Crim 2287, Fulford LJ explained that the possibility of there being a loss of self-control ‘will often depend on the other evidence in the trial’ (at [23]). In this case, the Court was unconvinced that any evidence existed to demonstrate that the applicant had lost his control.

In light of this, Fulford LJ quickly dealt with the second and third condition for a loss of self-control to be made out. In respect of the second condition (the qualifying trigger), Fulford LJ agreed with the trial judge that whilst the deceased’s conduct was ‘highly irritating’ and often cumulative in nature, there was insufficient evidence to prove a qualifying trigger. In particular, Fulford LJ explained (at [26]):

‘But even viewed cumulatively, they do not come close to providing circumstances of an extremely grave character that would give rise to a justifiable sense of being seriously wronged.’ (original emphasis)

The third condition (whether a person might have reacted in the same or similar way) was dealt with speedily (at [28]): ‘Given our conclusions as to the absence of evidence as regards loss of control and a qualifying trigger, this consideration falls away.’

At [29], Fulford LJ concluded that there was an insufficient evidential basis for leaving loss of self-control to the jury. As a result of that conclusion, Fulford LJ refused the application for leave to appeal against conviction.

Comment

The case of Dawson offers no new, or additional, commentary on the law of loss of self-control. Dawson does, however, act as a useful reaffirmation of the principles behind the defence. Some particular matters are worth highlighting here. First, at numerous points in his judgment, Fulford LJ identifies that the loss of self-control requires a ‘much more rigorous evaluation of the evidence before the defence can be left to the jury than was required under the former law of provocation’ (at [21]). Second, Fulford LJ sought to highlight the particularly stringent threshold to be applied in respect of loss of self-control, choosing to add emphasis to the word ‘extremely’ in his judgment, in the context of ‘extremely grave character’ (at [26]). Finally, his Lordship made a point to dispel belief that a particularly brutal or violent attack could provide sufficient evidence for a loss of self-control, without further evidence. In his Lordship’s words, there may be a ’wide range of reasons’ for such brutal and prolonged attacks that do not involve a loss of self-control. Dawson provides a helpful reminder to counsel as to the particularly high threshold applied to loss of self-control and the need for the judge to undertake a thorough and detailed review of the evidence.

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