R v Dawes, [2013] WLR(D) 130 Court of Appeal

The defendant, Mark Dawes went to his estranged wife’s house and found her asleep on the sofa with Graham Pethard. He awoke him and started punching him in the face and hitting him with a bottle. According to the defendant, Pethard took the bottle off him and attacked him. The defendant then grabbed a knife from the kitchen and fatally stabbed him in the neck. At trial he raised the defence of self-defence which was not accepted by the jury. The judge held that the defence of loss of control could not be put to the jury under s.55(6)(a) as he had incited the violence. He was convicted of murder and appealed contending the defence of loss of control should have been put to the jury on the grounds that the case of R v Johnson 1989 was still good law and had survived the legislative provision.

Held: 

S.55(6)(a) did not overrule R v Johnson. On the facts there was insufficient evidence that it was Dawes purpose to provide him with an excuse or opportunity to use violence. However, the judge was correct for not leaving the  loss of control defence to the jury as there was insufficient evidence that he had lost his control

Lord Chief Justice:

“There was some debate about the continuing authority, if any, of Johnson [1989] 89 Cr. App. R 148, decided in the context of the former provocation defence. In that case the court rejected the submission "that the mere fact that a defendant caused a reaction in others, which in turn led him to lose his self-control, should result in the issue of provocation being outside a jury's consideration". In our judgment, for the purposes of the loss of control defence, the impact of Johnson is now diminished, but not wholly extinguished by the new statutory provisions. One may wonder (and the judge would have to consider) how often a defendant who is out to incite violence could be said to "fear" serious violence; often he may be welcoming it. Similarly, one may wonder how such a defendant may have a justifiable sense of being seriously wronged if he successfully incites someone else to use violence towards him. Those are legitimate issues for consideration, but as a matter of statutory construction, the mere fact that in some general way the defendant was behaving badly and looking for and provoking trouble does not of itself lead to the disapplication of the qualifying triggers based on s.55(3)(4) and (5) unless his actions were intended to provide him with the excuse or opportunity to use violence. As Johnson no longer fully reflects the appropriate principle, further reference to it is inappropriate. The relevant principle is identified in the present judgment.”

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