R v McGrory
Court of Appeal
Citations:  EWCA Crim 2336.
The defendant killed his wife by strangling after she told him that she was having an affair and wanted a divorce. Some time later he calmly called the police. When they arrived he told them that he had ‘just flipped’ and only vaguely remembered what he had done.
At trial for murder, the defendant attempted to rely on the defences of loss of control and diminished responsibility. The prosecution told the jury that the wife had accused the defendant multiple times of domestic abuse, particularly strangling. No prosecution was ever pursued, however, and the defendant denied these allegations. The jury was also told that the defendant also suffered from depression.
The defendant was convicted of murder. He appealed on the following grounds:
- The judge was wrong to admit the previous domestic abuse allegations into evidence of bad character under the Criminal Justice Act 2003 exceptions. This was because the defendant admitted he had strangled his wife;
- The domestic abuse allegations were also inadmissible because they were hearsay – based on the testimony of the wife – and formed the sole and decisive evidence against him;
- The jury should have been allowed to consider the defendant’s mental health problems when assessing whether the loss of control defence applied.
- Was the judge right to admit the domestic abuse allegations?
- Was the domestic abuse evidence inadmissible hearsay?
- Can a jury take into account the defendant’s mental health when determining the loss of control defence?
The Court of Appeal upheld the conviction on the following grounds:
- The domestic abuse allegations were relevant to whether the defendant was affected by diminished responsibility or loss of control. It might indicate that strangling was something the defendant did even when in complete control of his faculties.
- The domestic abuse allegations were admissible hearsay. They did not affect the defendant’s human rights. This was because the case against him was not based solely or decisively on that evidence.
- When determining whether a person of reasonable self-restraint would have acted as the defendant did for the purposes of loss of control, the jury cannot take into account features of the defendant that bear solely on their ability to restrain themselves. In this case, the defendant’s depression was only relevant to his ability to restrain himself.
This Case is Authority For…
When applying the loss of control defence: characteristics which bear solely on the defendant’s ability to exercise control or restraint are to be disregarded when assessing whether a person of reasonable self-control might have acted the same way as the defendant.
The Court of Appeal approved of the trial judge’s definition of loss of control, though they noted that it is not normally necessary to give a specific direction on what it means to the jury:
‘Self-control is the same thing as self restraint. It is a person’s ability to resist an impulse or an urge to act. Loss of control is something more than mere anger. A defendant loses his self control if his ability to restrain himself was so overwhelmed that he could not resist the impulse to attack. In other words he was no longer master of his actions.’