George R. Sullivan’s research while affiliated with University of London and other places

The article critiques the ‘loss of self-control’ requirement within Loss of Control partial defence, investigating its meaning (legally and scientifically), as well as its theoretical purpose. We contend that the partial defence currently performs a curious and problematic role, promoting questions of self-control, that are most effectively dealt with at a post-conviction stage (ie, at sentencing), into questions for the liability stage. This could be (perhaps best) resolved through the abolition of the mandatory life sentence for murder, and subsequent abolition of the partial defences, but it is accepted that the current political reality weighs heavily against this option. Looking for viable alternatives, we highlight the advantages of an approach that maximises discretion based on a full appraisal of potentially extenuating circumstances; before discussing how the current partial defence, including the requirement for a loss of self-control, should be interpreted to move the current law closer to this goal.

Simon Taj began drinking heavily on Friday 29 January 2016 and continued into the early hours of Saturday 30 January. At roughly 2 pm on Sunday 31st January 2016, Taj came across the broken-down vehicle of Mohammed Awain. The vehicle was smoking, and Awain was standing beside it. Unfortunately, Taj mistook the wires and equipment he saw in the open boot of Awain’s car (Mr Awain is an electrician) as the components of a terrorist bomb which he was on the point of assembling to explode. Taj called the police, who attended the scene, to find that Awain was entirely innocent. Taj initially drove away following police assurances as to Awain’s innocence, but soon returned, still convinced that Awain was indeed a terrorist. Taj felt that he must do something to stop him. At 2.46 pm, Taj launched a ferocious attack on Awain with a metal tyre lever, almost killing him. When police arrived and restrained Taj, he expressed surprise – ‘why are you arresting me he's the terrorist’. Taj was so calm and lucid at interview, the police officers present did not arrange for blood samples to be taken. He was charged with attempted murder, but claimed to have acted in self-defence on the basis of his mistaken belief.

Background: In the recent case of R v Taj, the Court of Appeal of England & Wales upheld the conviction of a defendant who, in a psychotic delusional state, mistook his non-threatening victim to be a terrorist, violently attacking him. The law typically allows honest mistakes (even if unreasonable) as a basis for self-defence (in this case the defence of others). But because Taj's delusions were found by the court to have been caused by voluntary alcohol consumption, special legal (prior-fault) intoxication rules were applied to block his defence; Taj was convicted and sentenced to 19 years for attempted murder. Argument: We focus here on the simple question - what does it mean to be intoxicated? On the facts, Taj did not have drugs active in his system at the time of the attack, but the court nonetheless insisted that Taj's delusional mistake was 'attributable to intoxication', namely to drink and drug-taking in the previous days and weeks. This extended conception of intoxication was questionably distinguished from psychosis induced by withdrawal. Furthermore, the court was unreceptive to evidence of a long-standing, underlying mental health disorder. We argue that the court's expanded view of intoxication is problematic in that intoxication-induced psychosis cannot be sharply distinguished from other causes such as mental disorders. And even if it could be distinguished, it should not give rise to blame and punishment in the same way as conduct induced by chemically active intoxicants ('drug-on-board') does. Conclusion: The courts' expansion of the definition of intoxication is both legally and forensically problematic, introducing legal vagaries where the clinical science is already vague. And with intoxication frequently interlocking with historic intoxication and secondary or co-morbid mental health conditions, the decision risks inappropriately and/or over-criminalising defendants.