R v William Cosier

We record that the Crown Court made an order under s.45 Youth Justice and Criminal Evidence Act 1999 to protect the identity of a child witness. That order remains extant until the witness turns 18. We confirm that the witness is not named in or identifiable from this judgment.

On 9 October 2024, the appellant was convicted of murder following a trial at Canterbury Crown Court presided over by HHJ Simon James, the Recorder of Canterbury.

On 1 November 2024, the same judge sentenced the appellant to imprisonment for life with a minimum term of 25 years, which was reduced to 24 years and 134 days to take account of time spent on remand.

The appellant appeals against conviction with the leave of the single judge on one ground, relating to the trial judge’s refusal to leave the partial defence of loss of control to the jury.

The appellant seeks to renew his application for leave to appeal against sentence and seeks a short extension of time to do so, both applications having been refused by the single judge.

On 14 March 2024, the appellant killed Adam Pritchard (‘the deceased’) with a single stab wound to the chest. Before the day in question, the deceased was not known to the appellant.

The incident occurred outside the Queen’s Head Public House where the appellant and his friend, Craig Brabon, had spent the day drinking. Craig Brabon was engaged in a long-running argument with the deceased. The appellant got involved in that argument and was overheard having a heated phone conversation with the deceased at around 8.30pm.

During the evening, the appellant went into the pub kitchen on several occasions. At around 7.47pm he picked up a red-handled knife while there. That knife was swiftly returned to its proper place but as he handled that knife the appellant discussed how to stab someone through their ribs. At around 8.49pm, the appellant again went to the kitchen and again picked up the red-handled knife. This time he left it on the kitchen countertop as the appellant chatted with pub staff. At 10.18pm the appellant picked up a green-handled knife which he put in his back pocket before going back to the bar area and then into the garden. The appellant handed that knife to one of the pub staff who put it back in the kitchen.

At 10.34pm, the deceased arrived at the pub accompanied by Leigh Bean. CCTV footage showed that the deceased came into the pub and walked straight over to where the deceased and Craig Brabon were sitting, quietly, at the bar. There was a short scuffle before the deceased left the pub. The appellant threw the first punch but was only momentarily ahead of the deceased who was clearly looking for a fight.

At 10.36pm, the appellant went to the pub kitchen again and this time picked up a yellow-handled knife. Others present asked him to put the knife down. The appellant took the knife out of the kitchen, into the pub area and then outside onto the street, holding it behind his back. The deceased was outside the pub. The two exchanged words. The appellant came back into and then went out of the pub on two further occasions, still holding the knife. After he went out for a third time, there was a fight on the street during which the deceased fired a BB gun at the appellant and the appellant fatally stabbed the deceased.

The day after the stabbing, the appellant handed himself in to the police. He was arrested and interviewed. He exercised his right to silence in the police interview but provided a prepared statement which gave his account of the incident, essentially that the deceased had shot him multiple times to the head and neck and that the appellant had acted in self-defence.

At trial the main defence was self-defence. The appellant said that he was protecting himself and others, fearing that the deceased would shoot him or them.

The prosecution adduced evidence of various sorts. They called a number of factual witnesses to the events. They relied on CCTV images of both parts of the altercation, inside the pub and on the street outside (although the latter was of relatively poor quality). They relied on messages between the appellant and Craig Brabon, and Craig Brabon and the deceased. They relied on the appellant’s previous convictions including for violence.

The appellant gave evidence at trial. He said that he had been drinking quite heavily and had taken cocaine throughout the evening, and as a result he had limited recollection of the evening. He had no memory of fighting inside the pub when the deceased came in. On being shown the CCTV of that part of the evening, the appellant accepted that he threw the first punch at the deceased but said it was because the deceased approached in an aggressive way.

After that, the appellant said that he was aware the deceased was outside the pub. The appellant said that he panicked and thought that the deceased might have a gun. The appellant got a knife from the kitchen and told the pub landlady that he had to go outside because the deceased and the person with him had guns. The appellant thought if he stayed inside, they might fire inside and either he or an innocent bystander might get hurt. The appellant’s intention had been to wave the knife to try and scare the deceased so as to persuade him and Leigh Bean to move off. He had the knife behind his back because he did not want to come across as aggressive. He hoped to have been able to talk them down.

When outside, he said that the deceased kept pointing to a gun in his waistband. The appellant did not want to confront him, he wanted to make sure everyone in the pub was safe. The appellant produced the knife hoping the deceased would go away. He did not have any intention to use the knife to attack the deceased.

The appellant said that the deceased then produced the gun. The appellant went to grab the gun at which point the deceased grabbed him and span him so he landed on the floor. When he was on the floor the deceased shot him and the first shot connected just above his eye. The appellant thought he was going to die. The appellant could not recall stabbing the deceased. It was all a blur.

The appellant left the scene and went to his friend’s house around the corner, then onto his girlfriend’s house. He had no recollection of how he got there.

At the close of the evidence, counsel for the Defence submitted that manslaughter based on loss of control ought to be left for the jury to consider as an alternative to murder.

The judge heard oral submissions and had the benefit of written submissions from both parties. In his ruling, he referred to the three main elements of section 54(1) of the Coroners and Justice Act 2009 , which were to be considered sequentially. He reminded himself that he was required to undertake a rigorous evaluation of the evidence (citing R v Goodwin [2018] EWCA Crim 2287 , [2018] 4 WLR 165 ). He set out the salient features of the evidence. He noted that the appellant had not at any stage in his evidence positively asserted that he lost control. The appellant’s account was “of a man who was acting rationally, albeit in the heat of the moment”. The fact that loss of control was not asserted by the appellant “was a powerful point” against the appellant (citing Goodwin again). Moreover, loss of control was inconsistent with the appellant’s evidence that he was acting rationally at all times. The judge proceeded on the basis that the jury might accept that the appellant was shot before he inflicted the fatal blow (although that was not clearly established on the evidence). The judge said that the attack had not been frenzied but was a single fatal blow, with a separate slashing action which caused a relatively minor wound to the deceased. The appellant had made a conscious and rational decision to arm himself with the knife and go outside to confront the deceased with that knife. The appellant had rationally acquiesced to the knife being taken from the scene afterwards. The appellant had driven himself away from the scene shortly afterwards. The judge concluded:

“17. Rational and logical behaviour directly before and directly after a fatal blow is, whilst not of itself determinative appears to me in this case to be strong evidence that there was not in fact a momentary loss of control only at or about the point of the infliction of the fatal blow.

In my judgement there is simply no evidence of a loss of control, Mr Cosier’s evidence is of actions which were both purposeful and rational, albeit the prosecution would state unlawful. In my judgement the evidence points to the fatal blow being either in anger or in reasonable self-defence and there is no evidence of a loss of control.

I am not persuaded that the D’s purported failure to recollect significant parts of the events outside the public house provides a sufficient evidential basis for a loss of control on his part, particularly as he has insisted that he has a clear memory of all the parts of the event (both before, during and immediately after) which provide the basis for his assertion he was acting in lawful and reasonable defence of himself and others.”

The judge addressed the other elements of the partial defence. The judge did not accept that there was a qualifying trigger in the form of fear of serious violence because the appellant knew before he inflicted the fatal blow that the deceased’s weapon was not a real firearm, but was an airgun which was unlikely to be able to cause fatal or serious injury. Further and in any event, there was ample evidence of a pre-arranged confrontation, for which the appellant had armed himself, which amounted to an incitement to the deceased to attack him in order that the appellant could himself use violence on the deceased. The inference which the jury would be bound to draw was that the appellant had prepared to engage in a violent confrontation with the deceased. Section 55(6) (a) of the 2009 Act applied so that any fear of serious violence which might be established on the evidence had to be disregarded.

Further and in any event, no properly directed jury could conclude that a sober and mature adult of the appellant’s age with a normal degree of tolerance and self-restraint might have reacted in the same way in the same circumstances.

It followed that none of the three criteria in section 54(1) were met and loss of control would not be left to the jury.

In his written grounds of appeal and submissions at the hearing, Mr Higgs KC (who also represented the appellant at trial) submitted that the judge was wrong not to leave loss of control to the jury. He argued that the judge made a series of judgments on the evidence which were properly for the jury and drew inferences supportive of his own view rather than taking a balanced and objective view about what the jury might conclude. As an example, the judge said it was not a frenzied attack, but whether it was or was not was for the jury to determine. The judge wrongly conflated rational decisions by the appellant before and after the stabbing with the appellant’s uncontrolled reactions at the time of the stabbing. These were two different states of mind and different phases. The CCTV left open the question of whether the appellant had lost control at the point of the fatal stabbing.

Further, the deceased’s use of the BB gun was a qualifying trigger and the judge was wrong to conclude otherwise. The judge underplayed the importance of the gun which was not an airgun, rather it was a firearm which fired metal BBs (not pellets as the judge described them). It was not right to say that the appellant must have known that the gun was not a real gun. The deceased’s use of the gun put the appellant in fear of his life.

Further, there was no evidence of incitement sufficient to meet section 55(6) (a). There was an obvious difference between inciting a fight and inciting being shot.

Further, it was open to the jury to conclude that anyone of normal tolerance and restraint might have reacted as the appellant did and the judge should not have substituted his own view on that matter.

In summary, the judge dismantled the appellant’s case rather than carrying out a rigorous evaluation of the findings a jury might properly make based on the evidence. He should have left manslaughter by reason of loss of control to the jury and his failure to do so resulted in an unfair trial.

The Crown resisted the appeal. Mr Ramble (who was also present at trial) submitted that the judge was right not to leave loss of control to the jury for the reasons given in the ruling.

There is no dispute on the law. Section 54 of the Coroners and Justice Act 2009 provides a partial defence to murder where three criteria are met: (1) the killing resulted from the defendant’s loss of self-control; (2) the loss of self-control had a qualifying trigger (as defined); and (3) a person of the same sex and age as the defendant, with a normal degree of tolerance and restraint and in the same circumstances, might have reacted in the same or a similar way.

Section 54(5) explains the burden which shifts to the prosecution if there is “sufficient evidence” to raise an issue with respect to the partial defence; and the meaning of “sufficient evidence” is defined at section 54(6) as “evidence on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply”.

In R v Goodwin , the Court set out a non-exhaustive list of factors, drawn from the existing case law, which a trial judge should take into account (see para 33 per Davis LJ). These include the need for a common sense judgment based on an analysis of all the evidence and for a “rigorous evaluation” of the evidence. The Court also said that the trial judge should not allow the jury’s deliberations to be “cluttered up” by leaving a partial defence which did not arise on the evidence (para 35); and that it was a “powerful point” against leaving loss of control to the jury that a defendant does not assert loss of control in his evidence (para 40).

In R v Turner [2023] EWCA Crim 1626 , [2024] Crim LR 339 the Court said that the judge must not focus on their own assessment of the evidence, rather they must evaluate the findings which might be open to the jury (para 45).

A loss of control has been defined as a loss of the ability to act in accordance with considered judgment or normal powers of reasoning ( R v Jewell [2014] EWCA Crim 414 , para 24); sustained and gratuitous violence does not, in and of itself, provide sufficient evidence of loss of control ( R v Dawson [2021] EWCA Crim 40 , para 23).

The question for the judge was whether there was sufficient evidence to leave loss of self-control to the jury.

The judge noted that the appellant had not at any point asserted a loss of control; indeed, his evidence was that his actions had been rational and measured throughout, noting his evidence that he was “never in an aggressive mood but was in a defensive mood throughout”. The absence of any assertion by the appellant that he had lost control was a powerful point against him, and the judge was entitled to make that observation.

The appellant now asserts that the appellant’s lack of recollection of stabbing the deceased was or could have been inferred to be the sort of phrase a layman might use to denote a loss of control. We are unable to accept that submission. In the particular circumstances of this case, the appellant’s asserted lack of recollection is just that; it cannot reasonably be understood as a suggestion that he might have lost control and something more by way of evidence was required.

The judge had regard to the appellant’s actions before and after the stabbing, which actions he held were rational and deliberate. It was appropriate to take account of those actions as an indication of the appellant’s state of mind at the point of the stabbing. We agree with the judge’s assessment of those actions as rational and deliberate. Put the other way around, if the appellant’s actions before and after the stabbing had been uncontrolled, that would have been evidence in his favour on this issue.

The judge considered the CCTV evidence. He said that it did not show a frenzied attack. We have looked at the CCTV ourselves and we agree with the judge’s description. The deceased can be seen pointing the gun at the appellant at which point the appellant stumbled to the ground and then got up and pursued the deceased, across the road and along the pavement, brandishing the knife. This was a short and intense chase with the knife held out and brandished towards the deceased. The use of the knife cannot be reasonably described as frenzied.

The appellant argues that it was open to the jury to draw the inference that the appellant had lost self-control, even if there was no primary evidence of such a loss; it is said that the inference could properly be drawn from the CCTV, and, possibly, also from the fact that the appellant had been shot in the face with a BB gun which would have been very frightening. We are not persuaded that such an inference was properly open to the jury. The CCTV does not assist the appellant’s case on loss of control for reasons we have already discussed. As to the effect on the appellant of being shot, the CCTV does not show the appellant reacting by appearing to lose control (in the statutory sense) when he is shot. Once he has been shot, the appellant does start to use the knife in pursuit of the deceased (so that it is correct to observe, as Mr Higgs does, that he stops at that point exercising self-control not to use the knife). But the CCTV does not give any hint that the appellant was in a state of loss of control at that point. A young witness watching from her bedroom window onto the street said that although the deceased appeared to fire a number of shots, the appellant “didn’t seem to react at all”. The evidential basis for the inference suggested is simply not present.

We are not persuaded that the judge’s ruling was wrong. To the contrary, we consider he was right to conclude that there was no sufficient evidence of loss of control to justify leaving the defence to the jury.

In light of that conclusion, it is not necessary to address the appellant’s remaining arguments. We dismiss this appeal against conviction.

We grant the short extension of time requested to enable the appellant to make his application for leave to appeal against sentence because there were difficulties, not of the appellant’s making, in giving instructions to his solicitors in relation to the appeal against sentence. We grant leave to appeal against sentence.

In passing sentence, the judge held that the appellant was looking for a violent confrontation and had the intention to kill. He said that the case fell squarely into paragraph 4 of Schedule 1 of the Sentencing Act 2020 with a starting point for the minimum term of 25 years. There were significant aggravating features, including the appellant acquiescing to the disposal of the murder weapon; the fact the killing took place in front of a number of innocent bystanders; the appellant’s previous convictions for involvement with weapons and violence; that the offence was committed whilst under the influence of alcohol and illegal drugs; and that the appellant had 11 convictions for 15 offences spanning the period from November 2008 to July 2023, including convictions for battery, assault by beating of an emergency worker and possession of an offensive weapon in a public place and a sentence of 18 months imprisonment imposed on 20 July 2021 for offences of affray, possession of an offensive weapon and criminal damage. The judge thought that the aggravating factors were offset by the fact the deceased also seemed intent on violent confrontation and by the fact that the intention to kill was not premeditated. The judge held that the least minimum term that could be imposed was 25 years. Time spent on remand was 231 days for which he was given credit.

The appellant’s actions did not include any element of defence, however unreasonable;

The appellant had an intention to kill.

That the stabbing occurred in a public place;

That the appellant engineered the disposal of the knife;

That the appellant was intoxicated at the time;

Previous antecedent history.

That at the time of confrontation, the appellant was drinking peacefully with his back to the bar door but was confronted by the deceased who had driven several miles to do so;

That the deceased was armed with a loaded firearm and that the appellant knew he was from the time of the fight inside;

That the appellant went outside with the intention of protecting those inside the pub;

That the appellant did not use the knife on either the first two occasions that he went outside, nor on the third occasion until the point when the deceased produced the firearm and used it to shoot with success at the appellant’s head.

Whilst it is therefore accepted that the correct starting point was a minimum of 25 years, the failure to reduce that starting point significantly resulted in a minimum term that was manifestly excessive.

By their Respondent’s Notice, the Crown resist the appeal against sentence submitting that the judge correctly identified and balanced off the various aggravating and mitigating factors.

The judge was entitled to find that the appellant had an intention to kill. That finding was entirely consistent with the evidence as a whole. One prominent piece of evidence relevant to intention comes from an independent witness who said that the appellant stabbed the deceased and shouted “I’ll kill you. You’re dead”.

The judge had presided over the trial and was in a good position to make that assessment of intention. There is no basis for interfering with it.

We are not persuaded that the judge gave undue weight to the various aggravating factors. The stabbing was in a public place – a residential street - and others were impacted by the appellant’s actions, including a young witness and others who knew the deceased and watched him die. The knife was given to an associate and disposed of; it was never recovered as part of the investigation. The appellant did have previous convictions, and although none of them were as serious as this offence, they were relevant to sentence; the past offences had been sufficiently serious to warrant an 18 month term of imprisonment for violence being imposed in 2021. The appellant had taken alcohol and cocaine during the day, a voluntary act which was likely to have been a significant contributing factor to the escalation of violence that evening. The appellant’s evidence was that he had drunk seven or eight pints of beer, taken shots of whisky, and sniffed four or five pinches of cocaine.

The judge thought that the aggravation was offset by the facts (i) that the deceased was also intent on violent confrontation and (ii) that the appellant’s intention to kill was not premeditated. It seems to us that these were valid points in the appellant’s favour and we think, as far as it went, the judge correctly balanced the factors identified.

However, we consider that there is merit in Mr Higgs’ submissions that there was more mitigation than the judge identified or credited to the appellant.

We note that paragraph 10 of Schedule 21 lists amongst the statutory mitigating factors to which the Court should have regard, (d) provocation and (e) self-defence falling short of the full defence. There were plainly elements of both things present on the facts of this case. The appellant had been significantly provoked by the deceased, who had come to the pub for the purpose of having a fight earlier in the evening: the deceased can be seen on CCTV bursting into the pub, disturbing the appellant who was quietly drinking at the bar, and starting just such a fight (accepting that the appellant threw the first punch). Further, the deceased arrived carrying a BB gun which he showed the appellant while the pair were squaring up outside the pub; in the critical moments before the stabbing, the deceased fired the BB gun at the appellant’s face and body. This was significant provocation.

Further, the appellant said he was acting in self-defence. His judgment on the proportionality of his actions was certainly clouded by alcohol and drugs but there is no doubt that the appellant might legitimately have perceived himself to be under attack, while still falling short of the legal defence of self-defence.

Although the 25-year starting point was common ground, there is some merit in Mr Higgs’ point that the appellant was not carrying a knife when he arrived at the pub that evening, rather he went and got one from the pub kitchen and used it at the point that he felt himself under threat. He had picked up a number of knives and had talked about using a knife even to kill earlier in the evening. Although this was pub banter, we can infer that the use of a knife against the deceased was on his mind. But we accept that the appellant did not bring a knife to the pub with him that evening. This case is not as serious as other cases with a 25 year start point covered by paragraph 4 of Schedule 21.

We conclude that the minimum term, taking these features into account, should have been in the region of 22 years, before credit for time spent on remand.

The minimum term of 25 years imposed by the judge was manifestly excessive. We set it aside. We take a notional term of 22 years from which we deduct the 231 days served on remand, which results in a minimum term of 21 years and 134 days.

To that extent the appeal against sentence is allowed.

We thank counsel and those supporting them for their assistance in this appeal.