[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Johnson, R. v [1989] EWCA Crim 289 (21 April 1989) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1989/2.html Cite as: [1989] EWCA Crim 289

[New search] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice,
		21st April 1989.

JUDGMENT (As approved by Judge)

LORD JUSTICE WATKINS: On 18th February 1988 at Sheffield Crown Court before Mr. Justice Ognall, Christopher Richard Johnson was convicted by a jury of the murder of Derek Roberts. He was sentenced to life imprisonment.

He appeals against conviction with the leave of the single Judge.

The deceased died during the night of 18th/19th May 1987 in a nightclub in Sheffield when the appellant stabbed him in the chest with a knife. The blade of the knife, 3.8 inches long, penetrated the chest to the heart. The wound, there was but one, travelled from the deceased's left to right parallel with the ground. There were no defensive wounds on the deceased.

During the evening both the appellant and the deceased had been drinking at the nightclub. The appellant was carrying a knife. It was a flick or "swish" knife. The deceased was unarmed. A tense atmosphere developed in the club when the appellant started to behave in an unpleasant way. Threats of violence were made by him to a female friend of the deceased and then to the deceased himself. This woman and the deceased became extremely annoyed. A struggle developed between the two men during the course of which the stabbing occurred.

As is inevitable in an incident of this kind, various witnesses saw different parts of the fatal incident and there were some inconsistencies in their evidence. However,in a manner of which no possible complaint can be made, the Judge, in the course of the summing up, carefully summarised the evidence of each witness, the appellant included, for the jury's consideration.

Save for what it is said of that evidence later in relation to provocation, we do not see the need to rehearse it here in any detail. Suffice it to say that when he was seen by the police the appellant maintained that he had been terrified of being "glassed". That had happened to him before. He was in fear of it happening again. He had also in the past been mugged. He therefore carried the knife for his own protection. He further said that when the incident happened in the club he sought to protect himself because he thought he was about to be glassed again, so he took his knife out of his jacket pocket and pushed it at the deceased.

In his evidence he reiterated that he opened his knife because he believed he was going to be "glassed". He did not speak expressly of any loss of self-control.

The case for the prosecution was that the appellant had lost his temper and deliberately struck the deceased. He intended either to kill him or to do him some really serious bodily harm. The defence was that the appellant, that he was about to be attacked by the deceased with a glass, did no more than act in reasonable self-defence.

This defence was obviously rejected by the jury.

Counsel for the appellant did not invite the jury to consider "provocation". The Judge gave no direction to the jury on this issue.

The ground for the present appeal is that the Judge should have directed the jury to consider provocation.

At the conclusion of the evidence and before the summing up, counsel for the appellant, in the absence of the jury, submitted that he either would not or could not, seeing that he was depending on self-defence, address the jury on provocation but that that issue should be left to them by the Judge. The Judge said, in effect, that if there was any evidence of provocation he was well aware that he should leave that issue to the jury and the fact that counsel for the defence did not intend to advance it was irrelevant.

The principle governing such a matter has been set out, and a Judge's duty in that respect emphasised, in a number of reported cases. It is usefully summarised in R. v. Cascoe (1970) 54 Cr. App. R. 401 at 408, where it was said: "Whether the issue (of provocation) is raised at the trial or not, if there is evidence with might lead the jury to find provocation, then it is the duty of the Court to leave that issue to the jury."

In the course of the submissions from both counsel for defence and the Crown, the Judge raised the matter of "self-induced" provocation. He said: "It is rather difficult to see how a man who excites provocative conduct can in turn rely upon it as provocation in the criminal law."

He was referring there to the unpleasant threatening behaviour by the appellant at the start of the incident. No authority on this point was cited to the Judge. The concept of self-induced provocation was not analysed. Counsel for the Crown did not rely on it and, in giving his ruling, the Judge did not refer to it. In his conclusion the Judge agreed with the submission of the Crown that it would be inappropriate, having regard to the evidence, to leave provocation to the jury. Hence the lack of direction to the jury on this issue.

Section 3 of the Homicide Act 1957 provides: "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury ....".

In Director of Public Prosecutions v. Camplin (1978) AC 705, Lord Diplock said that this section "makes it clear that if there was any evidence that the accused himself at the time of the act which caused the death in fact lost his self control in consequence of some provocation, however slight it might appear to the judge, he was bound to leave to the jury the question ..... whether a reasonable man might have reacted to that provocation as the accused did."

It was accepted before us by counsel for the Crown that the evidence before the jury included the following. Before the stabbing incident the appellant had been taunted by a woman who called him a "white nigger". Apparently, although a white man himself, he affected at times a West Indian accent. He reacted to that abuse. It upset him. It made him angry. There were high words between him and others, the deceased included. Seemingly to leave the club or that part of it, the appellant walked away towards the exit. The deceased however followed him and poured beer over him. The deceased then removed his jacket. The appellant did not. The deceased by placing his arm across the appellant's chest or throat seized hold of the appellant and pinned him against a wall. While he was thus pinned against the wall the woman, who had described him as a "white nigger", attacked him by punching his head and pulling his hair. There were shouts from some of the others present that the deceased should drop the glass which he held in his hand. He did so. Until this moment the appellant had not retaliated. But his attitude to being held captive suddenly changed. He somehow bent down and produced the knife and lunged at the deceased with it. He lunged again, so it was said, but failed to make contact. He was restrained by one of his friends. His explanation for his conduct was, as has been stated, a fear of being "glassed".

He did not, as has also been stated, claim that he had lost his self-control.

Nevertheless, if the jury rejected, as they did, his account that he was acting in self-defence they might, in our judgment, very well have inferred from all that evidence that there had indeed been a sudden loss of self-control.

That evidence may not have been powerfully suggestive of provocation. But it was, in our view, rather more than tenuous. It is easily conceivable, we think, that the jury, if directed on the issue, would have come to the conclusion that the appellant was so provoked as to reduce murder to manslaughter. Therefore, subject only to the question of self-induced provocation referred to by the Judge, in our judgment this defence should have been left to the jury.

There was undoubtedly evidence to suggest that, if the appellant had lost his self-control, it was his own behaviour which caused others to react towards him in the way we have described.

We were referred to the decision of the Privy Council in Edwards v. R. (1973) AC 648. In that case the trial Judge had directed the jury thus: "In my view the defence of provocation cannot be of any avail to the accused in this case ..... it ill befits the accused, having gone there with the deliberate purpose of blackmailing this man - you may well think it ill befits him to say out of his own mouth that he was provoked by any attack. In my view the defence of provocation is not one which you need consider in this case."

The full Court in Hong Kong held that this direction was erroneous. The Privy Council agreed with the full Court. On the particular facts of the case Lord Pearson, giving the judgment of the Board, said (page 658): "On principle it seems reasonable to say that (1) a blackmailer cannot rely on the predictable results of his own blackmailing conduct as constituting provocation .... and the predictable results may include a considerable degree of hostile reaction by the person sought to be blackmailed; (2) but if the hostile reaction by the person sought to be blackmailed goes to extreme lengths it might constitute sufficient provocation even for the blackmailer; (3) there would in many cases be a question of degree to be decided by the jury." Those words cannot, we think, be understood to mean, as was suggested to us, that provocation which is "self-induced" ceases to be provocation for the purposes of section 3.

The relevant statutory provision being considered by the Privy Council was in similar terms to section 3. In view of the express wording of section 3, as interpreted in Camplin, which was decided after Edwards, we find it impossible to accept 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 kept outside a jury's consideration. Section 3 clearly provides that the question is whether things done or said or both provoked the defendant to lose his self-control. If there is any evidence that it may have done, the issue must be left to the jury. The jury would then have to consider all the circumstances of the incident, including all the relevant behaviour of the defendant, in deciding (a) whether he was in fact provoked and (b) whether the provocation was enough to make a reasonable man do what the defendant did.

Accordingly, whether or not there were elements in the appellant's conduct which justified the conclusion that he had started the trouble and induced others, including the deceased, to react in the way they did, we are firmly of the view that the defence of provocation should have been left to the jury.

Since it is not possible for us to infer from their verdict that the jury inevitably would have concluded that provocation as well as self-defence had been disproved. The verdict for murder will be set aside. A conviction for manslaughter on the basis of provocation will be substituted.

(The Court heard submissions on sentence)

LORD JUSTICE WATKINS: We now have to deal with the question of sentence.

The appellant was born in May 1966. So obviously he is a very young man. He has a criminal record. He has been before the courts for one offence or another on many occasions. It is right to say however that on none of those occasions has the offence been anything to do with violence. He has been involved in drugs. There is more than a suggestion that drugs were upon the scene at the time of the fatal incident.

Those who carry knives, be it for their own protection or for any other reason, and then use them, can expect to be severely punished if dire consequences follow their use. In this case there was a grievous fatality. Sentences for manslaughter vary infinitely according to circumstances. In our judgment the very fact that a knife — it was a dangerous weapon — was carried by him must mean that the appellant was exposing himself to very considerable risk of punishment if he used it upon another person.

The sentence we impose upon him is one of eight years' imprisonment.