R v Johnson (Christopher)

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) A.C. 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...