Recent Judicial Decisions
| DOI | 10.1177/0032258X8906200415 |
| Published date | 01 October 1989 |
| Date | 01 October 1989 |
| Author | John Wood |
| Subject Matter | Article |
PROFESSOR SIR
JOHN
WOOD, CRE, L.L.M.,
The University
of
Sheffield. Legal Correspondent
of
thePoliceJournal
Recent J
ud
icial Decisions
YOU STARTED IT
Rv, Johnson[1989] 1 W.L.R.740. Court of Appeal.
The relevantincidentsoccurredin a night club. The appellant and the
victim had bothbeen drinking and the appellant, who had a knife with him,
startedbehaving aggressively. He threatened awoman friend of the victim
and the victim himself. Eye witnesses did not give a completely coherent
picture of what happened but it appears that the appellant was frightened
of being assaulted with a glass, which had happened before and for that
reason carried a knife.
When the incident blew up he thought he was about to be attacked
with a glass.
For
that reason he took out his knife, opened it and thrust it
towards his victim. He gave no evidence of losing his self-control.
The
central defence pointwas that the act was one of self-defence and was, in
the circumstances,reasonable. He was found guilty of murder, indicating
that the jury had rejected that argument for the defence.
Provocation was not raised and no direction was given to the jury on
this defence. It was contended by way of appeal that the trial judge should
have taken itupon himselfto put provocation as an issue to the jury. There
is ample case law, such
asR
v.Cascoe[1970] 2 All E.R.833, which make
itclear
that if there is evidenceavailable upon which
ajury
mightsay there
was provocation, then the judge should direct them to consider it. At this
trial it seems that there had been a discussion betweenjudge and counsel
on both sides whether there was such a thing as 'self-inducedprovocation' .
The judge took the view that ' it is rather difficult to see how a man who
excites provocativeconductcan, in tum, rely upon it as provocation in the
criminal law.' There was no discussion
of
this.
Watkins
LJ.
set out the basic provisions on provocation which are
contained in s.3 of the Homicide Act 1957 and referred to the most recent
leadingcase,R v.Camplin [1978] A.C.705 which confirms the basic duty
to leave the issue of provocation to the jury. One of the key factors is the
loss
of
self-control. The incident leading to the stabbing could have been
interpreted in a way that the words could have been such as to cause a
reasonable man to lose his self-control. The woman had, for example,
called the accused a'white nigger', because of an accent he sometimes
adopted. However, the defence had not put forward loss
of
self-control,
basing its argument on the fear of
being'
glassed'. The jury decided that
this did not amount to self-defence, but did not consider the issue
of
provocation which had not been left with them, hence the guilty verdict.
In a Privy Council case, Edwards v. TheQueen [1973] A.C.648, the
accused had sought to blackmail the person whom he claimed had
provoked him.
The
trial judgehad thought it was completely improper to
October 1989 343
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