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English Criminal Law

English Criminal Law

Two prisoners are charged with criminal offences under English Law and they are, of course, presumed innocent until found guilty. The judge agrees that they can be tried separately. Prisoner #2 is 'sent below' and the jury finds Prisoner #1 guilty of certain offences that presuppose the guilt of Prisoner #2. The jury is then dismissed. A new jury is sworn in and Prisoner #2 is tried and found guilty. So everything is hunky dory ? Or is it? Had both prisoners been tried together, the jury may have formed a different view had they heard the stories of both prisoners. What do you think? This is an academic question because (as far as I know) I am not lined up to be either Prisoner #1 or Prisoner #2.

Note that the law has evolved, both by legislation and by case law and appeal. The first case that comes to mind to illustrate the perils to one defendant from association with his co-defendant in a joined trial is the Wilde-Taylor trial of April, 1895. Wilde and Taylor were indicted together, and although Wilde was the principal target of the indictment, it was the case against Taylor that put Wilde at risk. Not only was it a joint trial, but the indictment contained charges of two different kinds, conspiracy and a violation of the Criminal Law Amendment Act of 1885. At that time, a defendant could be a competent but not a compellable witness when charged under the Act, but under all other charges the defendant could not testify in his own behalf. Thus, a witness might be cross-examined on a charge to which he was not competent to give evidence in his own defense. Wilde's attorney, Sir Edward Clarke, objected, but was overruled. As it turned out, the conspiracy charges were dropped by the prosecution later in the trial, but only after some very damaging testimony had been heard against Taylor. Clarke again objected, saying that if the charges had been dropped at the beginning of the trial, he would have moved for a severance of the cases. As Montgomery Hyde, Wilde's biographer observed, "The evidence against Taylor, though technically not evidence against his fellow prisoner, was in the circumstances bound to influence the jury's minds against Wilde...The bracketing of Wilde's name with that of Taylor was a great misfortune for Wilde..." Thus, a joint trial can often expose a defendant to unfavorable evidence which is not germane, nor even admissable, to his own case, but which can have an unfavorable bearing upon the outcome nonetheless. Hyde, H. Montgomery, Three Trials of Oscar Wilde, The, University Books, New York, 1956. Introduction , pg. 75 Criminal lawyers are obliged to make the best defense for their clients, and in a joint trial this often entails casting blame upon the co-defendant. The defense attorney becomes interested in helping the prosecution make the case against the co-defendant. Naturally, the other defense attorney would prefer to have the cases tried separately. This can lead to instances where a motion to sever is opposed not only by the prosecution but by the co-defendant as well, with the judge usually deciding against the motion. The rules of evidence are such that in some cases a statement by a defendant can be introduced as hearsay against the co-defendant, but in other cases it cannot. This has produced a paradox in the law. In Regina v Myers: Judgments - Regina v. Myers http://www.number7.demon.co.uk/hol/reports/01/50.htm "The appellant, Melanie Myers, and a man, Clifton Quartey, were charged in one count in the same indictment with the murder of a mini-cab driver, Muzhar Hussein, on 12 April 1994. An application by Myers for a separate trial, opposed by the prosecution and, it seems, also by Quartey, was rejected by the trial judge and on 17 February 1995, Myers was convicted of murder and Quartey of manslaughter. Myers' appeal to the Court of Appeal was dismissed but the court gave her leave to appeal to your Lordships' House and certified that the following point of law of general public importance was involved in its decision, namely: "In a joint trial of two defendants A and B, is an out of court confession by A which exculpates B but which is ruled, or is conceded to be, inadmissible as evidence for the Crown nevertheless admissible at the instigation of B in support of B's defence, or does such a confession in all circumstances offend the rule against hearsay?" [...] "It was the possible prejudice which could arise to one or other of the defendants if these statements were, or were not, allowed in, and the dispute as to how far they were admissible, which led to the application for separate trials...[Separate trials were denied. Convictions resulted.] 7 That decision was challenged on appeal. The Court of Appeal [1996] 2 Cr.App.R. 335, 339 referred to what was said in Reg. v. Lake (1976) 64 Cr.App.R. 172, 175 namely: ". . . a joint offence can properly be tried jointly, even though this will involve inadmissible evidence being given before the jury and the possible prejudice which may result from that." [...] "Counsel for Quartey submitted that he was entitled to adduce evidence of the confessions as being relevant to his client's case and therefore admissible. Counsel for Myers opposed the admission of the statements relying on section 76(2)(/b/) and 78 of the Act of 1984. He submitted that, if Myers gave evidence, counsel for Quartey could cross-examine her on the confessions and if she denied having made them, he could call evidence of what was said pursuant to Lord Denman's Act, the Criminal Procedure Act 1865 (28 & 29 Vict. c.18). This would involve the jury being told that the confessions would not be evidence of the commission of the crime by her but would go to her credibility. The trial judge considered that "It would be an impossible task for the jury to draw that distinction." 10 In considering whether the statements should be admitted the judge found that there was a direct conflict between two Court of Appeal decisions Reg. v. Campbell and Williams [1993] Crim. L.R. 448 and Reg. v. Beckford and Daley [1991] Crim. L.R. 833. Following the course that he thought right, he ruled that "a statement against interest by one party is provable against that party by another so long as both remain parties to the particular action."" [...] "The Court of Appeal [1996] 2 Cr.App.R. 335, 340, accepted as trite law that: ". . . a statement made by one defendant in the absence of another cannot be evidence against that other. Juries have to be directed and are expected to put out of their minds any such material however compelling. But the content of any such statement may well be evidence against the maker of the statement if it amounts to an admission of guilt." 11 They continued: "In a case such as the present, we are of the opinion that the confession was relevant to the co-defendant's case as supporting that case to the effect that responsibility did not lie with the co-defendant but solely with the statement maker. The fact that the confession, though voluntary, was made to a police officer in breach of the Police and Criminal Evidence Act 1984 does not affect the matter so far as the co-defendant was concerned. It was admissible just as much as it would have been if made to a casual passer-by."" EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS http://www.lawcom.gov.uk/files/lc245.pdf "1.28 The second development has been the resolution by the Court of Appeal in Myers of the conflict of authority between Beckford and Daley and Campbell and Williams: the court preferred the latter. The particular point at issue, namely whether one co-defendant?s confession may be adduced by another, has therefore been settled; 46 but the problem illustrated by Beckford and Daley persists. Where the hearsay rule and its exceptions operate to exclude cogent evidence which tends to show that the accused is not guilty, there is still the danger of a miscarriage of justice which only the Court of Appeal can remedy, and then only after the defendant might have been deprived of his or her liberty and much public money wasted." In another case (Blastland,[1986] AC 41.), hearsay which might have been exculpatory was excluded because it was an admission by a co-defendant: "4.6 The House of Lords refused to reconsider the question of the admissibility of the confession by MH, but did consider the following point of law: Whether evidence of words spoken by a third party who is not called as a witness is hearsay evidence if it is advanced as evidence of the fact that the words were spoken and so as to indicate the state of knowledge of the person speaking the words if the inference to be drawn from such words is that the person speaking them is or may be guilty of the offence with which the defendant is charged. 4.7 Their Lordships held that MH?s words were irrelevant to the issue of the accused?s guilt. In reaching this conclusion they were swayed by the fact that MH?s confession to the crime was itself inadmissible. Thus, if the fact of his knowledge were admissible, it would, as Lord Bridge said in the leading speech, lead to the very odd result that the inference that [MH] may have himself committed the murder may be supported indirectly by what [MH] said, though if he had directly acknowledged guilt this would have been excluded."" [...] "4.9 Professor D J Birch makes the cogent point that if only two people could have committed an offence, the fact that one of them possessed detailed knowledge about it would normally be highly relevant. However Lord Bridge seems to reason that because [the person who confessed] could have acquired his knowledge as a witness, evidence about it was irrelevant. The short answer to this is that to make such an assumption is to usurp the function of the jury. 4.10 There is a fear that if confessions by third parties were admitted, fabricated confessions would be a regular feature of criminal trials, and acquittals would result from the introduction of unworthy evidence. It would be too easy for guilty people to introduce evidence of a fictitious confession, and the jury would have no chance of distinguishing the real ones from the false ones. 4.11 The counter-argument is that if the evidence shows that there is a possibility that someone else committed the crime alone, and the jury cannot dismiss that possibility, then they cannot be sure of the accused?s guilt, and therefore should not convict. The fact that someone else has confessed to the offence is logically relevant to the issue of whether the defendant committed it: this is so whether the other person is a co-defendant who gives evidence, a co-defendant who exercises the right not to give evidence, a co-defendant who is tried separately, or a person who is never caught or never prosecuted." EVIDENCE OF BAD CHARACTER IN CRIMINAL PROCEEDINGS http://www.lawcom.gov.uk/files/lc273.pdf "1.3 Presently, evidence of misconduct of the defendant on an occasion other than that leading to the charge may be introduced by the prosecution as evidence of ?similar fact? or by the prosecution or the co-defendant in the limited circumstances provided for by statute, principally under section 1 of the Criminal Evidence Act 1898. Evidence of a person?s bad character may, however, also be introduced by a defendant in respect of witnesses who are not co-defendants or in respect of people who are not witnesses. The only limitation to this freedom is the requirement that the evidence be "relevant". We consider each of these instances of the introduction of evidence of bad character." [...] "2.42 The possibility of a discretion to exclude evidence which is prejudicial to a co-defendant was canvassed by Evans LJ in Thompson, Sinclair and Maver. He noted that the only discretionary safeguard for a defendant who risks having prejudicial evidence adduced by the co-defendant is the "cumbersome device of separate trials". He went on "This seems undesirable, and it might be preferable to allow a discretion where the prejudice is substantial and the evidence is of only limited benefit to the co-defendant". He argued that under the current authorities, the protection for the co-accused lay in the strict application of relevance, as illustrated by Bracewell and Neale, and that the Court of Appeal in the former might have been referring to a discretion by saying that "There are obvious objections to putting a co-accused in the position of having to fight two quite different battles at the same time". Evans LJ continued: "We should not like it to be thought that we have concluded that such a discretion can never exist, although the authorities make it difficult to hold that it does"." [...] "2.80 As a result of the decision of the House of Lords in Murdoch v Taylor, it is now established that evidence "against" a co-defendant means evidence "which supports the prosecution?s case in a material respect or which undermines the defence of the co-accused". It is irrelevant whether the evidence is given with a hostile intent. 2.81 The courts have laid down a number of factors to be considered in deciding whether evidence is evidence "against" a co-defendant. In Varley the House of Lords laid down guidelines for determining this issue. The evidence should be judged objectively and particular care should be taken where the co-defendant?s defence may have been undermined: inconvenience or inconsistency is not sufficient, but direct contradiction may bring section 1(f)(iii) into play. It has been held by the House of Lords that If, while ignoring anything trivial or casual, the positive evidence given by the witness would rationally have to be included in any survey or summary of the evidence in the case which, if accepted, would warrant the conviction of the [co-defendant] then the witness would have given evidence against such other person." In a case that has direct bearing on the Question, the jury now are by law entitled to hear of a prior conviction in the same case of a co-defendant: R v Hayter [2003] EWCA Crim 1048 http://www.lawreports.co.uk/crimaprc0.4.htm "A jury was entitled to have regard to a conclusion which it had reached on evidence admissible against one defendant in a joint trial, in order to prove the existence of a fact that was a pre-condition in law to establishing the guilt of a co-defendant. The Court of Appeal (Criminal Division) so held in dismissing the appeal of Paul Ali Hayter against his conviction on 3 July 2001 at the Central Criminal Court (Judge Hyams and a jury) for murder. S 74(1) of the Police and Criminal Evidence Act 1984 provided: "In any proceedings the fact that a person other than the accused has been convicted of an offence by or before any court ... shall be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that that person committed that offence, whether or not any other evidence of his having committed that offence is given."" SEARCH TERMS ://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&safe=off&q=UK+Criminal+Evidence+Act+1898&btnG=Google+Search hlabadie-ga

Wow, hlbadie! This looks absolutely brilliant ... Too much to digest before brekkie though ... Will read more thoroughly later ... Very many thanks! Bryan

I hope it holds up after matutinal mastications. hlabadie-ga