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Q: English Criminal Law ( Answered 5 out of 5 stars,   15 Comments )
Subject: English Criminal Law
Category: Relationships and Society > Law
Asked by: probonopublico-ga
List Price: $25.00
Posted: 29 Dec 2003 11:37 PST
Expires: 28 Jan 2004 11:37 PST
Question ID: 291168
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.
Subject: Re: English Criminal Law
Answered By: hlabadie-ga on 30 Dec 2003 21:41 PST
Rated:5 out of 5 stars
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

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

"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

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.""


"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

"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."


"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

R v Hayter [2003] EWCA Crim 1048

"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.""




Request for Answer Clarification by probonopublico-ga on 30 Dec 2003 21:48 PST
Wow, hlbadie!

This looks absolutely brilliant ...

Too much to digest before brekkie though ...

Will read more thoroughly later ...

Very many thanks!


Clarification of Answer by hlabadie-ga on 30 Dec 2003 21:56 PST
I hope it holds up after matutinal mastications.

probonopublico-ga rated this answer:5 out of 5 stars and gave an additional tip of: $10.00
Hi, hlabadie

You hope it 'holds up' ... 

How modest can you be: it's a masterpiece.

Very many thanks ... It's put the whole thing into perspective and
there were a lot of extra goodies thrown in.



Subject: Re: English Criminal Law
From: loudnotes-ga on 29 Dec 2003 14:47 PST
Not being an English jurist myself, I would wonder why the prisoners
would elect to be tried separately if their stories complemented one
another. . .

At least, that's since you phrased the question as to the judge
allowing the separate trials - the real question is would be whether
the criminals had a choice in the matter.
Subject: Re: English Criminal Law
From: kemlo-ga on 29 Dec 2003 15:56 PST
You Say" 
the jury finds Prisoner #1 guilty of  certain offences that presuppose
the guilt of Prisoner #2."
This means they are told about prisoner 2 . But that should not happen
unless P.2 is a witness against P.1
For the jury to be told of P.2's crimes would break the rules on
disclosure of past criminal records
Subject: Re: English Criminal Law
From: probonopublico-ga on 29 Dec 2003 21:24 PST
Many thanks for the Comments.

Hi, Loudnotes, Counsel for Prisoner #2 requested a separate trial and
Counsel for Prisoner #1 agreed. (I think it was a put up job - it

Hi, Kemlo, neither Prisoner had a previous criminal record and the
same evidence was (reputedly) presented in both trials.

Prisoner #1 produced no witnesses; Prisoner #2 produced several. If
both Juries had heard the full story .... Who knows?

Both Prisoners pleaded 'Not Guilty' but neither was present at the other's trial.

As I said, I think it was a put up job.

Somebody, please say that it wasn't!

Subject: Re: English Criminal Law
From: loudnotes-ga on 29 Dec 2003 22:31 PST
I don't see why they didn't get fair trials, especially since they
chose the method.  There was nothing preventing either prisoner from
using the other as a witness in their case, was there?

Frankly, without knowing any details of the case it appears that they
were both guilty.

A better paradox would be if both parties were guilty in reality but
the jury had aquitted one.
Subject: Re: English Criminal Law
From: probonopublico-ga on 30 Dec 2003 00:35 PST
Hi, Loudnotes

Many thanks for your further Comment. This is exactly the sort of
counter-argument I am seeking.

In fact, both Prisoners were being advised by his/her own Counsel, so
they acted accordingly.

Also, Prisoner #2 had been stitched up by Men in Black Suits (military
uniforms actually) ...

Please note that I am not trying to create a paradox but to explore
two REAL Trials that had been held in secret ...


Subject: Re: English Criminal Law
From: hlabadie-ga on 30 Dec 2003 04:51 PST
It is usually the case that it is to the advantage of one or the other
defendant in a joined trial to attempt to sever the prosecutions,
because it is usual that one of the co-defendants is less culpable
than the other, or can make a defense of less culpability. In a joined
trial, then, one of the defendants will often find it advantageous to
see the prosecution's case against the co-defendant strengthened as a
means of his or her own interest. The competing interests of the
co-defendants cause a conflict, which is in turn useful to the
prosecution. Also, evidence that may be prejudicial but inadmissable
against one defendant "A" could be admissable against the co-defendant
"B" in a joined trial, thereby harming the case of defendant "A".

It seems that the Criminal Evidence Act 1898 and subsequent case law
would be useful guides.

Subject: Re: English Criminal Law
From: probonopublico-ga on 30 Dec 2003 05:15 PST
Hi, Hlbadie

Great points!

Much appreciated.

In this case, Prisoner #2 (who was stitched up) applied for separate
trials but she finished up getting 10 years; Prisoner #1 got away with
7 years.

Many thanks

Subject: Re: English Criminal Law
From: probonopublico-ga on 30 Dec 2003 11:05 PST
Hi, Again, Hlbadie

Not much activity, is there?

Why don't you jump in and earn a quick $20 ... less Agent's Commission, of course?


Subject: Re: English Criminal Law
From: probonopublico-ga on 30 Dec 2003 11:05 PST
Oops ... It's a $25 Question.
Subject: Re: English Criminal Law
From: pafalafa-ga on 30 Dec 2003 11:17 PST
Hello again pbp,

I had a comment all set to go yesterday, but the dang computer got
hung up and wouldn't post it.  But I did want to say that your Q is
weirdly comparative to the recent "DC sniper" trials in my
neighborhood.  The shooters -- John Lee Malvo and John Muhhamad --
acted together but were tried separately.  Both were found guilty, but
Malvo received life, while Muhhamad is sentenced to death.  Some folks
are howling that the disparate sentences for essentially the same set
of crimes is patently unfair.

For myself, I don't see any inherent issue in separate trials.  Of
course, if things had been different, the outcome might have been
different as well.  But that's true of many things -- not just
separate or combined trials.  Different lawyers, different judges,
different jury members, all might have resulted in a different outcome
(in your case, or in any other).  Everyone knows the system isn't a
perfect arbiter of truth, but simply the best we know how to achieve.

Anyway, I've rambled enough so that I forgot what your actual question
is/was.  So let me close by you and yours wishing you a happy new

Have a wonderful 2004.

Subject: Re: English Criminal Law
From: probonopublico-ga on 30 Dec 2003 11:41 PST
Hi, Paf

Many thanks for your Comment which is much appreciated.

The analogy is a good one.

Have a Great 2004!

Subject: Re: English Criminal Law
From: hlabadie-ga on 30 Dec 2003 11:44 PST
Thanks for the invitation to answer. I have a few things I want to
look up first. The Law Commission has a page that should be helpful.

Subject: Re: English Criminal Law
From: read2live-ga on 30 Dec 2003 13:29 PST
Pafalafa's point re Muhammed and Malvo is good.  

But what about Carr and Huntley in the Soham trial? If they had
elected for separate trials, could Carr have been found guilty but
then Huntley found innocent?  In point of fact, they had the same
trial, different defenses and defences, and different barristers
defending, were tried on different counts - but it all came down to
the same evidence?

This, admittedly from afar, I was not privy to the day-to-day
courtroom evidence, nor even the day-to-day reports, and I am not (are
any of us?) legally qualified to presume?

but a good opportunity to say, happy new year!  r2l
Subject: Re: English Criminal Law
From: hlabadie-ga on 31 Dec 2003 11:36 PST
Thanks for the tip and the rating. Happy New Year.

Subject: Re: English Criminal Law
From: expertlaw-ga on 01 Jan 2004 10:32 PST
There are a couple of additional relatively recent U.S. cases which
relate to this subject.

In the separate murder trials of Ricky Chavez and the young brothers,
Alex and Derek King, Florida prosecutors separately argued first that
Chavez had killed the boys' father, and later that the boys had
committed the murder. Some coverage from USA Today:

More recently, the Ninth Circuit Court of Appeals upheld the separate
convictions of two men for the same criminal act, even though they
knew it was impossible for both to have commited the act. Prosecutors
argued at their separate trials that each of the men had held a gun to
a restaurant manager's head during a robbery, in order to achieve a
sentence enhancement. Both juries found the defendants guilty, even
though it was not disputed that only one of the robbers had held a gun
to the restaurant manager's head. Some coverage from the San Francisco

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