The two defendants appealed against their convictions for murder. On the prosecution case it was joint enterprise; Jones’ case was that both had indeed attacked the victim, but had caused him only minor injuries and that the fatal injuries had been caused later, perhaps in a road accident; Jenkins’ case was that he had been present but not participating in any way, but in his evidence he acknowledged that the victim’s injuries were serious.
Held: The judge had failed to give the jury an appropriately structured, or indeed any, warning about the danger of relying on the evidence of each defendant as against the other. It was desirable and, in that case, essential, for the jury to receive such a warning even where the cut-throat defences were mirror images.
Auld LJ: ‘Mr Harrington [counsel for the Crown] submitted that the approach in Burrows is to be preferred to that in Cheema in the circumstances of this case, because Cheema was not a direct cut-throat case, whereas Burrows was . .
Mr Harrington also submitted that the judge’s general directions to the jury as to how they should approach the evidence in this case sufficed in the circumstances. He referred to: the judge’s direction . . as to the need for separate treatment of the cases for and against each defendant, to his general direction . . as to the need to consider the credibility of each witness in the case and whether it is self seeking or given to protect or to reflect badly on one defendant rather than another; and to his direction . . as to the need for the jury to take the same care in their consideration of the evidence of each of the defendants as they did in respect of any other witness in the case. Those three directions, submitted Mr Harrington, taken together, were sufficient for the purpose.
Whether the defences are ‘mirror-image’ cut-throat defences, the law, since R v. Prater . . has been that some such warning should normally be considered and given. Burrows was a case in which, as Judge LJ, giving the judgment of the Court said, ‘the difficulty facing the trial judge was somewhat stark’. Any warning he might have given applied equally to each of the two co-defendants, whose cut-throat defences were almost a mirror-image of each other. Each had given evidence casting all possible blame on the other. It may be, as Judge LJ said, that within the confines of that particular case, the trial judge could not warn the jury to approach the evidence of each defendant with care because he had an axe to grind, without indicating to the jury that he had formed an adverse view about the way in which it should be approached by the jury. Though, why that was so, even in the particular circumstances of that case, is not readily apparent to me.
’40. A judge, even in a case of a mirror-image cut-throat defences, in the separate interest of each defendant, should be able to tailor a warning about the evidence of each against the other in a way that would not indicate that he, the judge, had formed an adverse view as to the defence of one or other or both. Even though the cross allegations are inextricably bound up in the defences of each, it is for the judge, in a neutral way, to give the jury such assistance as he can in their evaluation of the credibility of the evidence of each defendant as it is of that of all the witnesses in the case, whether for the prosecution or the defence.
We see no reason to depart from the approach of this Court in R v. Knowlden and Knowlden . . and confirmed in Cheema, that a judge, in exercising his discretion as to what to say to the jury should at least warn them, where one defendant has given evidence adverse to another, to examine the evidence of each with care because each has or may have an interest of his own to serve. Cheema was, as Mr Aubrey has observed, a cut-throat defence.
There was also, as Mr Aubrey commented in argument, a particular need for some such warning in this case, where Jenkins, unlike Jones, had refused to answer questions in interview and was therefore able, if he wished, to tailor his defence to the facts in evidence.
In our view, the failure to give such a warning was a serious omission and unfairly prejudicial to Jones’ defence, and also, though possibly to a lesser extent, to that of Jenkins. Accordingly, we do not consider that the general directions as to evidence of the judge to which Mr Harrington referred us were sufficient for the purpose.
Our attention has been drawn to current guidance of the Judicial Studies Board in the form of a note to its specimen direction No 26, which advises a form of warning to a jury where one defendant has given evidence which may have an adverse effect on a co-defendant. The guidance in the note is that such warning should not be given where co-defendants have given evidence against each other. The authority given for that proposition is Burrows.
It follows from what we have said that we consider that no such general principle can be extracted from the case of Burrows, where it is plain from Judge LJ’s judgment that the Court was heavily influenced by the facts of that case.
Mr Aubrey has ventured an approach, which may be appropriate in many or most cases where a trial judge has to consider what if any warning to give where co-defendants have given evidence against each other. It seems to us to accord broadly with the general observations we have made about the principles derived from Knowlden and Knowlden and Cheema, subject always of course to what justice demands on the particular facts of each case.
Mr Aubrey suggested that a judge, when dealing with the case against and defence of each co-defendant, might consider four points to put to the jury – points that would not offend any sense of justice and certainly would not cast the judge in the light of one who has formed an adverse view against either or both co-defendants. First, the jury should consider the case for and against each defendant separately. Second, the jury should decide the case on all the evidence, including the evidence of each defendant’s co-defendant. Third, when considering the evidence of the co-defendants, the jury should bear in mind that he or she may have an interest to serve or, as it is often put, an axe to grind. Fourth, the jury should assess the evidence of the co-defendants in the same way as that of the evidence of any other witness in the case. That seems to us to be a useful – and suitably focused – approach when judges are faced with this particular problem, and we commend it.’
 EWCA Crim 1966,  1 Cr App R 60
England and Wales
Cited – Regina v Cheema CACD 5-Sep-1993
There is no rule requiring full a corroboration direction to be given for a co-defendant’s evidence to be admitted. The Court of Appeal recommended a review of law on corroboration of a witness’s evidence. Lord Taylor CJ said: ‘The rule of practice . .
Cited – Regina v Burrows CACD 23-Apr-1999
One defendant had been found when searched to have a plastic egg-shaped capsule with crack cocaine inside. He now appealed the direction given to the jury as to the evidence against him given by a co-defendant.
Held: The appeal was dismissed, . .
Cited – Petkar and Farquar, Regina v CACD 16-Oct-2003
The defendants appealed their convictions and sentence for theft. Whilst employed by a bank thay had arranged for transfers to their own account. Each blamed the other. They appealed on the basis that the direction on their silence at interview was . .
Cited – Najib v Regina CACD 12-Feb-2013
The defendant appealed against his conviction for murder saying that the court had given inadequate directions as to his ‘no comment’ interview, the need to treat the evidence of a co-accused with caution, and the need for a bad character direction. . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 April 2022; Ref: scu.244804