Cut-Throat Defences and Character Evidence
| Author | Jennifer A James |
| DOI | 10.1177/002201839105500107 |
| Date | 01 February 1991 |
| Published date | 01 February 1991 |
| Subject Matter | Article |
CUT-THROAT
DEFENCES
AND
CHARACTER
EVIDENCE1
Jennifer A James*
Criminal trials involving two or more defendants are a common
occurrence and in such a trial a defendant's case may consist of
either a simple denial of the whole of the prosecution case or, an
attempt to cast all or a substantial portion of the blame for the
commission of the crime upon a
co-accused-a
cut-throat defence.
There are two different types of circumstance which may give rise
to a cut-throat defence: first, when both A and B are jointly
engaged on a venture and either A or B or both committed the
crime which is the subject of the trial (a joint venture) or secondly,
when A and B acting independently cause an incident which is the
subject of the trial and one or both of them could be criminally
liable (a joint incident). An example of a joint venture is Rimmer
and Beecb? in which R,
Band
H all went into a shed, only
Rand
Bemerged alive and each blamed the other for the murder of H.
Ajoint incident occurred in Douglass, 3in which two unconnected
drivers, 0 and P, both contributed to an accident in which X was
killed; both were charged with causing death by reckless driving
and each blamed the other for the accident.
Acut-throat defence may raise the issue of the character of one
or both of the accused in that adefendant may seek to reinforce
his inculpation of the co-accused by reference to the latter's bad
character or by leading evidence of his own good character. The
Court of Appeal has held that the principles applicable to the
admission of character evidence by or against a co-accused are the
same whether the cut-throat defence arises in a joint venture or a
joint incident." Just what those principles are is more problematic.
•Senior Lecturer in Law, University of Reading.
1The advice and encouragement proffered during the preparation of this article
by my colleagues Professor A T H Smith and Sandy Ghandhi are gratefully
acknowledged. I offer the usual disclaimer of their liability.
2[1983) Crim LR 250.
3(1989) 89 Cr App R 264.
4Ibid.
103
J
oumal
of
Criminal
Law
When a trial involves co-accused, whether it is the prosecution
or a co-accused who is seeking to rely on character evidence, there
arise a number of contentious issues.
For
example, if a cut-throat
defence is run and a defendant has adduced evidence as to his
own character but said nothing about the character of his co-
accused, can that co-accused either adduce evidence to rebut the
character evidence or, if the defendant is testifying, cross-examine
the defendant about his character or lead evidence as to his own
character?
Are
there any circumstances in which a defendant can
adduce evidence revealing the bad character of his co-accused; for
example, evidence that reveals that the co-accused has a lengthy
criminal record or a long history of violence or mental instability?
Further, if such evidence is admissible what is its evidential effect?
In this article I hope to illustrate that the law gives discordant
answers to these questions and then suggest improvements to the
current rules.
Good character evidence led by the defendant
In trials involving co-accused, whether the prosecution have
referred to issues of character or not (but particularly where the
prosecution have not done so) a co-accused may wish to refer to
his own character or that of his co-accused. Clearly there may be
risks in allowing such evidence to be admitted over and above
those which attach to a trial when there is but a single defendant.
For example ajury may decide that since one of the accused is of
bad character he is thus more likely to have committed the crime
or even decide to punish him because of the character he possesses
(this is also a problem in cases not involving co-accused). In other
words the court is judging the person and not the evidence.
Admissibility and effect
of
evidence
of
good character led by the
defendant
If
admissible at all, evidence of his good character may be given
in evidence in chief by a defendant or his witnesses to be elicited
from a witness in cross-examination by him." Good character
5Rowton (1865)
UMC
57.
104
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