Where the defendants ran cut-throat defences a judge had to give a warning as to the credibility of the evidence of co-defendants against each other and no principle could be derived from R v Burrows that a warning should not be given.Appeal by both defendants ('WJ' and 'MJ') against convictions for murder and appeal against the specified period of sentence by WJ with leave of the single judge. The defendants had been drinking with their girlfriends and friends in the same pub as the victim ('V') who had previously indecently assaulted WJ's girlfriend. WJ wanted revenge. V left the pub and the defendants followed and assaulted him. The defendants returned to the pub but left ten minutes later, found V and assaulted him again. They returned to the pub and later left separately. MJ left alone and WJ left with his girlfriend and two friends. The Crown's case was that the defendants had followed V from the pub and together attacked him causing serious injuries that resulted in death. The defendants gave differing accounts amounting to modified cut-throat defences. WJ's case was that they were both party to the assault, each inflicted violence but did not cause fatal injuries. He suggested that the fatal injuries were caused by V falling or stumbling in the road and being hit by a passing car. MJ's case was that he was present but he did not take part in the violence and twice tried to stop WJ. A witness ('R') said that she had been awoken by shouting from the group walking home and gave evidence of what she had heard which exculpated WJ of the murder. When summing up the judge gave directions that R could have been mistaken as to what she saw and heard as she was looking down from a window and it was dark. He gave a general direction on the evidence given by each defendant against the other. WJ appealed against conviction on the grounds that: (i) the judge had misdirected the jury on R's evidence, despite agreement by counsel of the exculpatory effect on WJ of R's evidence the judge did not make that point to the jury; (ii) the judge had failed to warn the jury to treat the evidence of MJ with caution because of the cut-throat defence. MJ appealed against conviction and sought to rely on fresh evidence from a custodial officer that WJ had confessed to the attack and said that MJ had played no part in it.The Crown contended that following R v Burrows (1999) 2 CLR 48, in which co-defendants gave evidence against each other, there was no need for the judge to give specific directions regarding the credibility of the defendants' evidence against each other as they were running 'mirror image' cut-throat defences.HELD: (1) The direction given on R's evidence was a misdirection that was capable of causing significant prejudice to WJ. R was a witness where witnesses were thin on the ground. It was possible that she had misheard or confused what was said, however, the judge should have made the point that the evidence of what she heard exculpated WJ of murder. The judge only left one possibility to the jury which was adverse to WJ if accepted. (2) Whether or not the defences were mirror image cut-throat defences the law had consistently been that some type of warning should be considered and given. There was no reason to depart from the decision in R v Nolden & Nolden 77 Cr App R 94 and confirmed in R v Cheema (1994) 98 Cr App R 195. A judge exercising his discretion as to what to say to the jury should warn them to examine the evidence of each defendant with care as each might have an interest to serve. Failure to give a warning was prejudicial to WJ's defence and, to a lesser extent, MJ's defence. (3) No principle could be derived from R v Burrows (supra) that a warning should not be given where co-defendants gave evidence against each other. That case plainly turned on its own facts. A judge in separating the interest of each defendant should be able to tailor a warning for each against the other without showing he had an adverse opinion. (4) The defence suggested to the court a formula to provide some guidance to trial judges in future which was a useful approach. The judge should warn the jury: (i) to consider the case for and against each defendant separately; (ii) to decide the case on all the evidence including the evidence of each defendant's co-defendant; (iii) that when considering evidence of co-defendants it should bear in mind that each may have an interest to serve; and (iv) to assess the evidence of co-defendants in the same way as any other witnesses in the case. (5) The judge's misdirection to the jury rendered the conviction of WJ unsafe. (6) The court received the fresh evidence in MJ's case. It was capable of belief and there was a reasonable explanation why the witness had not come forward at trial. As a result the conviction against MJ was also unsafe.Appeals allowed, convictions quashed and retrial ordered.

[2003] EWCA Crim 1966