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Published online by Cambridge University Press: 02 January 2018
The joinder by the prosecution of two or more co-accused in the same indictment is of common occurrence in criminal trials. Where offences they have committed are linked one to another or are a product of joint concert, it makes both economic and practical sense to try the defendants jointly. In those cases where joint trial would cause serious injustice to one or more of the parties, the judge may order separate trials. However, severance of indictments in such cases is governed by rules which, perhaps uncharacteristically, would seem to favour the prosecution rather than the defence and defence applications for separate trials are seldom successful. The initiative, therefore, lies principally with the prosecution when it comes to deciding whether or not defendants will be tried jointly. In addition, it should be added that it is the prosecution which decides in which order co-defendants' names appear in the indictment. Although at first sight this may appear a purely routine matter, this decision, too, can have important repercussions on the course of the trial for, although the trial judge retains a residual discretion to order matters in his court as he thinks proper, Halsbury informs us that:- ‘If there are more defendants than one, they address the jury, cross-examine witnesses and give evidence in the order in which their names appear on the indictment’.
1. Andrews, ‘Joint Trials’ (1967) 30 MLR 657. See also Samuels, ‘Separate Trials’ [1966] Crim LR 303.
2. 11 Halsbury's Laws (4th edn) 168.
3. Mitchell (ed.), Pleading, Evidence and Practice in Criminal Cases (40th edn, 1979) para. 526. See also Hampton, Criminal Procedure, (2nd edn, 1977) p. 199.
4. 1 Car & Kir 434, l Cox CC 62, 3 LT (NS) 142.
5. (1895) Times, 29th October.
6. 16th edn, by Clark and Garfitt, p. 276.
7. 1 Car & P 321.
8. 2 Cox CC 220 (Wiltshire Spring Assizes).
9. 5 Jurist NS 276 (Kent Spring Assizes).
10. 3 Jurist NS 722 (Sussex Summer Assizes).
11. 1 F & F 213 at 237. See also the civil case of Fletcher v Crosbie, Gilham, Cooper, Ralph (1842) 2 Moo & R 417 at 418 per Rolfe B.
12. 3 Cox CC 56 (Wiltshire Summer Assizes).
13. 3 Jurist NS 272 (Surrey Spring Assizes).
14. 3 Cox CC 56 (emphasis added).
15. 2 Jurist NS 718 (Kent Summer Assizes). The reporter comments that it is “remarkable” that such an important practical point should still be unsettled and quotes the fourteenth edition of Archbold's Criminal Practice and Pleadings as stating that priority is governed by counsel's seniority unless the judge prefers the order in the indictment, as Cresswell J did at a trial at York Spring Assizes in 1857.
16. Unreported (Exchequer Nisi Prius).
17. (1856) 2 Jurist NS 718.
18. 5 Cox CC 436 (Stafford Summer Assizes).
19. See generally, Greaves, The Criminal Law Consolidation and Amendment Acts (1861, London) esp. pp. 816.
20. See, e.g., Deakin, Holmes, Le Mesurier and Thorpe, (1979) (unreported).
21. (1895) Times, 29th October. See also, Viscount Alverstone, Reminiscences of Bar and Bench, 1914, pp. 182–4; Sir Chartres Biron, Without Prejudice, 1936, pp. 224–5.
22. Supra, note 6.
23. 3 B1 Comm 28n.
24. E.g. (1814) 2 M & S 251, (1884) 19 Law Journal 596.
25. (1756) 1 Burr 57.
26. Pulling, The Order of the Coif (1884) p. 206, note 2.
27. Soltau v De Held (1851) Jurist 1151. It would appear that in the Bail Court the practice on the last day of term was to commence by calling on the Bar in the back rows twice round: Anon (1843) 7 Jurist 399 (Coleridge J); Anon (1843) 7 Jurist 725 (Wight-man J).
28. Sharp v Sherwood (1857) 3 Jurist NS 92.
29. E.g. R v Bishop of Exeter (1840) 7 M & W 188.
30. Brownlow v Cox and Michil 3 Bulst 32.
31. Collected Works 1872, ed. Spedding, vol. VI, p. 192.
32. 1960, London, ed. Lincoln and McEwen, pp. 4–5.
33. Twiss, The Public and Private Life of Lord Chacellor Eldon (1844), vol. I, p. 141.
34. Op. cit., p. 143.
35. If, as Lord Campbell suggests, the real reason for offering a patent to Eldon at all was the Administration's desire to advance Erskine, who was Eldon's junior at the Bar, Eldon may have had a strong motive for digging his heels in over the issue of precedence: Lives of the Lord Chancellors 1857, 4th edn, vol. IX, p. 165.
36. E.g., Lordly v Kiely (1875) 9 NSR 506; Re Boulton (1845) 1 UCR 317; In the Matter of Her Majesty's Counsel (1892) 8 Man LR 155.
37. 3 Halsbury's Laws (4th edn) 612. See also Daniell's Chancery Practice (1914, 8th edn.), by Williams and Guthrie-Smith, p. 1352.
38. Ashton v Shorrock (1880) 29 WR 117 (Sir George Jessel MR). This procedure was confirmed in the recent Practice Direction on motions brought in the Chancery Division: [1980] 2 All ER 750.
39. Judicature Act 1873, 9.26. That the abolition of legal terms for this purpose undermined the old rules concerning counsel's pre-audience is borne out by a ruling of Cockburn LCJ in Anon (1871) 1 Char Pr Cas 39 ‘the right of juniors on the last day of Term to move before the Queen's Counsel must be taken to have gone with the abolition of Terms’.
40. Op. cit., p. 206.
41. Emphasis added. Section 2 has since been amended by s. 3, Criminal Evidence Act 1898 and s. 1(2), Criminal Procedure (Right of Reply) Act 1964.
42. E.g., in trials for non-repair of the highway under s.1, Evidence Act 1877.
43. This emerges from argument before Rolfe B. in the civil case of Fletcher v Crosbie (1842) 2 Moo & R 417. ‘Undoubtedly the last word, as it is called, can have great effect with a jury, but the importance of it can be exaggerated, for it is to be remembered that the judge follows’ Singleton, Conduct at the Bar, 1933, p. 33.
44. E.g. Phipson on Evidence (1942, 8th edn) pp. 43–4, Cockle, Cases and Statutes on the Law of Evidence (1946, 7th edn) by Sturge, p. 485.
45. Forty Years at the Criminal Bar. Experiences and Impressions (1916)p. 285. See also Morrison (1911) 6 Cr App Rep 159 at 165 per Lord Alverstone CJ. Cf., Olsen (1898) 62 JP 777.
46. (1968) 52 Cr App Rep 224 at 225. Although the majority of members of the Criminal Law Revision Committee in the 11th Report, para. 107 gave their approval to this rule of practice, its necessity has, quite rightly, been questioned by Griew, ‘The Order of Defence Evidence’ [1969] Crim LR 347.
47. Trial of Gardiner (1903), 1934, Notable British Trials, ed. Henderson, p. 222 per Lawrance J. See also remarks of Lord Dunboyne in Trial of G. J. Haigh (1949), 1953, Notable British Trials, p. 43.
48. See The Trial of Mrs Duncan (1945) ed. Bechhofer Roberts (Old Bailey Trial Series).
49. There is a voluminous pseudo-scientific literature on this subject. The curious may care to consult Schrenck-Notzing, Phenomena of Materialisation, (1923, London) or Geley, Clairvoyance and Materialisation (1927, London).
50. Consider Your Verdict (1967, London), p. 111. The logic of this course of action is difficult to grasp.
51. When first made, the Recorder had in fact rejected defence counsel's offer with the words, ‘It is bad enough for a jury to have to try a case from Portsmouth without their time being occupied by witnessing exhibitions which may or may not assist them’; Trial of Mrs Duncan, p. 142.
52. Trial of Mrs Duncan, p. 305. Another defence witness had earlier volunteered to swallow one of the exhibits, a length of butter muslin; but this demonstration was not permitted by the Recorder: ibid., p. 215.
53. See supra, note 46.
54. Trial of Mrs Duncan, p. 122. See also at p. 142 where Mr Loseby again sought, unsuccessfully, to proffer Mrs Duncan as a witness out of order.
55. R v Duncan, Brown, Homer and Jones (1944) 30 Cr App Rep 70 at 77. See also [1944] 2 All ER 220.
56. Supra, notes 2 and 3.
57. R v Barber (1844) 1 Car & Kir at 438–9 per Gurney B, Williams and Made JJ concurring. See also R v Balfour (1895) Times, 29th October, per Bruce J.
58. The Trial of Jones and Hulten, 1945, ed. Bechhofer Roberts (Old Bailey Trial Series). See also Casswell, A Lance for Liberty, 1961, London, pp. 197–222.
59. The Times, 5 March 1945.
60. Casswell, op. cit., p. 210.
61. See Trial of Jones and Hulten, p. 68.
62. Casswell also pointed out that Hulten had been arrested before Jones: ibid., loc. cit.
63. Ibid., p. 71.
64. Ibid., p. 70.
65. Ibid.; p. 71.
66. Grondkowski and Malinowski [1946] KB 369; Hoggins, Bricknell and Philp [1967] 1 WLR 1223.
67. Moghal (1977) 65 Cr App Rep at 62 per Scarman LJ.
68. See Youth [1945] WN 27 and the scathing observations of Sullivan, The Last Serjeant, 1952, p. 289
69. See Moghal, cit. supra.
70. Grondkowski and Malinowski, cit. supra at p. 372.
71. Supra, note 2.
72. Supra, note 55.
73. We saw this in both the trials of Duncan and Jones and Hulten, supra.
74. George Maxwell (Developments) Ltd [1980] 2 All ER 99 at 101. ‘(Counsel) should try to be as dispassionate as the judge’ Sir Neville Faulks, No Mitigating Circumstances (1977) p. 193. See, e.g., Humphreys, Both Sides of the Circle (1978) p. 170.
75. Earl of Kilmuir, Political Adventure (1962) p. 31.
76. Lord MacMillan, Law and Other Things, (1937) p. 185. Defence counsel, too, fulfils a similar mission: see the classical statement of his obligations in Crampton J's judgment in O'Connell (1844) 7 Ir LR 261 at 311–3, and the speeches of the Law Lords in Saif Ali v Sydney Mitchell & Co (a firm) [1978] 3 All ER 1033.
77. See George Maxwell (Developments) Ltd., supra, loc. cit.
78. Supra, note 63.
79. See, e.g., Hamson and Plucknett, The English Trial and Comparative Law (1952, Cambridge) pp. 29, 30.
80. Save in the case of alibi: s. 11, Criminal Justice Act 1967. See generally, Ashworth, Prosecution and Procedure in Criminal Justice [1979] Crim LR 480.