Jones & Anor, R v

Where one co-defendant gives evidence adverse to another, the trial judge should normally warn the jury to examine that evidence with care because the witness may have an interest to serve. General credibility directions may not suffice. This approach applies even where the defendants advance substantially mirror-image cut-throat defences; R v Burrows does not establish a general exception.

On an appeal based on fresh evidence, the court applies the Pendleton inquiry and may receive admissible, credible and material evidence where there is a reasonable explanation for its absence at trial. Unfair directions and fresh evidence capable of affecting the verdict rendered the convictions unsafe.

Jones and Jenkins, each aged 16 at the time, were convicted at the Crown Court at Swansea of murdering Leonard Proctor after two assaults on him on Christmas Day 2000. Each blamed the other to differing degrees. Jones also maintained that the fatal injuries might have been caused later by a vehicle.

Both appealed against conviction. Jones alleged misdirections concerning independent evidence capable of exculpating him, the absence of a caution about Jenkins’s evidence, and the possible road traffic accident. Jenkins relied on fresh evidence from a custodial officer that Jones had admitted sole responsibility and exonerated him. The central issues were whether the convictions were unsafe and whether the fresh evidence should be received.

1. Both appeals against conviction were allowed and retrials were ordered. The first two defects in the summing-up made Jones’s trial unfair and his conviction unsafe. The same absence of an appropriate warning also prejudiced Jenkins. The further fresh evidence independently justified allowing Jenkins’s appeal.

2. The judge misdirected the jury about Mrs Rees’s evidence. If accepted, her account placed Jones elsewhere when another youth made the potentially self-inculpatory statement. The judge nevertheless left open the adverse possibility that Jones had made it. That failed fairly to present the exculpatory implication of independent evidence on the critical question of who inflicted the fatal violence.

3. Where a co-defendant gives evidence adverse to another, the judge should at least warn the jury to examine it carefully because that defendant may have an interest of his or her own to serve. This follows the approach in R v Knowlden & Knowlden 77 Cr App R 94 and R v Cheema (1994) 98 Cr App R 195. It remains possible to give a neutral warning even in a mirror-image cut-throat case. R v Burrows [1999] 2 Crim LR 48, CA was fact-specific and did not establish a general contrary rule. The court commended directions requiring separate consideration of each defendant’s case, consideration of all the evidence, recognition that a co-defendant may have an interest to serve, and assessment of that evidence as with any other witness.

4. The road-traffic complaint alone would not have rendered Jones’s conviction unsafe. However, the judge’s reliance on Jenkins’s evidence to discount that possibility reinforced the need for the omitted caution. As to Jenkins, applying the Pendleton test and Criminal Appeal Act 1968, section 23, the court received the custodial officer’s evidence. It was capable of belief, admissible, highly material to Jenkins’s guilt, and accompanied by a reasonable explanation for its late emergence. A jury might reasonably have been affected by it.

The appellants were remanded in custody. A fresh indictment and re-arraignment were directed within two months, with the presiding judge of the circuit to select the trial court.

• Court of Appeal (Criminal Division) — In [2003] EWCA Crim 1966, allowed both appeals against conviction, received fresh evidence in Jenkins’s case, and ordered retrials.
• Crown Court at Swansea — On 23 October 2001, convicted both appellants of murder. Each was ordered to be detained during Her Majesty’s Pleasure; Jones’s specified period was nine and a half years and Jenkins’s was nine years.