A cut-throat defence is where one defendant gives evidence that is damaging to a co-defendant’s case, sometimes going as far as directly accusing the other person of the crime, while typically seeking to exonerate themselves.
Such evidence may be given directly by a defendant (or more than one in some cases) as a positive aspect of their case or elicited by prosecution questioning. Either way, it can make for an uncomfortable moment during the case when one defendant is pitted against another, particularly if issues of bad character arise because of it.
The conventional view is that cut-throat defences rarely end well, although in reality, that is a generalisation too far, and the outcome will always depend on a multitude of factors.
Where a cut-throat defence is anticipated or encountered, thought will be given to the issue of severance – or separate trials. These applications are not always successful in practice, as explained in Varley [1982] 2 All ER 519:
‘The other ground put forward was that the judge wrongly exercised his discretion by refusing to order separate trials. We recognise that there may well be occasions where there has been a successful application to cross-examine a co-defendant on his convictions and the trial judge, in his duty to ensure a fair trial, may properly exercise a discretion to order separate trials. We have in mind the situation whether the effect of such cross-examination is such as to create such undue prejudice that a fair trial is impossible. But that is not this case. The truth of the matter is that this was a case where two experienced criminals metaphorically cut each other’s throats in the course of their respective defences. If separate trials had been ordered, one or other or both might have succeeded in preventing a just result.’
While a separate trial may not seem a likely outcome, some lawyers mistake the case law to such an extent that they rule out the argument completely; we feel that to be an inadequate approach and ensure that scrutiny is applied in all instances (see cases such as R v O’Boyle (1991) 92 Cr App R 202).
Relevant arguments will centre around:
1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against the other accused to be jointly tried with him, and
2. Where the evidence against those other accused contains material highly prejudicial to the applicant though not admissible against him, and
3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material.
At the opposite end of the spectrum, it may be the case that you have to run a cut-throat defence and consideration will have to be given to the consequences, both positive and negative, of doing so.
Criminal litigation is increasingly complex, and you must instruct a legal team able to work through all the issues that might arise and provide a strategy for dealing with them. The emphasis is always on proactive rather than merely reactive trial strategies.
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