James Sinclair v. Her Majesty’s Advocate [2016] HCJAC 26

Note of appeal against conviction:- On 25 March 2015, at Airdrie Sheriff Court, the appellant was convicted after trial on indictment of being concerned in the supply of cocaine contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant had been indicted along with his co-accused, William McCafferty. At a first diet the appellant lodged a Notice of Incrimination of a “Thomas Tallant” whose address was said to be “meantime to the [appellant] unknown”. Whilst it was submitted that a defence statement had been lodged in advance of the first diet no such defence statement is recorded as having been lodged. At no stage prior to the trial did the defence ask the Crown if they had an address for the incriminee nor did the defence agents do anything to trace him. At the trial no evidence was led in support of the incrimination and at the conclusion of the evidence it was withdrawn. The appellant was subsequently convicted. A few days after the trial those acting for the appellant received disclosure statements in relation to a different case including a statement for the incriminee’s wife which disclosed her and the incriminee’s address. The appellant appealed against his conviction. It was contended on his behalf that the Crown had failed to disclose the incriminee’s address in advance of the appellant’s trial. It was submitted on behalf of the appellant that had those acting for the appellant been aware of the incriminee’s address attempts would have been made to cite him as a witness and it would have enabled the defence to open up other lines of enquiry. It was submitted that the failure by the Crown to disclose the address of the incriminee resulted in the defence not being able to lead any evidence in support of the incrimination that had been lodged and the lodging of it ought to have caused the Crown to review the case and make the necessary disclosure. It was submitted that the failure to disclose the relevant material resulted in the trial being unfair and consequently a miscarriage of justice had occurred. On behalf of the Crown it was submitted that whilst the information known to the Crown about the whereabouts of the incriminee should have been disclosed it did not result in a breach of the appellant’s Article 6 rights. It was submitted that there had been no request made of the Crown for any assistance in relation to tracing the incriminee and there was a duty on the defence to adequately prepare their case. Here the court refused the appeal. The court described a fundamental flaw in the appeal being the assertion that the appellant would have cited the incriminee and called him or used him as a body production in cross-examination. The court observed that it was clear from the preparations undertaken by the defence in advance of the trial that the defence decided not to trace and cite the incriminee. The court noted that no attempts had been made by the defence to trace him and to do so would have been relatively straight forward. Whist it is well recognised that there is an obligation on the Crown to disclose any information in their possession which would materially weaken or undermine the evidence likely to be led by the Crown, materially strengthen the accused’s case, or be likely to form part of the evidence to be led by the Crown by virtue of section 121 of the Criminal Justice and Licensing (Scotland) Act 2010 it is not clear how the address of a witness fits into the statutory definition. It is necessary in a defence statement for an accused to set out, by reference to the accused’s defence, the nature of any information that the accused requires the prosecution to disclose. The court considered that the appellant ought to have made such a request of the Crown had the address been information the defence required. Simply by lodging the incrimination did not mean that the Crown were under any obligation to investigate it. The court also considered that there was no evidence to support the incrimination. The court concluded by stating that even if there had been a breach of the disclosure requirements there was nothing to indicate that the use of the material could have had any effect on the jury and that there was a real possibility that a different verdict would have resulted.