APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
LordCameron of Lochbroom
Appeal No: XC118/03
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
ALVIN LEE SINCLAIR
HER MAJESTY'S ADVOCATE
Appellant: Shead; Drummond Miller
Respondent:Anthony, Q.C., A.D.; Crown Agent
1 July 2004 The appellant was found guilty after trial of a charge in the following terms:
"On 6 August 2000 at 3 Ivanhoe Drive, Kirkintilloch, you did assault Graeme Tennent, strike him on the head with a hammer and repeatedly with a pair of scissors and repeatedly punch him on the head, all to his severe injury, permanent disfigurement and permanent impairment".
"The decision of the Crown not to make the statements available to the defence was a violation of its duty at common law and the obligations laid upon the Lord Advocate by section 57 (2) of the Scotland Act 1998 and section 6 of the Human Rights Act 1998. Reference is made to the right to a fair trial guaranteed by Article 6 (1).
Separatim. The conduct of the Crown in failing to disclose the statements or put their content to the witness was oppressive and represented an abuse of process".
"If, however, it emerges at the trial that something has gone wrong and a material statement or other document comes to light at that stage, our procedure is well able to afford the necessary remedy, whether by adjournment, permission to lead additional evidence or, in an extreme case, by desertion of the diet"
Whether such a request is made in the particular case would, no doubt, depend on whether it was considered to be advisable for the conduct of the defence. We note that in the present case there was a fundamental difference between the complainer and the appellant as to what happened between them. This was reflected in the cross-examination of the witness, in addition to the suggestion that she was not even present at the beginning of the incident. It is clear that both the Crown and the defence challenged the witness with having gone beyond what she had said to the police. The defence would have had to consider whether evidence as to the terms of the police statements would have assisted the Crown in respect that they showed that the witness had consistently described the appellant as the aggressor. In the event, as we have noted earlier, the defence did not request the police statements. In these circumstances we consider that there was no breach of duty and no miscarriage of justice arising from the fact that the Crown did not produce them. We should add that the Advocate depute assured the court that there had been no departure from the position which the Crown had stated in McLeod. He confirmed that the Crown had a duty to disclose any information which supported the defence case, including information which supported a known or stateable defence, or which undermined the Crown case. This duty subsisted from the outset and throughout the leading of evidence. The Advocate depute also drew our attention to a proposed practice note of the Crown Office relating to list of witnesses and witness statements which was the subject of current consultation. He pointed out that this practice note was intended to improve the efficiency of the trial process.  At the outset of his submissions Mr Shead indicated that he proposed also to argue that the trial judge ought to have intervened to order the Crown to produce the police statements. However in the event Mr. Shead did not do so.  We will accordingly reject the grounds of appeal in so far as they relate to the conduct of the Crown and the trial judge. The remaining ground of appeal relates to a criticism of those who represented the appellant in the trial. We will continue this appeal so that this final matter may be dealt with.