Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 26

HCA/2015/1112/XC

Lord Justice General

Lord Bracadale

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEAL AGAINST CONVICTION

by

JAMES SINCLAIR

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: CM Mitchell; Paterson Bell (for Gildeas, Glasgow)

Respondent: Farquharson AD; the Crown Agent

24 March 2016

Introduction
[1]        This case involves the contention that where an accused person lodges an incrimination of a named person, whose address is said to be “meantime unknown”, the Crown are thereby under an obligation to investigate that incrimination and to disclose the address of the incriminee, if known to the police, to the defence.

The pre-trial process
[2]        The appellant was indicted along with a co-accused, William McCafferty, to a First Diet on 9 September 2014 at Airdrie Sheriff Court, charged with concern in the supply of £22,500 of cocaine at an address in Cumbernauld on 8 February 2013, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.

[3]        At the First Diet, the appellant lodged a Notice of Incrimination of one “Thomas Tallant”.  The court has not seen a copy of this, but it is not disputed that Mr Tallant’s address was said to be “meantime to the [appellant] unknown”.  The Note of Appeal cryptically states that the incrimination was lodged because the appellant “had been advised” that Mr Tallant had handed over the drugs at the locus specified on the date libelled.  Just who had advised the appellant, and in what circumstances, is left tantalisingly unstated.

[4]        By the end of 2013, the appellant’s law agent had already been in touch with the Crown seeking “disclosure statements” as a matter of urgency.  Disclosure of some statements was provided on 17 February 2014, but the agent sought further statements from two police officers and a copy of the “image” used by the police to identify the appellant, who at the time of the offence had been undergoing chemotherapy.  This image was still being requested several months later.  On 14 August 2014, after service of the indictment, the agent sought further witness statements.  Almost all of these were from police officers or forensic scientists.

[5]        There is no record in the process of the appellant ever having lodged a defence statement.  Such a statement ought to have been lodged 14 days before the First Diet (Criminal Procedure (Scotland) Act 1995, s 70A).  The Crown have no record of receiving such a statement, although it ought to have been intimated to them (ibid).  However, the appellant’s agent maintained that such a statement was lodged at the First Diet.  Had that been the case, a minute recording its late receipt might have been expected, but none exists.  Nevertheless, the agent was able to produce a copy of the statement which he said had been lodged.  This states that “the nature of the appellant’s defence, including any particular defences on which [he] intends to rely” is “The accused denies the offence”.  In relation to any matters of fact with which he takes issue, the appellant’s response is that he “takes issue with any facts which show or tend to show that he committed the offence”.  The statement continues in this vein of what might loosely be described as non-engagement.  In response to that part of the form which specifically asks for the “nature of any information that [he] wishes the prosecutor to disclose”, the reply is a pointless statement of the general law, although this is followed by a request for statements of certain witnesses and poses a question about fingerprinting.  The statement does state, although without elaboration, that there are special defences of alibi and incrimination.

[6]        On 1 October 2014, the appellant’s agent wrote to the Crown advising that he had recently represented one Paul McLaughlin in relation to a related incident in which Mr McCafferty’s fingerprints had been found.  On 17 November, the then trial diet was discharged because of the unavailability of Natalie McCafferty, the co-accused’s wife.  It was only on 19 February 2015, a fortnight or so before the trial started on 5 March, that the agent asked the Crown whether or not any of the police witnesses had spoken to the incriminee, about any telephone contact with Mr McCafferty.

[7]        At no point in all of this did the appellant’s agent ask the Crown if they had an address for Mr Tallant.  On probing from the court, it became clear that the agent had made no attempt whatsoever to find Mr Tallant, who, like both accused, is in his 40s and from Cambuslang.

The trial
[8]        The evidence at trial consisted of the testimony of several police officers, who spoke to what was admittedly a drugs transaction in the vicinity of the locus.  Two police officers, DC Gordon and DI McCann, were in an unmarked police car, which was parked next to a Lexus.  The driver of the Lexus was identified by DI McCann as Mr McCafferty.  Both DC Gordon and DI McCann identified the appellant as a person who was at the front of the Lexus, on his phone at the same time as Mr McCafferty.  He was acting suspiciously.  The police officers had the appellant under observation for several minutes, at a distance of between 1 and 4 metres. 

[9]        The Lexus moved near to a black Chevrolet car, which was the target of the police surveillance.  The driver of this car was one Samuel Adams.  A man made several trips to and from the Lexus and the Chevrolet, eventually going to the Lexus with a bag.  Two different police officers, DCs Steele and Greengrass, both identified the appellant as the man moving to and from the two cars.  It was proved that the Lexus used to belong to the appellant, although he had sold it on 26 January to his co-accused’s wife.  Natalie McCafferty testified that she had bought the Lexus from the appellant.  She said she also knew the incriminee.  She was able to describe him.  When asked if he “looked a bit like” the appellant, she said “I don’t know”.

[10]      The appellant’s agent asked several of the police officers if they had ever spoken to the incriminee, with negative results.  He asked the reporting officer whether she had been made aware of the incrimination, also with a negative response.  What none of the police were asked was whether they knew of the incriminee’s whereabouts.

[11]      The appellant had given a “no comment” interview.  He did not give any evidence.  In due course his daughter gave evidence in support of his alibi that, at the material time, he had been in his bed unwell, having undergone chemotherapy on 6 February 2013.  In the absence of any evidence to support the incrimination, it was withdrawn at the conclusion of the evidence.

Post trial events
[12]      The Note of Appeal states that, a few days after the conclusion of the trial on 25 March, agents received disclosure in the McLaughlin case.  On the list of witnesses was one Helen Talent (the correct spelling), the wife of the incriminee, whose address in Cambuslang was specified.  A statement from Mrs Talent referred to her husband’s connection with Mr McCafferty.  It made it clear that the police (in the form of DC Hogg) knew of her husband’s address (which was the same as hers).  Mr Hogg, who was on the list, but not called, at the appellant’s trial, had obtained a statement from Mr Talent in June 2014.  This statement refers to Mr Talent knowing Mr McCafferty and his wife Natalie, who was his hairdresser, since childhood.

Submissions
Appellant

[13]      The essential contention in the Note of Appeal is that the Crown failed in its duty to disclose what was described as “the foregoing information”.  Just exactly what this information consisted of, beyond the address of Mr Talent and the fact that he knew and sometimes contacted Mr McCafferty, was not immediately obvious.

[14]      It was asserted that, had agents been aware of Mr Talent’s address, attempts would have been made to cite him as a witness.  He would have been used as a “body production” for the officers who gave evidence at the trial because of alleged similarities between him and the appellant.  A photograph, said to be of Mr Talent, found on the internet by the appellant’s daughter, was presented in an effort to demonstrate the similarities.  This showed a person wearing a harlequin coloured bowler hat.  The statements of DC Hogg and Mrs Talent would, it was said, have opened up other lines of enquiry, which would have prompted the recovery of telephone records between Mr McCafferty and Mr Talent.

[15]      The Crown were said to have been under a duty to disclose the details held in relation to Mr Talent.  Breach of the obligation of disclosure had resulted in the defence not being able to lead evidence in support of the incrimination.  When the defence lodged the special defence of incrimination, that should have caused the Crown to review the case and ascertain whether there was any information that they ought to disclose (Kinsella v HM Advocate 2011 SCCR 442 at para [23]) and, in particular, the contact details of Mr Talent and the statement of DC Hogg.  The lack of disclosure rendered the trial unfair and a miscarriage of justice had occurred (Fraser v HM Advocate 2011 SC (UKSC) 113 at paras [37]-[38] and McInnes v HM Advocate 2010 SC (UKSC) 28 at para [24]).

Respondent
[16]      The respondent began by conceding that the “information” known to the Crown should have been disclosed when the incrimination had been intimated at the First Diet.  It did not follow, however, that the appellant’s Article 6 right to a fair trial had been breached.  The question was what the consequences of the breach had been.  Was there a real possibility that the jury would have arrived at a different verdict (Macklin v HM Advocate [2015] UKSC 77, Lord Reed at para 14, following McInnes v HM Advocate 2010 SC (UKSC) 28, Lord Hope at paras 19 and 20)?  In this case, the failure to disclose the information had been of no consequence.  Both Crown and defence cases would have been conducted in the same manner.  The incrimination had been speculative.  There was no evidence to support it.  There was no realistic prospect of a different verdict having been reached. 

[17]      The Crown had not instructed the police to undertake enquiries in relation to Mr Talent.  There had been no request to the Crown for assistance in relation to his whereabouts.  The defence could have requested the co-accused’s telephone records.  There was no indication that the appellant’s agent had precognosced any witnesses about Mr Talent.  There was a duty on the defence to do what they reasonably could to prepare their case (HM Advocate v Thomson 2014 SCCR 598).  There was no obligation on the Crown to investigate the appellant’s defence.  Their primary responsibility was to prosecute the case (McDonald v HM Advocate 2008 SCCR 954; George v HM Advocate [2011] HCJAC 33). 

Decision
[18]      The fundamental flaw in this appeal is the assertion that the appellant, or his agent, wanted to ascertain the incriminee’s address and that, had they found it, they would have cited him and either called him as a witness or used him as part of the cross-examination on identification.  There is no material to support this assertion.  On the contrary, it is clear that the defence decided not to locate the incriminee.  It is equally clear that, had they elected to do so, there would have been little difficulty in finding out his address.  Both he and his wife were in employment.  They had several children.  There is no suggestion that the Talents were seeking to avoid citation.  Rather they lived openly in the local community.  They could easily have been found, probably by the most basic of search mechanisms available in the modern era.  Had there been any difficulty, it could have been resolved by a simple request to the Crown, or the court.  In short, there was no failure to disclose information which had any effect on the conduct of the trial.  There was neither an attempt to find that information nor any difficulty in doing so. 

[19]      It is well established 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.  This is now enshrined in statute (Criminal Justice and Licensing (Scotland) Act 2010, s 121).  The address of a witness does not fit neatly into the statutory definition. 

[20]      The statutory regime, which was introduced by the 2010 Act, supersedes that at common law (s 166).  It is now the primary mechanism which obliges the Crown to disclose.  In that context, it is designed to assist both the Crown in understanding what is likely to strengthen the accused’s case and the accused in securing information which is wanted during any pre-trial investigations.  The accused has an opportunity to state what his defence is by lodging a statement (Criminal Procedure (Scotland Act 1995, s 70A, introduced by s 124 of the 2010 Act).  He is afforded a specific opportunity to set out:

“(e)      by reference to the accused’s defence, the nature of any information that the accused requires the prosecution to disclose”.

If the address of an incriminee is “information” in terms of the definition, had the appellant wanted to know what it was, it was open to him to include that in a defence statement.  There was no attempt to do this.  Had it been done, the appellant could have asked the court for an order to disclose the information, if it was not revealed (2010 Act, s 128), but that stage was never reached.  The defence statement, if it was ever lodged at all, was nothing more than a formal document which made no substantial attempt to state any defence other than to refer to the existence of the special defences. In these circumstances, it cannot be said that there was any unfairness in the trial proceedings.

[21]      The lodging of the special defence of incrimination may have prompted the Crown to review the case and to disclose any material relevant to it.  However, a special defence remains a notice to the Crown that a particular defence is to be run.  There is no obligation on the Crown to investigate it.  Whether to do so is a matter entirely for the Crown (cf a statement made at a judicial examination; 1995 Act, s 36(10)).  In any event, it is impossible to assert that such information, as the Crown may have had in relation to the statements of Mr and Mrs Talent, strengthened the defence of incrimination or in any way weakened the Crown case.  There was, and remains, no evidence to support the incrimination.  The evidence, such as it is, is restricted to the fact that Mr Talent knew, and sometimes contacted, Mr McCafferty.

[22]      Since ascertaining the Talents’ address, there has been no attempt to explore the incrimination further by taking statements from them to see what involvement they might have had in the events libelled.  The relevant telephone records have either not been recovered or have not revealed anything significant.  So far as can be seen, there is no material which puts Mr Talent at the scene or indicates his involvement in any way with the drugs supply.

[23]      The production of a photograph said to be of Mr Talent does not advance matters.  There is no material in the form, for example, of a statement from the appellant’s daughter, that the photograph does depict Mr Talent or, for that matter, that it could not have been produced at the trial.  There is no material to suggest that the production of the photograph or Mr Talent himself would have had any effect on what appear to have been clear identifications of the appellant from police officers who had him in sight a few metres away for some minutes.

[24]      In all these circumstances, even if there had been a breach of any statutory obligation of disclosure or of the more general Article 6 right to a fair trial which the legislation is designed to secure, there is nothing to demonstrate that the use of any material now known could have had any effect on the jury; ie that there was a real possibility that a different verdict would have been reached.  Such information as there is would suggest the opposite.

[25]      The appeal is accordingly refused.