Crown not obliged to investigate special defence of incrimination or disclose incriminee’s details, appeal court rules

The Criminal Appeal Court ruled that where an accused person lodges a special defence of incrimination of a named person, whose address is unknown, there is no obligation on the Crown to investigate that incrimination and disclose the address of the incriminee, if known to the police, to the defence.

The Lord Justice General, Lord Carloway, sitting with Lord Bracadale and Lady Clark of Calton, heard that the appellant James Sinclair was indicted along with a co-accused William McCafferty to a first diet in September 2014 at Airdrie Sheriff Court, charged with concern in the supply of £22,500 of cocaine at an address in Cumbernauld in February 2013, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.

The accused’s solicitors had lodged a notice of incrimination of a Thomas Talent, whose address was “meantime unknown”, but at no point during the pre-trial process did the defence agents ask the Crown if they had an address for Mr Talent, nor did they make any attempt of their own to find him.

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, and who identified the appellant as the man who moved between two cars parked at the scene.

The appellant’s agent asked the police officers if they had ever spoken to the incriminee or whether they had been made aware of the incrimination, with negative results, and none of the officers was asked was whether they knew of the incriminee’s whereabouts.

The accused did not give evidence and in the absence of any evidence to support the incrimination the special defence was withdrawn at the conclusion of the evidence.

On appeal it was argued that the Crown had failed to disclose material information.

It was asserted that, had the agents been aware of the incriminee’s address, attempts would have been made to cite him as a witness and he could have been led as a “body production” because of the alleged similarities between him and the accused.

The Crown were said to have been under a duty to disclose the details held in relation to Mr Talent and breach of the obligation 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 and, in particular, the contact details of Mr Talent and a police statement that he was a longstanding acquaintance of the accused.

The lack of disclosure rendered the trial “unfair” and a “miscarriage of justice” had occurred, it was submitted.

However, the judges observed that the “fundamental flaw” in the appeal was 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,” Lord Carloway said.

“On the contrary,” he continued, “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. 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.”

Delivering the opinion of the court, the Lord Justice General said: “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. 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… In these circumstances, it cannot be said that there was any unfairness in the trial proceedings.”

Lord Carloway added: “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.

“In any event, it was impossible to assert that such information, as the Crown may have had… strengthened the defence of incrimination or in any way weakened the Crown case. There was, and remains, no evidence to support the incrimination.

“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; i.e. that there was a real possibility that a different verdict would have been reached. Such information as there is would suggest the opposite.”