Appeal Against Conviction By James Sinclair Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Bracadale,Lady Clark Of Calton |
| Neutral Citation | [2016] HCJAC 26 |
| Docket Number | HCA/2015 |
| Published date | 24 March 2016 |
| Date | 24 March 2016 |
| Court | High Court of Justiciary |
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...
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