Crown not obliged to disclose incriminee details, appeal court rules
There is no obligation on the Crown to investigate a special defence of incrimination or, on receiving notice of such a defence involving an incriminee whose address is unknown to the defence, to disclose any information in that regard known to the Crown, the Criminal Appeal Court has held.
Lord Justice General Carloway, Lord Bracadale and Lady Clark of Calton gave the ruling in refusing an appeal against conviction by James Sinclair, charged with being concerned in supplying cocaine worth £22,500 at an address in Cumbernauld.
The accused's solicitors had lodged a notice of incrimination of a Mr Tallant (correctly, Talent), whose address was "meantime unknown". It appeared that the agents did not make enquiries of their own to trace him, or ask the Crown if they held his address. At trial the police witnesses denied having spoken to Mr Talent; they were not asked if they knew of his whereabouts. The accused did not give evidence and the special defence was withdrawn in the absence of evidence to support it.
On appeal it was argued that the Crown had failed to disclose material information; had the agents been aware of his address, attempts would have been made to cite him and he could have been led as someone resembling the accused. The lodging of the special defence should have caused the Crown to review the case and ascertain whether there was any information that they ought to disclose, in particular Mr Talent's contact details and a police statement that he was a longstanding acquaintance of the accused.
The Lord Justice General, giving the opinion of the court, said the fundamental flaw in the appeal was that there was no material to support the assertion that had the accused's agents been able to cite Mr Talent, he would have been cited and either called as a witness or used in cross examination as to identification. "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.... 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."
Any defence statement lodged had done no more than refer to the existence of the special defence; that might have prompted the Crown to review the case but it was under no obligation to investigate it, and it was impossible to assert that any information the Crown had either strengthened the defence or in any way weakened the Crown case.
There was therefore "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".