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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Gordon v. Her Majesty's Advocate [2005] ScotHC HCJAC_84 (06 July 2005) URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_84.html Cite as: [2005] HCJAC 84, [2005] ScotHC HCJAC_84 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Nimmo Smith Lord Drummond Young
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[2005HCJAC84] Appeal No: XC481/05 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in BILL OF ADVOCATION by JAMES GORDON Complainer; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Complainer: Miss C. Mitchell; Gilfedder McInnes, Edinburgh
Respondent:
Dr. A. Brown, A.D.; Crown Agent6 July 2005
[1] On 25 May 2005 the sheriff directed that the indictment against the complainer should be deserted pro loco et tempore. The complainer originally maintained in this Bill that the proceedings should have been deserted simpliciter. However, Ms Mitchell submitted for the complainer that the sheriff should have acquitted the complainer under section 99 (5) of the Criminal Procedure (Scotland) Act 1995. [2] For the purposes of the discussion it was assumed that the complainer's averments should be taken pro veritate. Prior to lunchtime on 24 May 2005 the jury had retired to consider their verdict. In the course of the afternoon parties were advised that there might be a verdict as the bell in the jury room had been rung. When the parties assembled in the courtroom the procurator fiscal depute informed the defence that a matter had arisen. He then asked the court officer to inform them of what she had told him. The Bill states in paragraph 4:"Thereupon, the said court officer advised that the bell in the jury room had rung and that she attended, at which time she stated that the jury indicated to her that they required directions in law as to certain deletions. They also, she stated, enquired of her if certain parts of the indictment could be found to be not proven or if they should indicate that they thought that the complainer was not guilty of certain parts of the indictment. She followed on to say that she then gave them advice as to what they could do, however, she was inspecific as to what advice she had given them. She then went on to say that she then came into court to advise parties of this development".
Thereafter the Bill states that while this discussion was taking place the bell rang again. When the court officer returned to the jury room the jury indicated to her that they had reached their verdict. These events were then brought to the attention of the sheriff, who decided that the jury should be brought into court so that he could enquire of them what had taken place in the jury room. Paragraph 8 states the result of this enquiry:
"The foreman indicated that they had required certain directions in law with regard to deletions, and that the court officer had then entered into discussion with them and provided them with some "hypothetical scenarios" of which he had no recall. He indicated that she also offered to get them a clean copy of the indictment. They then reached a verdict, he stated by taking an overall approach. He was not asked to clarify matters any further. The jury were then asked to return to the jury room".
In due course on the following day the sheriff refused a motion for the defence that he should acquit the complainer, and, for reasons which we do not require to detail, decided that he should direct that the indictment be deserted pro loco et tempore.
[3] Ms Mitchell accepted that there was no suggestion that the court officer had acted improperly in going into the jury room, or that she had sought to interfere with the deliberations of the jury. However, when she was asked for directions, she should have spoken to the clerk of court so that, if the sheriff considered it to be necessary, the court could be reconvened and the jury could request the sheriff to give further directions. It was not possible to know what exactly had been said, or whether the "scenarios" were correct. The court officer had contravened subsection (2)(a) of section 99 by "communicating with" the jury, and in circumstances which were not covered by subsection (3). Ms Mitchell contrasted directions to the jury as to the manner in which they might return their verdict, even if this was a recapitulation of the sheriff's directions, with instructions of a purely administrative nature. Since there had been a contravention it followed that the complainer fell to be acquitted under subsection (5). [4] In considering this submission we require to take account of what was said by the court in Thomson v H.M. Advocate 1997 S.C.C.R.121. In that case it was held that, while there had been a very serious irregularity in respect an enclosed jury been sent home overnight by the clerk on the instructions of the judge, there had been no breach of section 99 (5). At page 129 the Lord Justice General (Rodger) said:"It is not difficult to discern the purpose behind section 99: while considering their verdict, the jury should be insulated from improper influence or pressure. But subsection (5) is more precisely targeted. Since it provides that a relevant contravention is to a result in the accused's acquittal, the purpose must be to discourage improper influence or pressure being brought to bear on the jury with the aim of securing a conviction".
Having referred to the history of such a provision, the Lord Justice General went on to say on the same page:
"The fact that subsection (5) is aimed at preventing pressure being put on the jury to convict the accused also explains why the prosecutor is specially mentioned in the subsection ... On the other hand, I do not accept the trial judge's argument that the words 'or any other person' fall to be construed ejusdem generis with 'the prosecutor' and so to be narrowly confined to persons such as the police or procurator fiscal. It appears to me that the class of other persons must be wide enough to cover, say, some government official or the members of some particular pressure group who wished for some reason to ensure that the accused was convicted".
"What, that I think, can be said is that the 1587 Act had in view communications of a sort, emanating from a source, which might be thought capable of having some improper influence on the jury's verdict. That is, in my opinion, the approach which ought to be kept in mind in applying the provisions of what is now section 99 (5). On that approach, it seems to me that one can say, quite clearly, that even if it is correct, as the appellant argued, that there was a communication by the trial judge through his clerk to the jury, it was not a 'contravention' of a kind, and did not come from a source, which would bring into operation the stringent provisions of subsection (5) and lead to an acquittal of the accused".
