APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lady Dorrian Lord Bracadale	[2016] HCJAC 121 XC537/13 OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   BILL OF ADVOCATION   by   HER MAJESTY’S ADVOCATE Appellant;   against   ALLAN McCONNELL McDONALD   Respondent:   _____________

Appellant: Scullion AD; the Crown Agent

Respondent: Targowski QC; Basten Sneddon, Dunfermline

 

10 December 2013

[1]        Section 99 of the Criminal Procedure (Scotland) Act 1995 makes provision for the seclusion of the jury to consider their verdict.  It states that, except in so far as instructed by the judge in certain defined circumstances, including the communication of private messages:

“(2)(b) No juror shall come out of the jury room …”. 

It also provides:

“(5)      If the prosecutor or any other person contravenes the provisions of this section, the accused shall be acquitted of the crime with which he is charged.”

 

[2]        On 27 August 2013, at the High Court at Livingston, the respondent was on trial for the rape of a woman in Kirkcaldy in March 2013.  After the conclusion of the charge, the jury were secluded by being enclosed “in a room by themselves” (1995 Act, s 99(1)).  After the jury had been deliberating for about 10 minutes, a juror left the jury room to make a personal phone call.  She had received a missed call from her child’s school and, having told the other jurors what she was doing, she went into a secure corridor, where she returned the call.  A “jury minder”, whose task is essentially to assist the jury in certain practical matters, had been at the door of the jury room, but had not stopped the juror from leaving.  That is understandable, since a jury minder is not a formal court official.  The macer arrived shortly thereafter and, on becoming aware of what had happened, told the clerk of court who instructed the juror to stop her phone conversation, which she did.  The juror was put in a separate room and the jury were asked to cease their deliberations. 

[3]        The court was reconvened outwith the presence of the jury.  It was not disputed that there had been a breach of section 99 of the 1995 Act.  Indeed it was conceded by the advocate depute that there had been a “serious” breach of that section.  The respondent argued that a miscarriage of justice may have occurred.  The effect of the juror’s absence from the deliberations could not be known.  Therefore section 99(5) should apply and an acquittal should follow.  The Crown argued that the appropriate course was either to desert pro loco et tempore or to discharge the juror, allowing the trial to proceed with those remaining.

[4]        The issue for the trial judge was whether sub-section (5) applied.   She held that the words “any other person” in that section could apply to contraventions, not only by the juror herself, but also by the jury minder in not preventing the departure of the juror.  Ultimately, although she had been referred to Thomson v HM Advocate 1997 JC 55 and HM Advocate v Paterson 2012 SCCR 621, she decided that these cases were distinguishable because, in both of them, the relevant juror had separated from the jury either before deliberations had taken place, or after deliberations had ceased, at least temporarily.  The trial judge considered that the terms of section 99(5) did apply and, that being so, she acquitted the respondent.

[5]        The Crown appealed the acquittal by Bill of Advocation.  Under reference to Thomson, Paterson and also Fleming v HM Advocate 2005 SCCR 324 and Carswell v HM Advocate 2009 JC 59, it was argued that the appropriate remedy ought not to have been acquittal, but desertion.  The respondent resisted the Bill and maintained that the trial judge’s application of sub-section 99(5) had been correct.

[6]        It is well established that the interpretation of section 99(5) of the 1995 Act is governed by the dictum of the Lord Justice General (Rodger) in Thomson v HM Advocate 1997 JC 55 (at p 60).  It is as follows:

“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 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 … [citing Hume, Commentaries, vol ii, p 420].   

… 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 …  [T]he 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.”

 

[7]        In HM Advocate v Paterson 2012 SCCR 621, the court (at para [5]) attempted to make the position, following upon the Lord Justice General’s dictum, crystal clear.  It said that:

“In Thomson v HM Advocate the Lord Justice General (Rodger) made it clear (at p 60) that, before section 99(5) bites and results in an acquittal, the court requires to be satisfied that the particular breach had as its purpose some ‘improper influence or pressure being brought to bear on the jury with the aim of securing a conviction’.  His view was reached after a detailed analysis of the history of the provision, which goes back to the 16^th century.  In order therefore to determine whether section 99(5) is applicable, the particular judge or sheriff requires to have an understanding of whether the facts or circumstances shown to have occurred involved an improper approach with the aim of securing a conviction.  Otherwise acquittal is not the appropriate remedy.”

 

[8]        It appears that this statement was not of sufficient clarity to influence the trial judge.  Lest there be any doubt about its meaning, it is that an acquittal is not the appropriate remedy unless an approach has been made to the jury which had as its purpose some “improper influence or pressure being brought to bear on the jury with the aim of securing a conviction”.  There is no question in this case, nor could there have been, of that test having been met.  This was a simple situation in which it was not disputed that a juror had responded, as a matter of some urgency, to a call from her child’s school.  In these circumstances, the court is entirely satisfied that the trial judge was in error in considering that Thomson and Paterson could be distinguished and in determining that an acquittal should follow.  In these circumstances, the court will pass the Bill, recall the acquittal and desert the diet pro loco et tempore.

[9]        Desertion is the only appropriate remedy now, but that is not to say that desertion will be the only appropriate remedy in every situation in which a juror becomes separated from the jury, after seclusion.  There will be situations where, upon inquiry, discharge of the juror coupled with a direction to the remaining jurors to disregard any input from that juror may suffice.  That is the course which may have been appropriate on the facts in this case.  However, what requires to be emphasised once again (see Paterson (supra) at para [6]) is that the primary obligation is on the court to see that suitable arrangements are in place to avoid the potential for breaches of section 99.  The statutory obligation is on the clerk of court to enclose the jury.  Others under his/her supervision must be made fully aware of the practical implications of the section and how to act in the event of a potential breach.