Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lady Clark of Calton Lord McEwan	[2012[ HCJAC105 XC83/12 OPINION OF THE COURT delivered by LORD CARLOWAY in CROWN APPEAL BY BILL OF ADVOCATION by HER MAJESTY'S ADVOCATE Appellant; against GRANT PATERSON Respondent: _____________

Appellant: A F Stewart, Q.C., A.D; Crown Agent

Respondent: D Taylor, Solicitor Advocate; Nelsons, Falkirk

3 July 2012

[1] On 17 January 2012, at about 10.55am in Falkirk Sheriff Court, the jury, having listened to speeches and charge, were asked to retire to consider their verdicts

on charges against the respondent of having an offensive weapon with him (contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 47(1)) and a related breach of the peace said to have taken place on 2 October 2011 in Westfield Street. The Bar Officer appears to have been given the task of escorting the jurors to the jury room. However, he accompanied three of the jurors to the back door of the court building to enable them to have a smoke. He asked the remaining jurors not to commence their deliberations until the three had returned. From the spartan report received from the sheriff, it is not clear whether the jury had been formally enclosed in the jury room in terms of section 99(1) of the Criminal Procedure (Scotland) Act 1995 or whether the separation of the three jurors occurred immediately prior to that event. All that the sheriff states is that the three "had been allowed to leave the jury room".

[2] The sheriff became aware of this situation and asked parties to address him on whether there had been a breach of section 99(2) and, if so, what the consequences would be. The procurator fiscal depute and the defence agent agreed that what had occurred had amounted to a breach. Each submitted that, in terms of section 99(5), an acquittal had to follow. The report is silent on whether either party referred to any authority and the sheriff does not mention having consulted any.

[3] This is a Bill of Advocation which seeks to challenge the acquittal which the sheriff pronounced. Section 99 of the Act applies in circumstances where the jury have been enclosed by the clerk in a room with a view to considering their verdict. Thereafter no other person is entitled to be in the jury room and no juror can come out of the room except for certain defined purposes. Notwithstanding these general prohibitions, the judge or sheriff is entitled to give instructions in relation to the provision of meals and refreshments, the communication of messages and the provision of medical or other assistance. The court can allow the jury to separate after retiral. These exceptions to the general prohibitions are wide enough to permit the court to allow jurors to have suitable breaks from their deliberations, if it is satisfied that proper arrangements are in place for that purpose. However, considerable care has to be taken before allowing any separation of jurors after enclosure.

[4] Section 99(5) provides that, if the prosecutor or "any other person" contravenes the statutory provisions, the accused shall be acquitted. Under reference to Thomson v HM Advocate 1997 JC 55 and Carswell v HM Advocate 2009 JC 59, the Advocate Depute submitted that an acquittal in the circumstances of this case had not been appropriate, given the purpose of subsection 99(5) as explained in Thomson. In response, it was said that, insofar as the circumstances were known, since it was not apparent that nothing untoward might have occurred during the separation of the jurors, the sheriff's application of the subsection had been the correct one.

[5] In Thomson v HM Advocate, the Lord Justice General (Rodger) made it clear (at 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 subsection 99(5) is applicable, the particular judge or sheriff requires to have an understanding of whether the facts and circumstances shown to have occurred involved an improper approach with the aim of securing a conviction. Otherwise, acquittal is not the appropriate remedy. The judge or sheriff will, if he is concerned that such an approach may have occurred, require to consider in circumstances such as the present, whether the jury had been enclosed, whether deliberations had started and whether there had been any external communication with any jurors who had left the jury room. From the sheriff's report it is impossible to reach any view on any of these matters. In the absence of any material which would suggest that something occurred which had

as its purpose some improper influence or pressure of the type referred to, it is not possible to uphold the sheriff's decision to acquit. Although the sheriff's decision proceeded upon a concession from the Crown, no reasoning for the decision is provided in his report and no reference is made to any of the authorities referred in the standard textbooks (e.g. Renton & Brown's Criminal Procedure Legislation, para A4-224.3; Renton & Brown's Criminal Procedure, para18-86) which ought to have been readily available both to the court and parties. This is surprising given the consequences of an acquittal in advance of a jury's verdict.

[6] In relation to cigarette or other breaks, these can of course be authorised by the judge or sheriff under proper supervision and direction. However, the court has an obligation to ensure that it is satisfied that appropriate arrangements are made for these breaks and that there will be no possible breach of section 99. The obvious consequence of all of this is that court officials must be aware of the need to seek the authority of the judge or sheriff before permitting jurors to separate or otherwise to leave the jury room after enclosure. That in turn involves the clerk ensuring that the jury is properly enclosed and that others under his or her supervision are fully aware of the practical implications of the section.

[7] The court will pass the Bill and quash the verdict of acquittal. It will remit to the sheriff with a direction to desert pro loco et tempore.

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