Her Majesty’s Advocate v. Alan McConnell McDonald [2016] HCJAC 121

Bill of Advocation:- On 27 August 2013, at Livingston High Court, the respondent stood trial on an indictment which included a charge of rape. Following the conclusion of the trial judge’s charge the jury were secluded by being enclosed “in a room by themselves” in accordance with section 99(1) of the Criminal Procedure (Scotland) Act 1995. After the jury had been deliberating for 10 minutes one of the jurors left the jury to make a telephone call having missed a call from her child’s school. The juror entered a corridor and walked past the ‘jury minder’. The macer then arrived and on realising what had happened advised the clerk of court who instructed the juror to stop her phone conversation. Thereafter the juror was put in a separate room and the jury were asked to cease their deliberations. The court was reconvened outwith the presence of the jury when it was agreed that there had been a breach of section 99(2(b) of the 1995 Act which states that:- “No juror shall come out of the jury room …”. It was submitted on behalf of the respondent that a miscarriage of justice may have occurred as the effect of the juror’s absence from the deliberations could not be known and section 99(5) should apply and an acquittal should follow. Section 99(5) states that:- “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.” It was submitted on behalf of the Crown that whilst there had been a “serious” breach of section 99 the appropriate course was either to desert pro loco et tempore or to discharge the juror and proceed with the remaining 14. The trial judge considered that the terms of section 99(5) did apply and acquitted the respondent. The Crown appealed against that decision by Bill of Advocation. It was contended on behalf of the Crown that the appropriate remedy was not acquittal but desertion pro loco et tempore. Here the court passed the Bill, recalled the acquittal and deserted the diet pro loco et tempore. The court referred to the dictum of the Lord Justice General Rodger in Thomson v HMA 1997 JC 55 at page 60 which makes clear 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”. The court considered that the test had not been met in the present case as the juror had simply responded to an urgent call from her child’s school and the trial judge was in error in deciding that an acquittal should follow. The court observed that the statutory obligation to enclose the jury is on the clerk of court and it is necessary for the clerk of court to ensure that others are aware of the importance of section 99 and the possible consequences of breaching it.