Thomson v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 19 December 1996 |
| Docket Number | No 12 |
| Date | 19 December 1996 |
| Court | High Court of Justiciary |
JC
L J-G Rodger, Lord Coulsfield and Lord Marnoch
Procedure—Solemn procedure—Trial—Jury—Seclusion of jury—Jury retiring to consider verdict—Arrangements for overnight accommodation—Whether competent to send jury home when no accommodation available—Whether seclusion of jury discretionary or peremptory—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 991
Procedure—Solemn procedure—Trial—Jury retiring to consider verdict—Overnight accommodation for jury unavailable—Trial judge directing jury to go home after case had been adjourned in order for overnight accommodation to be found—Whether trial in absence of pannel—Whether miscarriage of justice—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 92(1)2
Section 92(1) of the Criminal Procedure (Scotland) Act 1995 enacts,inter alia, that no part of a trial shall take place outwith the presence of the accused. Section 99 of the Act provides for the seclusion of a jury to consider its verdict and subsection (5) enacts that: “If a prosecutor or any other person contravenes
the provisions of this section, the accused shall be acquitted of the crime with which he is charged.”The pannel came to trial in the High Court on a charge of murder. On the last day of the trial, the jury retired to consider their verdict at 2.35 pm. At 5.30 pm they had not returned and so at 5.40 pm the court was reconvened and the judge asked them whether they were close to reaching their verdict. On being informed that they were not and that it was unlikely that they would reach a verdict within the next hour or two, the judge ordered the jury to cease their deliberations and directed that their continued seclusion be in overnight accommodation under the supervision of the clerk of court and macer. The court then adjourned the diet against the pannel and remaining diets until the next morning. The clerk was unable to find accommodation in the immediate or surrounding areas and at about 7 pm the judge directed the clerk to give the jurors clear instructions not to discuss the case with anyone and to send them home. When the case resumed the pannel moved for an acquittal in terms of sec 99(5). The judge refused the motion and held that the provision of overnight accommodation was a discretionary matter under sec 99(4) and that, in any event, the pannel was only entitled to an acquittal under sec 99(5) if the prosecutor or “any other person” (which should be construed eiusdem generis with the prosecutor) contravened the Act, which did not include the judge. On being convicted, the pannel appealed to the High Court of Justiciary.
Held (1) that there had been no breach of sec 92(1) as although the pannel was not present when the jury had been instructed to go home, the diet had been adjourned and the giving of the instructions was not part of the trial but a mere administrative matter; (2) that in enacting sec 99 the basic position envisaged by Parliament was that the jury would remain in seclusion during the time when they were considering their verdict so that the provision of overnight accommodation was not a discretionary matter under sec 99(4) as that would undermine the principle enshrined in sec 99(1) that the jury should be secluded so that when arrangements were made for overnight accommodation of the jury they had in all cases to be arrangements which provided for continued seclusion; (3) that when the clerk could not find accommodation the position had to be that the jury had to remain secluded until they reached their verdict; (4) that the words “any other person” in sec 99(5) were not to be construed eiusdem generis with the prosecutor as the section was intended to catch anyone seeking improperly to influence the jury towards a conviction; but (5) that there had been no question of improper influence or pressure being brought to bear on the jury in order to secure a conviction and although the procedures adopted for instructing the jury to go home, or communicating that instruction and for allowing the jury to leave the jury room failed to comply with sec 99(1) and (2), the contravention happened innocently and did not fall under sec 99(5); (6) that, in leaving the jury room, the jury were not intending to defy the statute but were obeying what they believed was a lawful instruction from the judge and there had been no reason to presume an irregular or partial purpose by the Crown which had been unaware of the judge's decision; and (7) that the serious irregularity in sending the jurors home when they should have remained secluded and the giving of an invalid instruction outwith the presence of the pannel and when the diet was adjourned, constituted a miscarriage of justice requiring the conviction to be quashed but as the Crown were not responsible a new prosecution would be authorised; and appeal allowed and new prosecutionauthorised.
William Brown Thomson was charged on an indictment at the instance of The Right Honourable the Lord Mackay of Drumadoon, QC, Her Majesty's Advocate the libel of which charged him with murder and offences under the Misuse of Drugs Act 1971. The pannel pled not guilty and the cause came to trial before Lord Sutherland and a jury in the High Court of Justiciary at Glasgow.
On being convicted, the pannel appealed to the High Court of Justiciary by way of note of appeal against conviction.
The circumstances of the cause are sufficiently set forth in the opinion of the Lord Justice-General (Rodger).
Textbooks referred to:
Alison, Criminal Law, ii, 635
Hume, Commentaries, 4th edn, ii, 420
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Rodger), Lord Coulsfield and Lord Marnoch for a hearing on 22 November 1996. Eo die their Lordships made avizandum.
At advising, on 19 December 1996—
LORD JUSTICE-GENERAL (Rodger)—The appellant was convicted in the High Court at Glasgow of murder and of three charges under sec 4(3)(b) of the Misuse of Drugs Act 1971. In respect of the murder charge the trial judge sentenced him to life imprisonment with a recommendation that he should serve a minimum of 15 years in custody. The appeal relates to the matter of conviction alone.
On the last day of the trial the jury retired to consider their verdict at 2.35 p.m. At 5.30 p.m. they had not returned and so at 5.40 p.m. the court was reconvened and the judge asked them whether they were close to reaching their verdict. They indicated that they were not and that they would not be able to do so in the next hour or two. The judge then ordered the jury to cease their deliberations and, as the minute of proceedings explains, “Directed that their continued seclusion be in overnight accommodation under the supervision of the clerk of court and the macer. The court then adjourned the diet against the accused and the remaining diets until tomorrow at 10 am and ordained all concerned then to appear under the pains of law”.
The clerk of court then set about trying to find accommodation for the jury in a hotel. He tried hotels in and around Glasgow, in Edinburgh, Ayrshire and Argyllshire, but all in vain. It turns out that this was due to a big medical congress which was taking place in Glasgow at the time. Faced with this situation the clerk telephoned the judge at 6.55 pm and, again in the words of the minute, “the trial judge directed the clerk of court to give to the jury the clearest possible instructions not to discuss the case with anyone, including members of their family, after their departure from the jury room and until their return there the following morning, and to release the jury members from the jury room and send them home, requesting that they return to the jury room tomorrow at 10 am”. This was duly done.
The following morning in the absence of the jury counsel for the appellant moved the court to acquit the appellant in terms of sec 99(5) of the Criminal Procedure (Scotland) Act 1995 in view of the fact that the jury in the case had not, on the previous evening, been secluded in overnight accommodation as required in terms of sec 99 but had, on the direction of the presiding judge, been allowed to return to their homes. Having heard submissions from the advocate depute and a reply by counsel for the appellant, the trial judge refused the motion that he should acquit the appellant. The jury then returned to court and were directed to retire to resume their deliberations. They eventually returned with their verdict at about 2.35 pm.
Counsel for the appellant advanced the appeal on two bases: first, that the judge had been wrong to refuse the motion to acquit the appellant and secondly that in any event there had been a miscarriage of justice and that the conviction should be quashed. In the second eventuality counsel acknowledged that the issue of whether the court should authorise a new prosecution would arise, but he made no submissions on that aspect. For his part the advocate depute argued that the judge had been right to refuse to acquit the appellant, but, as I understood him, he in effect acknowledged that there had been a miscarriage of justice because part of the trial, the giving of instructions to the jury to leave their room and to go home, had taken place in the absence of the appellant, in breach of sec 92(1). If the court reached that view, then the advocate depute submitted that we should allow the appeal, but authorise a new prosecution in terms of sec 118(1)(c).
While I have no doubt that there was, to put it at the lowest, a considerable irregularity when the clerk of court gave the instructions to the jury to go to their homes, I am not myself persuaded that it can be said that the giving of those instructions constituted part of the trial in terms of sec 92(1) since, at the time when they were given, the diet had been adjourned until the following morning. I am not therefore persuaded that there was a breach of sec 92(1). But the fact that the...
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Her Majesty's Advocate
...had been a contravention, it was argued, the complainer fell to be acquitted under sec 99(5). The observations in Thomson v HM AdvocateSC1997 JC 55 related only to the preservation of the jury and not to communications with them. Held that: (1) the observations of the court in Thomson v HM ......
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...The appellant was entitled to an acquittal (s 99(5)). Counsel accepted that this submission was not supported by Thomson v HM Adv (1997 JC 55) or Gordon v HM Adv (2006 SCCR 1). Submissions for the Crown [22] The advocate depute submitted that it was not proved that the juror visited the loc......
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David Mackay Against Her Majesty's Advocate
...intrinsic to it and can be dealt with outwith the accused’s presence without breaching section 92 of the 1995 Act (Thomson v HM Advocate 1997 JC 55, LJG (Rodger) at 58, Lord Coulsfield at 68). In a situation such as the present, for example, it is inevitable that there will be communication......