Crown wins appeal against judge’s decision to acquit rape accused after juror left jury room

The Criminal Appeal Court ruled that acquittal was “not the appropriate remedy” and that in the circumstances the trial judge should have deserted the trial instead.

The then Lord Justice Clerk, Lord Carloway, sitting with Lady Dorrian and Lord Bracadale, heard that the respondent Allan McDonald was on trial in August 2013 at the High Court at Livingston for the rape of a woman in Kirkcaldy earlier that year.

After the conclusion of the charge, the jury were secluded “in a room by themselves”, in terms of section 99(1) of the Criminal Procedure (Scotland) Act 1995 Act.

After the jury had been deliberating for about 10 minutes one of the jurors, who had received a missed call from her child’s school, left the jury room.

Having told the other jurors what she was doing, she went into a secure corridor and returned the call.

A “jury minder” had been at the door of the jury room but did not stop the juror from leaving.

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.

The juror was put in a separate room and the remaining members were asked to cease their deliberations while the court was reconvened outwith the presence of the jury.

The respondent argued that a “miscarriage of justice” may have occurred, as the effect of the juror’s absence from the deliberations could not be known, and therefore section 99(5) should apply and an acquittal should follow.

The advocate depute conceded that there had been a “serious” breach of section 99 of the 1995 Act, but 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.

The judge was referred to the 1997 case of Thomson v HM Advocate, which stated: “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…”

The judge was also referred to the 2012 case of HM Advocate v Paterson, in which it was held that, in order 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”.

Ultimately however, the judge 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.

The Crown appealed the acquittal by Bill of Advocation, arguing that the “appropriate remedy” ought not to have been acquittal, but desertion, while the respondent maintained that the trial judge’s application of sub-section 99(5) had been “correct”.

However, the appeal judges held that the trial judge had been “in error”.

Delivering the opinion of the court, Lord Carloway said: “In HM Advocate v Paterson, the court (at para ) attempted to make the position, following upon the Lord Justice General’s dictum, crystal clear…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.”

He added: “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 at para ) 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.”