Scottish High Court of Justiciary Decisons

JOHN DUNDEE KERR and GRAEME BRUCE SQUIRE v. HER MAJESTY'S ADVOCATE [1999] ScotHC 184 (9th July, 1999)

On 21 May 1996 the appellants were convicted at the High Court in Forfar on a charge of assault to severe injury, permanent disfigurement, permanent impairment and the danger of life. The charge against a co-accused was found not proven. Each of the appellants appealed against his conviction, founding on a conversation between the clerk of court and the jury after they had retired to consider their verdicts. In the course of these proceedings the court remitted to Lord Philip under section 104(1)(d) of the Criminal Procedure (Scotland) Act 1995 to enquire into and report on that matter, along with another matter with which we are not now concerned.

The circumstances from which these appeals arise are as follows. On 21 May 1996 the trial judge charged the jury, and shortly after noon they retired to consider their verdict. After a break for lunch they resumed their deliberations at about 1.50 p.m. At about 4.45 p.m. the trial judge reconvened the court. He stated to the jury:

In response the foreman of the jury stated:

The foreman confirmed that the jury were happy to continue their deliberations until that time. He then asked the trial judge for certain further directions, with which this appeal is not concerned. At about 4.55 p.m. the jury retired again.

The trial judge informs us in his report that thereafter the clerk of court made provisional arrangements for the jury to be accommodated overnight in Dundee, and for them to be transported to that accommodation. In the course of the discussion in this appeal we were informed by Mr. Boag Thomson on behalf of the appellant Squire that the hotel in Dundee with which the arrangements had been made required to know by about 6 p.m. whether they were to be confirmed. The trial judge goes on in his report to state that when the jury had not returned with their verdicts by 6 p.m. he realised that a decision would soon require to be taken as to whether it was going to be necessary to ask them to cease their deliberations, and if so, to confirm the provisional arrangements for their overnight accommodation. In these circumstances he instructed the clerk to go to the jury room and enquire of the jury whether or not they had been able to reach their verdicts. The clerk returned to him shortly thereafter and stated that the jury had not reached their verdicts. In these circumstances he gave instructions for the court to be reconvened. This took about 10-15 minutes. When the court was assembled the clerk asked the spokesman of the jury whether the jury had agreed upon their verdicts. The spokesman stated that they had, and proceeded to give the verdicts to which we have already referred.

In his report Lord Philip states that he interviewed each of the members of the jury, individually and in private, and at times which were arranged in order to avoid the possibility of one juror coming into contact with another. He states that the recollections of a number of jurors were, not surprisingly, limited and lacking in detail. His findings were as follows:

It should be added that the findings of Lord Philip are broadly in line with the terms of a report which was submitted by the clerk shortly after the conclusion of the case. A separate report was also provided by the macer who accompanied the clerk. She adds that the clerk also informed the jury that they had all the time that they required and were under no "undue pressure" to reach a verdict.

Mr. Boag Thomson for the appellant Squire, whose submissions were largely adopted by Mr. McBride for the appellant Kerr, maintained that the verdict of the jury should be quashed on two grounds. Firstly, there had been a contravention of the provisions of section 99 of the Criminal Procedure (Scotland) Act 1995, with the consequence that there should be acquittal in terms of subsection (5) of that section; and secondly that in any event there had been a miscarriage of justice in respect that the jury had been subjected to undue pressure in reaching their verdicts.

The general rule set out in subsection (2) of section 99 that no person shall visit the jury or communicate with them after they have retired to consider their verdict is subject to a number of exceptions. These include what is provided for, or made necessary, by an instruction under subsection (4), which empowers the judge to give such instructions as he considers appropriate in regard to various matters. Under para. (b) there is "the making of arrangements for overnight accommodation for the jury and for their continued seclusion if such accommodation is provided".

Mr. Boag Thomson did not criticise the trial judge for the instruction which he had given to the clerk, although it was not specifically covered by subsection (4), but submitted that the clerk had exceeded that instruction by communicating with the jury in a way which went beyond that instruction. Mr. McBride, on the other hand, criticised the trial judge on the ground that he had overstepped his power under that provision.

The critical point for this first ground of appeal is whether there was a contravention which fell within the scope of subsection (5) of section 99. In Thomson v. H.M. Advocate 1997 S.C.C.R. 121 it was held that that provision was not intended to apply to every communication with a jury, but only to communications in cases where the law would presume some irregular and partial purpose. In the present case the purpose of the communication is known and, as both counsel accepted, was innocent. The instruction from the trial judge was, in our view, incidental to the making of arrangements for overnight accommodation under para. (b) of subsection (4). The conversation which took place between the clerk of court and the foreman of the jury was no more than a natural consequence of the clerk carrying out that instruction. It would have been highly artificial, not to say abrupt, for the clerk to have refused to give any response to what was said to him, in order to explain what would happen.

As regards the second ground of appeal, Mr. Boag Thomson submitted that what the clerk had said to the foreman of the jury plainly put them under pressure to reach a verdict. He founded in particular on the fact that, as was found by Lord Philip, he said to him that "if when that had been done they had reached a verdict, good and well, if not, they would require to go to a hotel". That was said in a context in which some of the jurors had plainly expressed concern at the prospect of doing so.

In our view the jury were not put under any pressure to reach their verdict. It is necessary to put the conversation within the context of what had already happened in the presence of the jury. The trial judge had clearly indicated to them that he had in mind that they would require to be accommodated overnight if they did not reach their verdicts by a certain stage. He had mentioned six o'clock and the spokesman of the jury had indicated that they were happy to continue their deliberations until that time. In these circumstances the members of the jury would not have found it unexpected that the clerk of court stated that he would require to reconvene the court with a view to their being accommodated overnight. It was always open to the jury to reach their verdicts by the time that the court was reconvened, which in this case, as is entirely usual, took 10-15 minutes. He would not have been entitled to instruct them to break off their deliberations immediately, even if he had wanted to do so. He repeated the trial judge's assurance that they should not feel under any pressure in reaching a verdict. In these circumstances we do not regard what the clerk said to the jury as going in any respect beyond the substance of what the trial judge had already communicated to the jury, or as being in itself objectionable.

While the reasons which we have given above are sufficient for the disposal of these appeals we should add some observations as to the events which occurred in this case. We are bound to say that it would have been preferable if the trial judge had not instructed the clerk to go to the jury room in order to discover whether the jury had reached their verdicts. That course of action was unnecessary. If the trial judge had wanted to discover whether, despite the passage of time, the jury had not reached a verdict so that the overnight arrangements would require to be confirmed and the jury instructed to break off their deliberations, he could, and in our view, should, have ascertained this by requiring the court to be reconvened so that the foreman of the jury could be asked in open court whether they had reached their verdicts. To send the clerk to the jury room in order to ask them whether they had reached a verdict naturally gave rise to the conversation which we have already described. While it was a natural consequence of the trial judge's instruction, it was undesirable that this situation should have been allowed to develop, with the opportunity for misunderstanding and the kind of complaint with which the present appeals are concerned. It is desirable that the proceedings relating to the question whether the jury should break-off their deliberations and be accommodated overnight should take place in open court. It is, of course, important that the jury should not be left with any sense of being under pressure from anything that is said to them. In that connection it is normal for the trial judge to make that clear to them directly and explicitly, in accordance with the guidance provided by the opinion of the court in McKenzie v. H.M. Advocate 1986 S.C.C.R. 94. It is, of course, necessary to bear in mind that even the repetition of the normal phraseology can create the very impression which it is intended to dispel. In the present case there was, in our view, no question of that.

Accordingly the appeals will be refused.