Scottish High Court of Justiciary Decisons

"Thereupon, the said court officer advised that the bell in the jury room had rung and that she attended, at which time she stated that the jury indicated to her that they required directions in law as to certain deletions. They also, she stated, enquired of her if certain parts of the indictment could be found to be not proven or if they should indicate that they thought that the complainer was not guilty of certain parts of the indictment. She followed on to say that she then gave them advice as to what they could do, however, she was inspecific as to what advice she had given them. She then went on to say that she then came into court to advise parties of this development".

"The foreman indicated that they had required certain directions in law with regard to deletions, and that the court officer had then entered into discussion with them and provided them with some "hypothetical scenarios" of which he had no recall. He indicated that she also offered to get them a clean copy of the indictment. They then reached a verdict, he stated by taking an overall approach. He was not asked to clarify matters any further. The jury were then asked to return to the jury room".

"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 a 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 fact that subsection (5) is aimed at preventing pressure being put on the jury to convict the accused also explains why the prosecutor is specially mentioned in the subsection ... On the other hand, I do not accept the trial judge's argument that the words 'or any other person' fall to be construed ejusdem generis with 'the prosecutor' and so to be narrowly confined to persons such as the police or procurator fiscal. It appears to me that the class of other persons must be wide enough to cover, say, some government official or the members of some particular pressure group who wished for some reason to ensure that the accused was convicted".

"What, that I think, can be said is that the 1587 Act had in view communications of a sort, emanating from a source, which might be thought capable of having some improper influence on the jury's verdict. That is, in my opinion, the approach which ought to be kept in mind in applying the provisions of what is now section 99 (5). On that approach, it seems to me that one can say, quite clearly, that even if it is correct, as the appellant argued, that there was a communication by the trial judge through his clerk to the jury, it was not a 'contravention' of a kind, and did not come from a source, which would bring into operation the stringent provisions of subsection (5) and lead to an acquittal of the accused".