HER MAJESTY'S ADVOCATE, BILL OF ADVOCATION BY v McDONALD

[1] Section 99 of the Criminal Procedure (Scotland) Act 1995 makes provision for the seclusion of the jury to consider their verdict. It states that, except in so far as instructed by the judge in certain defined circumstances, including the communication of private messages:

“(5) 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.”

[5] The Crown appealed the acquittal by Bill of Advocation. Under reference to Thomson, Paterson and also Fleming v HM Advocate 2005 SCCR 324 and Carswell v HM Advocate 2009 JC 59 , it was argued that the appropriate remedy ought not to have been acquittal, but desertion. The respondent resisted the Bill and maintained that the trial judge’s application of sub-section 99(5) had been correct.

[6] It is well established that the interpretation of section 99(5) of the 1995 Act is governed by the dictum of the Lord Justice General (Rodger) in Thomson v HM Advocate 1997 JC 55 (at p 60). It is as follows:

“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 … [citing Hume, Commentaries , vol ii, p 420].