Peter McLeod v. Her Majesty's Advocate [2006] HCJAC 79

The appellant was convicted at Paisley Sheriff Court on 12 November 2004 by a unanimous verdict of the jury of assault to severe injury and breach of bail conditions, and on 14 December 2004 he was sentenced to 3 years imprisonment, 3 months of which were attributable to the bail aggravation. Leave to appeal against conviction was granted on appeal to the second sift judges on 25 May 2005. The single ground of appeal was:- "that there was a miscarriage of justice in respect that the jury, having retired to consider their verdict, the bar officer communicated with them and gave them certain advice concerning their deliberations outwith the presence of any other person and in breach of sections 92 and 99 of the Criminal Procedure (Scotland) Act 1995. It waqs submitted on behalf of the appellant that it was effectively a direction which the bar officer was not authorised to give and which was not given in open court and there had been a miscarriage of justice. Section 99 of the Act provides for what may happen procedurally after a jury has retired to consider their verdict and are enclosed. Until they intimate that they are ready to return their verdict, no person shall visit the jury or communicate with them (section 99(2)(a)). But the judge, or any person authorised by him for the purpose, may communicate with the jury for the purpose of giving a direction whether or not that is requested by the jury (section 99(3)). The court here considered whether both contraventions of section 99 and 92 could be regarded in the particular circumstances of the case as miscarriages of justice.