Court Of Session (Appeal Court) (Scotland)
Here the petitioners, the Scottish Criminal Cases Review Commission, applied to the court under section 194D(3) of the Criminal Procedure (Scotland) Act 1995 for the opinion of the High Court in relation to their ability to investigate an allegation concerning the conduct of a juror or jurors prior to seclusion. In Clow v H.M.A. (2007 SCCR 201) the court held that the confidentiality of jury deliberations was a well-established principle of Scots law:- “Suffice it to say that we are satisfied that any enquiry into the words or actions of serving jurors should be made only by the court or in furtherance of orders made by it." Here counsel for the petitioners submitted that at common law, as under the Contempt of Court Act 1981, the distinction between what could be investigated and what could not was at the point when the jury retired to consider their verdict. It was submitted that the common law rule of jury confidentiality did not apply before a jury retired to deliberate on their verdict. It was further submitted on behalf of the petitioners that if the rule did apply before the jury retired, there was an exception for matters which were extrinsic to their deliberations and it would be inappropriate to require the petitioner to seek permission from the court before making enquiries of jurors. On behalf of the Crown it was submitted that the common law rule applied from the moment of empanelment, however, extrinsic matters did constitute a well established exception to the general rule. It was further submitted that in every case the petitioners should seek permission from the court before contacting jurors. Here the court considered whether the restriction referred to in Clow should also apply to the petitioners and whether a distinction between extrinsic and intrinsic factors would have a bearing on what could be investigated by the petitioners.