Former MP Natalie McGarry has sentence for embezzlement reduced on appeal

About this case:

• Citation:
  [2023] HCJAC 8
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

In an appeal against her conviction and sentence, Natalie McGarry argued that the significant volume of publicity surrounding her trial, particularly on social media, had a prejudicial effect that prevented her from having a fair trial. It was accepted by the Crown that some social media posts had minor prejudicial effect, but its position was that this was not enough to prevent the trial from being fair.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, alongside Lord Pentland and Lord Matthews. Jackson KC and A MacLeod, advocate, appeared for the appellant and Prentice KC and C McKenna, solicitor advocate, for the respondent.

Manipulating the system

Following trial, the appellant was convicted of two charges of embezzlement, one involving embezzlement of £19,974 from an organisation called Women for Independence and another of £4,661.02 from the Glasgow City branch of the SNP. She had been responsible for the funds of both organisations and claimed that she had reimbursed herself legitimately for outlays for work properly carried out.

The trial at which the appellant was convicted was the second set of proceedings brought against her. In the original proceedings, she had tendered pleas of guilty and was duly sentenced, but she later appealed to allow the pleas to be withdrawn, which led to a fresh prosecution. There was widespread reporting in the mainstream media concerning these proceedings, but the focus on appeal was social media posts leading up to the trial, many of which carried the implication that the appellant must be guilty of the offences with which she was charged.

On the fourth day of the trial, the defence made a motion for desertion pro loco et tempore based on the publicity issue, which was opposed by the Crown and refused by the sheriff. It was argued by the defence that these posts could amount to contempt of court and a request was made for the Crown to contact the individuals responsible. The Crown refused to do so but the sheriff stated in open court that the posters could risk being in contempt.

It was submitted for the appellant that the sheriff had erred in refusing to desert the trial. The posts implied that the appellant had been manipulating the system to obtain a retrial, which carried a real risk of prejudice when made so close to the trial diet. For the Crown it was submitted that, while some of the publications were prejudicial, there were sufficient safeguards in place to ensure the fairness of the appellant’s trial.

Gossip and tittle-tattle

Lady Dorrian, delivering the opinion of the court, began: “The majority of the social media posts note that the appellant previously pled guilty and ask how in these circumstances there can be a retrial. The general tenor of many of them is that she must be guilty of the charges. The question is whether these posts presented a degree of prejudice to the fairness of the trial, in respect of the independence of the tribunal, so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it. We are satisfied that this is not such a case.”

Noting the “thorough and careful” directions given to the jury, Lady Dorrian said: “Jurors can be taken to follow the instructions given to them, particularly on an issue which is so straightforward, is a further factor of relevance in the difference between mainstream publications or news agencies and social media. Unlike the former the latter operate without editorial control, frequently in an irresponsible manner and usually unaccountable to others, unless in extreme cases they may be traced and prosecuted for contempt.”

She went on to say: “They do not represent what is commonly understood by the word ‘journalism’. They are not designed, and frequently do not even purport to be, fair and accurate reports of proceedings. They are in many respects the modern-day equivalent of gossip and tittle-tattle at the bus stop or the pub. As adults with a collective intelligence and common sense, jurors know and understand this. This strengthens the validity of the safeguard to be found in the directions given in high profile cases: jurors can be trusted to understand the importance of this, and the importance of keeping an eye out for other jurors having acted in a rogue manner.”

Turning to the length of sentence, Lady Dorrian said: “The appeal was also against the sentence of two years imprisonment, but limited to two issues: a failure to give credit for a period of 6 days spent on remand; and secondly that the sheriff took account of evidence that the appellant had falsely claimed that she was about to be evicted and borrowed money from colleagues to pay for her rent as an aggravation to the charges. These allegations were not accepted by the appellant and did not form part of the subject matter of the charge.”

She concluded: “Such evidence as there was of dishonesty of the kind specified in the last sentence formed no part of the charges laid and proven against the appellant. In stressing that aspect of the case as he did, it seems that the sheriff took this into account in reaching the sentence which he selected, leading him to impose a sentence which may properly be described as excessive.”

The appeal against convicted was therefore refused, but in relation to sentence the High Court quashed the original sentence of two years’ imprisonment and imposed one of 20 months.