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  4. McGarry trial fair despite social media: Appeal Court

McGarry trial fair despite social media: Appeal Court

27th February 2023 | criminal law | Criminal court work

Extensive comments posted to social media prior to the trial of former SNP MP Natalie McGarry on embezzlement charges did not result in an unfair trial, and the sheriff did not err in refusing to desert the diet pro loco et tempore, the Criminal Appeal Court has ruled.

Lord Justice Clerk Lady Dorrian, Lord Pentland and Lord Matthews gave the decision in refusing Ms McGarry's appeal against conviction on charges of embezzling sums of £19,974 and £4,661 from, respectively, the Women for Independence organisation and the Glasgow City branch of the SNP, for both of whose funds she had been responsible. The court did reduce the sentence imposed from two years' to 20 months' imprisonment.

In previous proceedings in 2019, Ms McGarry had pleaded guilty and been sentenced, and then sought permission to withdraw her pleas, which was refused by the sheriff but allowed on appeal, with authority for a fresh prosecution. Her case attracted wide publicity.

Before the present case came to trial, numerous social media posts appeared, questioning the withdrawal of the plea and why a new trial was taking place, many of them implying that Ms McGarry must be guilty. The Crown refused a defence request to contact those responsible and warn of possible contempt of court; the sheriff refused to order such a course but asked the Crown to consider the matter, and gave his own warnings which were reported. Before, during and at the end of the trial he warned the jury not to make their own internet inquiries, and to put out of their minds anything other than the evidence led in court.

For Ms McGarry it was argued that with reporting of the previous appeal decision having been embargoed, the effect was that the reporting of the plea and sentence remained in the public domain but not the circumstances supporting the withdrawal of the plea. The content and timing of the social media posts so close to, and during, the trial increased the risk of prejudice. It was for the court to ensure a fair trial so far as possible, and the sheriff erred in refusing tp desert the diet.

Delivering the opinion of the court, Lady Dorrian said the question was "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".

The court was satisfied that this was not such a case. The sheriff had given thorough and detailed directions, and there was no basis for thinking the jury did not follow them. "In fact, the reverse is true given that the jury returned a discriminating verdict with deletions and by a majority."

It was also relevant that the complaints did not concern the mainstream media, but material that did not constitute "journalism" as commonly understood. "[The posts] are not designed, and frequently do not even purport to be, fair and accurate reports of proceedings", Lady Dorrian said.

"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. In short, they are to be treated as sensible adults."

A further safeguard was the discipline of the trial process itself: here the jury had heard more than 30 witnesses and seen hundreds of documents in a trial lasting a month. "The focussing effect of all this would have been significant."

It was therefore impossible to say that the sheriff was not entitled to refuse the motion or that an unfair trial resulted. However sentence would be reduced as the sheriff had taken account of a matter that did not form part of the charges, and had omitted to take into account six days spent in remand.

Read the opinion here.

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