Natalie McGary or Meikle v. His Majesty’s Advocate [2023] HCJAC 8

Note of appeal against conviction and sentence:- On 12 May 2022, following a trial on indictment at Glasgow Sheriff Court, the appellant was convicted of two charges of embezzlement:- (1) embezzlement of £19,974 from Women for Independence; and (2) embezzlement of £4,661.02 from the Glasgow City branch of the SNP. On 30 June 2022, following the obtaining of a Criminal Justice Social Work Report, the appellant was sentenced to 2 years imprisonment. She appealed against her conviction and sentence. The appeal against conviction related to a contention that on account of prejudicial publicity before and during her trial she was denied a fair trial. The original ground of appeal contended that the Crown had a duty which they failed to discharge to take active steps to have the prejudicial material removed, however, at the appeal hearing, the issue became whether the trial sheriff had erred in refusing to desert the trial pro loco et tempore. The defence raised the issue of prejudicial publicity at various stages during the trial culminating in the motion made on day four of the trial, 8 April 2022, for desertion pro loco et tempore, which was opposed by the Crown and refused by the sheriff. The circumstances were that the appellant had previously appealed successfully to have her pleas of ‘guilty’ withdrawn and the reporting of that decision was embargoed in an effort to limit further pre-trial publicity, however, the circumstances of the former plea and sentence remained in the public domain, whilst the explanation that the circumstances of the tendering of the pleas had constituted a miscarriage of justice was not. Here it was submitted on behalf of the appellant that there was prejudice in the published material which contained the implication that the appellant was guilty and had been manipulating the system to obtain a retrial and the trial Sheriff erred in refusing to desert the case pro loco et tempore as it was for the court to ensure that the appellant received a fair trial and granting the motion would have distanced the trial from the relevant material. On behalf of the Crown it was submitted that whilst some of the posts were prejudicial to a minor extent there were present sufficient safeguards to ensure the fairness of the appellant’s trial (as described in Stuurman v HMA 1980 JC 111 and Montgomery vHMA 2000 SCCR 1044). Here the court considered whether the 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 considered that the social media posts referred to did not present such a risk and refused the appeal against conviction, citing the various safeguards that were available to ensure the appellant received a fair trial. In relation to the appeal against sentence the court considered that the sheriff had, in his sentencing statement, taken 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 which allegations were neither accepted by the appellant nor did they form part of the subject matter of the charge. The court stated that the sheriff erred in doing so, the result being that the sentence imposed was excessive and the sentence of 2 years was quashed and a sentence of 20 months was substituted.