Introduction

The case of Natalie McGarry (also known as Meikle) versus Her Majesty's Advocate (HMA), adjudicated by the Scottish High Court of Justiciary on February 23, 2023, addresses significant issues regarding the influence of social media publicity on the fairness of a trial. McGarry, a former Member of Parliament, was convicted of two charges of embezzlement and subsequently sentenced to two years of imprisonment. Her appeal primarily contended that pervasive and prejudicial social media coverage impaired her right to a fair trial.

Summary of the Judgment

The appellant, Natalie McGarry, was convicted on two charges of embezzlement involving the misappropriation of funds from "Women for Independence" and the Glasgow City branch of the SNP. She appealed her conviction on the grounds that extensive social media publicity compromised the fairness of her trial by implicitly suggesting her guilt. The High Court of Justiciary, presided over by Lady Dorrian, examined whether the nature and timing of social media posts posed such prejudice. The court ultimately refused the appeal against conviction, finding that adequate safeguards were in place to ensure a fair trial despite the publicity. However, the court quashed the original sentence of two years, adjusting it to 20 months due to procedural oversights and considerations regarding the sentencing factors.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents to support its findings:

• Fraser v HMA (2014): Emphasized the reliability of jurors adhering to trial instructions and the importance of juror integrity.
• Montgomery v HMA (2000): Highlighted the assumption that juries follow judicial instructions diligently in the absence of evidence to the contrary.
• Ali v United Kingdom (2016): Reinforced the expectation that juries adhere to judges' directives without external influences.
• Murray v HMA (2022): Distinguished social media from mainstream journalism, underscoring the lack of editorial control and accountability in the former.
• HMA v Thomas Sheridan and Another (2011): Referenced regarding the sheriff’s approach to handling prejudicial publicity.
• Ferguson v HMA (2010): Considered in relation to sentencing consistency, though found not directly applicable.

These precedents collectively fortified the court's stance on the robustness of the trial process and the minimal impact of social media, given the judicial safeguards in place.

Legal Reasoning

The court's legal reasoning centered on evaluating whether the social media posts about McGarry's case introduced a level of prejudice that could irreparably taint the trial's fairness. Key points included:

• Jury Independence and Adherence: Drawing on Fraser and Montgomery, the court posited that jurors are presumed to follow judicial instructions diligently and are unlikely to be swayed by external information, especially when properly directed.
• Nature of Social Media: Referring to Murray, the court distinguished social media from legitimate journalism, noting its unregulated and often speculative nature, which jurors are expected to discern from factual proceedings.
• Judicial Safeguards: Highlighting the sheriff's extensive instructions to the jury to disregard external information and focus solely on in-court evidence, the court found these measures sufficient to mitigate any potential prejudice.
• Focusing Effect: Citing Lord Bracadale, the court emphasized how prolonged exposure to in-court evidence can overshadow any prejudicial material, ensuring that jurors remain concentrated on the trial itself.

Ultimately, the court concluded that while social media posts suggested McGarry's guilt, the established judicial protections effectively preserved the trial's integrity.

Impact

This judgment underscores the resilience of the judicial process against potential prejudicial influences from social media. By affirming the effectiveness of jury instructions and recognizing the difference between regulated media and unrestrained social platforms, the case sets a precedent that:

• The integrity of fair trials is maintained through rigorous judicial safeguards, even in the age of pervasive social media.
• Social media, due to its unregulated nature, is less likely to undermine the fairness of judicial proceedings when proper instructions are given to jurors.
• Future cases with high-profile publicity can rely on this judgment to argue that procedural protections are sufficient to ensure impartiality.

Moreover, the partial quashing of the sentence emphasizes the court's commitment to procedural correctness and proportionality in sentencing.

Complex Concepts Simplified

Desertion Pro Loco Et Tempore

This legal term refers to the suspension or discontinuation of a trial for a temporary period, effectively delaying proceedings. In McGarry's case, the defense sought to desert the trial pro loco et tempore due to prejudicial publicity, but the sheriff refused this motion.

Fade Factor

The "fade factor" relates to the diminishing influence of prior prejudicial information over time, reducing its impact on the current trial's fairness. However, in this case, the timing of the social media posts rendered the fade factor inapplicable.

Contempt of Court Act 1981

This act outlines offenses related to actions that undermine the authority or proceedings of the court, such as publishing prejudicial information during a trial. The sheriff referenced this to caution against inappropriate social media commentary.

Remand

Remand refers to the custody of an accused person awaiting trial or sentencing. The appeal highlighted an oversight in not accounting for six days spent on remand, affecting the overall sentencing.

Conclusion

The High Court of Justiciary's decision in McGarry v HMA reaffirms the judiciary's confidence in its procedural safeguards to uphold fair trials amidst modern challenges such as social media publicity. By meticulously evaluating the extent of potential prejudice and the effectiveness of jury instructions, the court maintained the conviction while adjusting the sentence to reflect procedural oversights. This judgment serves as a critical reference for future cases involving high-profile defendants and the pervasive influence of social media, ensuring that the legal process remains robust and impartial.