BARRY MCGRORY v. HER MAJESTY'S ADVOCATE

Factual and Procedural Background

On 21 November 2012, at the High Court in The City, the Appellant was found guilty by a unanimous jury verdict of the murder of the Deceased by stabbing on 25 October 2009, at The City. The Appellant was sentenced to life imprisonment with a punishment part of 20 years, backdated to 27 October 2009 when originally remanded in custody. A previous trial in April 2010 had also resulted in a conviction but was quashed due to a misdirection regarding statements of a former co-accused on 21 December 2011. A re-trial was ordered, but the first re-trial was deserted in July 2012 after it was discovered that a local paper disclosed the previous trial verdict. The second re-trial commenced on 9 November 2012.

Legal Issues Presented

1. Whether the trial judge erred in refusing to adjourn the trial to allow removal of prejudicial internet material.
2. Whether the trial judge erred in warning a witness about self-incrimination rights when that witness was not immune from prosecution.
3. Whether the sentence imposed was excessive given the circumstances of the murder and the Appellant's background.

Arguments of the Parties

Appellant's Arguments

• The trial judge should have adjourned the trial for two weeks to allow prejudicial headings and straplines related to the case to be removed from internet links, especially given two previous trials.
• The trial judge erred in warning the witness (IW) that he was not obliged to answer questions relating to crimes for which he had not been convicted or acquitted, as by law the witness should have had immunity from prosecution. This warning allegedly affected the witness's testimony and the ability of the defence to challenge it.
• The sentence was excessive; there were no aggravating features justifying a punishment part of 20 years, especially since the stabbing was not premeditated and the Appellant had no previous solemn convictions and limited prior offences.

Respondent's Arguments

• The Crown made strenuous efforts to remove prejudicial material from internet sources, but complete removal, especially of cached links, was impractical within any short timeframe.
• The fairness of the trial could be ensured through judicial directions to the jury, as supported by precedent, rather than by adjournment.
• The witness was not immune from prosecution because he was not a socius criminis (an accomplice in the murder), and the warning was appropriate to protect his rights.
• The sentence was appropriate given the severity of the stabbing, the circumstances of the assault, and the impact on the victim's family.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the first ground by considering the practicality of removing prejudicial internet material. It found that complete removal was unlikely within the requested two-week adjournment and that judicial directions to the jury, as per established precedent, were sufficient to ensure fairness. The trial judge’s discretion in refusing the adjournment was not found to be in error.

Regarding the second ground, the court examined the legal concept of immunity for witnesses who are socii criminis. It concluded the witness was not a socius criminis because the evidence indicated he did not participate in the murder itself, only in prior assaultive conduct. Consequently, the witness was not immune from prosecution, and the warning given was appropriate as a protective measure akin to a police caution. The court rejected the argument that the warning prejudiced the Appellant or altered the witness’s testimony.

On sentencing, the court considered the severity of the stabbing, the Appellant’s conduct of fetching and using a knife on a defenceless victim, and the impact on the victim’s family. It found the punishment part of 20 years consistent with the seriousness of the offence and the relevant sentencing guidelines, dismissing the Appellant’s contention that the sentence was excessive.

Holding and Implications

The court DISMISSED the appeal against conviction and sentence.

The decision confirms that trial judges have discretion to refuse adjournments aimed at removing prejudicial internet material when such removal is impractical and fairness can be maintained by jury directions. It also clarifies that immunity from prosecution applies only to socii criminis who give evidence against co-accused, and that warnings to witnesses without immunity are appropriate protections. The sentence imposed was upheld as proportionate to the gravity of the offence. No new legal precedent was established beyond the application of existing principles.