The judgment reveals how the appeal court ruled that Ms McGarry had suffered a miscarriage of justice after initially pleading guilty to the charges. McGarry pled guilty in 2019 and was sentenced to 18 months’ imprisonment for embezzlement. However, she then successfully appealed against a sheriff’s decision not to allow her to withdraw her guilty pleas.
It was argued that McGarry should be allowed to withdraw the pleas due to the circumstances in which they were tendered. The basis of the being her mental health situation at the time and the conduct of the sheriff and her legal representatives.
McGarry had pled guilty to 2 charges, one charge of embezzling £21,000 whilst she was treasurer of the Women for Independence Organisation and one of embezzling £4,661 whilst treasurer of the Glasgow Regional Association of the SNP. In relation to the other charges pleas of not guilty were tendered.
The pleas were tendered on the 24th of April 2019. However, on the 1st of May 2019 she submitted a motion to withdraw the pleas. This motion was refused by the presiding sheriff. A sentence was imposed of 21 months’ imprisonment which was discounted to 18 months because of the early plea. The appellant’ position was that the pleas were tendered under conditions which were prejudicial.
The appellant initially instructed solicitor, Matthew Berlow, to act on her behalf. Sanction was later granted for an advocate to represent Ms Mcgarry; however, the time limit for challenging the statement of uncontroversial evidence had expired. Mr Berlow withdrew from acting and as a result the appellant had no representation at the time she was required to tender her pleas.
The appellant was assessed by a forensic psychologist, who reported symptoms consistent with a depressive episode and had a long history of a default extreme avoidant style of coping with stress. In refusing the motion to withdraw the sheriff noted that no medical report had been produced to show any ill health.
It was submitted on behalf of Ms McGarry that due to the conduct of Mr Berlow and the sheriff’s determination to ensure the case commenced, meant that the proceedings caused prejudice to the appellant.
In delivering the opinion of the court, Lord Turnbull stated: “In this state of affairs we cannot see how it can be said that the appellant’s solicitor complied with his ordinary professional obligations to the appellant and to the court.”
In respect of the conduct of the sheriff, he stated: “Had the sheriff been given proper insight into the absence of preparation, and the reasons therefore, he would have been far better informed as to how to engage in ongoing trial management and would have had a proper understanding of the extent of the appellant’s mental health issues.”
In concluding, Lord Turnbull said: “In our opinion these combined points show that the pleas were tendered by the appellant in circumstances which were clearly prejudicial to her. We are satisfied that a miscarriage of justice has occurred and that the appeal should be granted. We shall also grant authority to the Crown in terms of section 118 of the Criminal Procedure (Scotland) Act 1995 to bring a fresh prosecution.”