Newly published papers reveal reason Natalie McGarry's original conviction was quashed
A court judgment handed down in 2019 but only published this week has revealed why senior judges ruled former SNP MP Natalie McGarry had suffered a miscarriage of justice after initially pleading guilty to embezzlement charges.
Last week McGarry was found guilty of embezzling around £25,000 from pro-independence group Women for Independence and the Glasgow Regional Association of the SNP, having original faced trial on the same charges in 2019.
She was jailed for 18 months after pleading guilty at the first trial, but was freed on bail after lodging an appeal.
Though it was reported in December 2019 that Judges Lord Carloway, Lord Glennie and Lord Turnbull had quashed the original conviction on the basis that McGarry had made the plea in “circumstances which were clearly prejudicial to her”, their findings were not released in case they influenced the jury in her retrial.
While it is highly unusual for the courts to agree to set aside a guilty plea, the newly published opinion, written by Lord Turnbull, reveals that McGarry’s legal team in the appeal – which was led by the former dean of the Faculty of Advocates, Gordon Jackson QC – claimed that the plea was made under “exceptional circumstances”.
“Those exceptional circumstances are said to arise out of aspects of the presiding sheriff’s conduct, coupled with criticisms of the quality and extent of the legal representation provided to the appellant,” the judge wrote.
The document reveals that Jackson said McGarry’s mental state had been such that she was unable to provide proper instructions when initially meeting with her first lawyer, Matthew Berlow of the law firm Berlow Rahman, and that Berlow’s decision to withdraw from the case minutes before the trial started had left her in "in highly pressurised circumstances" with no opportunity to take legal advice.
Lord Turnbull criticised Berlow’s handling of the case, noting that the judges could not “see how it can be said that the appellant’s solicitor complied with his ordinary professional obligations to the appellant and to the court”.
Despite the fact McGarry had been left with no legal representation following Berlow’s withdrawal and that she was visibly upset, the papers record that Sheriff Paul Crozier told her the trial would go ahead as planned. It was under these circumstances that McGarry entered her guilty plea.
Lord Turnbull was critical of Crozier, writing that it was “inappropriate” to tell McGarry that “he would give her 10 minutes to consider her position, on the eve of a lengthy trial when her solicitor had just withdrawn from acting and when she was in an upset condition”.
However, he noted that the sheriff had not been given “an informed understanding” of McGarry’s circumstances and had not been made aware of “the limited extent to which there had been any proper professional engagement with the appellant in the preparation of her case”.
Speaking to Holyrood, Berlow, who no longer works for Berlow Rahman, said he had withdrawn from the case because the Scottish Legal Aid Board had agreed to fund counsel for McGarry.
“The Legal Aid Board were paying and had agreed that this case needed counsel," he said.
"After I’d spoken to counsel I was told that it would not be appropriate for me to do her case because it had sanction for counsel – it would not be appropriate for a solicitor to do her case.”
A spokesperson for the Scottish Legal Aid Board said: "An application for sanction for counsel was received from Ms McGarry's legal team and this was granted. Permission to employ counsel does not mean a solicitor has to withdraw from the case."
Berlow, who is listed on the website of Graham Walker Solicitors, added that he left Berlow Rahman yesterday after making the decision to go freelance.
The firm is now run by Jelina Berlow-Rahman – Berlow’s wife – and fellow solicitor Haseeb Hassan and has rebranded as Berlow Rahman Hassan. That firm was incorporated last November.
Next month Berlow is due to appear before the Scottish Solicitors’ Discipline Tribunal (SSDT) for a procedural hearing in what Berlow said is an unrelated case.
In 2018, Berlow was fined £1,750 after the Law Society of Scotland found he had “failed to maintain the standards of behaviour expected of a solicitor” when he used derogatory language when referring to pro-Palestinian activists in an online blog. He appealed that finding to the SSDT, but it upheld the Law Society’s decision.
Last month it was revealed that Jackson, who stood down as dean of the Faculty of Advocates two years ago, had been found guilty of professional misconduct after discussing details of Alex Salmond’s sexual offences trial on a train. Jackson had represented the former first minister – who was acquitted – in the 2020 case.
McGarry is due to be sentenced next month following the guilty verdict in her most-recent trial.