Concurrency for a Single Course of Corrupt Procurement Offending: Error in Consecutive Cumulo Sentences and Appellate Re-casting of Totality

1. Introduction

In Solemn Appeal against Sentence [2026] HCJAC 16 (Appeal Court, High Court of Justiciary; Lord Ericht delivering the opinion, with Lady Carmichael), four appellants challenged sentences imposed after jury convictions at Glasgow High Court for offences arising from a long-running corrupt procurement relationship involving supplies of telecommunications and video-conferencing equipment to NHS Health Boards.

Two appellants were company directors of Oricom Ltd (referred to below as S and B), and two were senior NHS employees (referred to as H and C). The convictions included:

  • corruption/bribery offences under the Public Bodies Corrupt Practices Act 1889 and the Bribery Act 2010;
  • fraud (for H and S); and
  • money laundering (“acquiring/using/possessing criminal property”) under Proceeds of Crime Act 2002 (“POCA”), s 329.

The appeals raised two core issues: (i) whether the sentencing judge erred by imposing consecutive cumulo sentences for certain groups of offences (H and S), and (ii) whether the overall sentences for each appellant were excessive.

2. Summary of the Judgment

The Appeal Court held that, for both H and S, the sentencing judge erred in imposing consecutive cumulo sentences because the bribery/corruption, fraud, and POCA offences formed part of the same course of criminal conduct spanning overlapping time periods within an ongoing corrupt business relationship. The correct structure was concurrent sentencing.

Crucially, the court emphasised that identifying a sentencing-process error is not enough: an appeal succeeds only if the final sentence is excessive and therefore amounts to a miscarriage of justice. Applying that test, it found that the consecutive structure produced excessive totals for H and S and accordingly re-sentenced.

In re-sentencing, the court did not merely “convert consecutive to concurrent” and leave the longest headline term unchanged. Instead, it re-cast totality by making sentences concurrent while increasing the headline cumulo term for the principal corruption/bribery group (for H and S) so that the overall concurrent sentence still reflected the full criminality.

2.1 Disposals (as varied on appeal)

  • S (Oricom director): total reduced from 8 years to 7 years (concurrent structure; bribery/corruption cumulo increased to 7 years; fraud cumulo 4 years concurrent; POCA 5 years concurrent).
  • H (NHS employee): total reduced from 8 years to 7 years (concurrent structure; bribery/corruption cumulo increased to 7 years; fraud/other cumulo 5 years concurrent; POCA 3 years concurrent).
  • B (Oricom director): total reduced from 7 years to 6 years on comparative justice (no fraud convictions; corruption/bribery cumulo reduced to 6 years; POCA 5 years concurrent).
  • C (NHS employee): total reduced from 6 years to 5 years on comparative justice (bribery reduced to 5 years; POCA 3 years concurrent).

All sentences were ordered to run from 29 April 2025.

3. Analysis

3.1 The central sentencing principle: “one course of conduct” and concurrency

The Appeal Court’s key holding is that where multiple offences (bribery/corruption, associated frauds in procurement, and POCA acquisition/possession of the proceeds) are best analysed as different facets of a single, overlapping course of criminal conduct, the sentencing structure should ordinarily be concurrent rather than consecutive.

For S, the court treated:

  • bribery/corruption offences (spanning 2010–2014),
  • procurement and invoicing frauds (2012 and 2014), and
  • POCA criminal property offences (2010–2017),

as overlapping components of an ongoing corrupt relationship with NHS bodies. They were not “separate unrelated offences committed at separate times”, but interlocking conduct within the same enterprise. The same analysis applied to H’s involvement over 2010–2015.

This is an important clarification in complex financial/crime-in-office prosecutions: courts should resist “mechanically” stacking consecutive blocks merely because counts are legally distinct; the question is whether the offending is properly characterised as distinct episodes or one scheme.

3.2 Error is not enough: the “miscarriage of justice” filter in sentence appeals

The court reiterated that sentence appeals are not allowed simply because the sentencer made identifiable methodological errors. The appeal succeeds only if the result is a miscarriage of justice—in this context, an excessive final sentence.

Precedents cited (and their influence)

  • Barnes v HM Advocate [2024] HCJAC 23, 2024 JC 364
    Cited for the proposition that the appellate court focuses on whether the final disposal is excessive (miscarriage), not on abstract identification of sentencing missteps. In the present case, this framed the court’s task after finding concurrency error.
  • Beveridge v HM Advocate [2025] HCJAC 23 at para [21]
    Reinforced the same restraint principle: errors do not mandate intervention unless they yield an unjust outcome. The court applied this by conducting a fresh evaluation of overall proportionality after restructuring sentences.
  • Hyunh v HMA [2026] HCJAC 6 at para [42]
    Again used to anchor the appellate test: the question is whether the sentence is excessive. This supported the court’s decision to intervene only where the consecutive structure inflated totals beyond what was justified.

3.3 Re-casting totality: concurrency may require a higher headline to reflect full criminality

A particularly significant feature of the decision is the method of correction. The court held that once sentences are properly made concurrent, the original totality discount (which had been calibrated on the assumption of consecutivity) cannot simply be left in place. The court must recalculate totality to ensure the final sentence:

  • reflects the overall criminality,
  • is proportionate, and
  • does not understate the additional wrongdoing represented by secondary counts.

Thus, for both S and H, the court increased the bribery/corruption cumulo headline to 7 years (from 6 and 5 respectively) while making fraud and POCA sentences concurrent. This approach prevents concurrency from producing an outcome that reflects only the most serious “category” of offending (here, corruption) while insufficiently acknowledging the additional fraud conduct.

The practical precedent is that an appellate court correcting an “over-consecutive” structure may legitimately:

  • convert to concurrency as the correct structural principle, yet
  • increase a headline cumulo term within that concurrent structure,

provided the ultimate total is not excessive and accurately represents the overall scheme.

3.4 “The essence is the corrupt process”: harm is not limited to financial loss

Across the appeals, the court consistently rejected mitigation framed as “no loss to the public purse” or “good value/high quality work”. The court treated the core wrong as undermining proper public procurement and compromising integrity in public office.

This clarifies (and, in practice, hardens) sentencing analysis in bribery/public corruption cases: even if pricing and performance were acceptable, bribery corrupts decision-making, defeats controls (e.g., internal authorisation limits and tendering safeguards), and damages public trust.

3.5 Comparative justice within co-accused

The court used comparative justice to calibrate sentences among the four appellants after re-sentencing H and S to 7 years each.

  • B: Because B was not convicted of fraud (unlike H and S), leaving B at 7 years would equate overall punishment despite materially different conviction profiles. The court found this would itself create a miscarriage of justice and reduced B to 6 years.
  • C: C faced only a single bribery count (plus POCA). After lowering other sentences, the court reduced C from 6 to 5 years to maintain proportionate differentiation.

The decision illustrates comparative justice as an active constraint: it is not merely a secondary “sense-check”, but can drive reductions where parity would otherwise become distortion.

3.6 Use (and limits) of English sentencing guidelines submissions

B and C relied on the English sentencing guidelines’ culpability/harm framework to argue for lower ranges. The court did not treat those guidelines as determinative in Scotland, and in any event reiterated that “better terms than the previous supplier” does not neutralise the corrupt nature of the conduct. The implicit takeaway is that while comparative materials may inform submissions, Scottish appellate review remains anchored in Scottish sentencing principles (notably totality, proportionality, and comparative justice within the case).

3.7 POCA counts and concurrency

In each appellant’s case, the POCA s 329 conviction was sentenced concurrently. The Appeal Court’s “single course of conduct” analysis reinforces that where the POCA charge criminalises possession/acquisition of the proceeds generated by the very bribery/fraud scheme being sentenced, concurrency will often be appropriate—though the POCA count remains relevant to assessing the overall criminality and therefore the appropriate headline.

4. Complex Concepts Simplified

  • Concurrent vs consecutive sentences: Concurrent sentences are served at the same time (the longest term usually dictates the total). Consecutive sentences are served one after another (terms are added).
  • Cumulo sentence: A single sentence imposed to cover multiple charges, reflecting their combined seriousness.
  • Totality principle: The overall sentence must be just and proportionate to the whole offending. Courts adjust to avoid either double-counting or undercounting when multiple convictions are involved.
  • Miscarriage of justice (in sentence appeals): The appeal court intervenes only if the final sentence is excessive/unjust—not merely because a judge’s reasoning was imperfect.
  • Comparative justice: Co-accused should receive sentences that are appropriately differentiated according to their roles, convictions, and culpability; unjustified parity (or disparity) can itself be appealable.

5. Impact

This decision is likely to be cited in future Scottish sentence appeals—particularly in complex bribery/procurement cases—for four practical propositions:

  1. Single scheme analysis: bribery/corruption, scheme-related fraud, and POCA proceeds offences may constitute one course of conduct calling for concurrency.
  2. Appellate restraint with teeth: sentencing error matters only if it yields an excessive final sentence (the “miscarriage” threshold), consistent with Barnes v HM Advocate [2024] HCJAC 23, 2024 JC 364, Beveridge v HM Advocate [2025] HCJAC 23, and Hyunh v HMA [2026] HCJAC 6.
  3. Totality re-casting after structural correction: shifting from consecutive to concurrent may justify adjusting headline cumulo terms so the overall sentence still captures the full criminality.
  4. Corruption harm is institutional: “no loss” and “good service” arguments have limited traction where the gravamen is corruption of public decision-making.

6. Conclusion

In [2026] HCJAC 16, the High Court of Justiciary Appeal Court corrected an important sentencing misstep in complex corruption litigation: where multiple convictions are facets of a single corrupt procurement scheme, consecutive cumulo blocks may be inappropriate, and concurrency should be adopted. But the court also underscored that concurrency is not a shortcut to leniency: totality must be reworked so the overall sentence reflects the whole course of criminal conduct. Finally, the court used comparative justice to ensure proportionate differentiation among co-accused, reducing sentences for those with narrower conviction profiles.