Comparative Sentencing Requires Broad Proportionality, Not Mathematical Equality

1. Introduction

These appeals concerned comparative justice in sentencing: when differences between sentences imposed on participants in connected criminal activity justify appellate intervention.

Both appellants had been convicted after trial of serious organised crime offences and conspiracy to murder. The first appellant compared his sentence with those imposed on offenders in connected proceedings and, subsequently, with sentences from an unrelated organised crime prosecution. The second appellant argued that his lesser involvement and different personal circumstances required a greater reduction relative to the first appellant.

The principal issue was not whether sentencing consistency matters—it plainly does—but how that objective interacts with individual culpability, criminal records, statutory offences, guilty-plea discounts and the method used to sentence multiple offences.

The supplied opinion’s central proposition is that comparative justice requires a broad assessment of materially comparable cases, rather than mathematically precise differentials. The ultimate appellate question remains whether the challenged sentence was excessive in all the circumstances.

2. Background and Sentences

The offending

The prosecution relied substantially on EncroChat communications recovered through investigations associated with Operation Venetic. Those communications, supported by police observations and agreed facts, demonstrated organised drug activity and an advanced plan to murder an intended victim.

The murder conspiracy involved identifying the intended victim’s address and vehicle, monitoring movements, recruiting prospective killers, arranging accommodation, obtaining stolen vehicles with false number plates, and discussing the concealment of the firearm and destruction of evidence. The communications also contemplated disposal of the victim’s body.

The shooting did not occur because the third prospective killer, after travelling from Liverpool to Glasgow, rejected the proposed getaway arrangements and withdrew. The sentencing judge considered that the plot’s failure did not reflect any reluctance by the first appellant to proceed.

The appellants’ respective convictions

• First appellant: directing serious organised crime under section 30(1)(a) of the Criminal Justice and Licensing (Scotland) Act 2010, involving several controlled drugs and criminal property, together with conspiracy to murder aggravated by a connection with serious organised crime.
• Second appellant: involvement in serious organised crime under section 28(1) of the 2010 Act, concerning benzodiazepine supply and encrypted communications, together with the same murder conspiracy, subject to material deletions in the jury’s verdict.

For the second appellant, the jury deleted allegations that he agreed the price for the murder and discussed testing the firearm. Nevertheless, the remaining verdict established substantial participation in the plan.

The sentencing structure

Each conspiracy custodial term included six months for the serious organised crime aggravation. The judge reduced the aggregate custodial terms from 17 to 13 years and from 14 to 11 years respectively to achieve a proportionate overall result.

Both appellants had previous convictions for violence, with the first appellant’s record materially more serious. The second appellant also relied on adverse childhood experiences, mental health difficulties and indications of rehabilitative potential.

3. Summary of the Supplied Decision

The superseded opinion records that both sentence appeals were refused.

• The first appellant’s proposed comparators differed materially in their offences, responsibilities, criminal records or sentencing circumstances.
• The unrelated 2023 sentences were examples of broadly similar offending, not direct comparative justice benchmarks.
• The second appellant was a significant participant in an advanced murder conspiracy, rather than merely an accommodation provider.
• The sentencing judge had recognised the differences between the appellants through different individual and cumulative sentences.
• Neither final sentence was considered excessive or productive of a miscarriage of justice.

The appellants had abandoned earlier conviction challenges based on non-disclosure. The opinion therefore does not determine those challenges or establish a ruling on the legality or admissibility of EncroChat evidence.

4. Statutory and Sentencing Framework

The statutory distinction between the organised crime offences was important. As the opinion explains, the maximum sentence under section 28 of the 2010 Act was ten years’ imprisonment, whereas the maximum under section 30 was fourteen years. Conspiracy to murder carried a maximum of life imprisonment.

Those differences undermined an attempt to equate a conviction under section 28, even where its narrative included murder-related conduct, with separate convictions for directing organised crime and conspiracy to murder. The court examined both the legal basis of conviction and the offender’s actual responsibility.

The opinion also relied on two Scottish Sentencing Council guidelines:

• Principles and purposes of sentencing: sentencing must be fair and proportionate, with similar cases treated similarly, but not necessarily identically.
• Sentencing process: the court must identify culpability and harm, including potential harm, before evaluating aggravating and mitigating circumstances.

These principles explain why consistency cannot displace individual assessment. The court must consider the precise offence, the offender’s role, personal mitigation and criminal record, and the overall proportionality of the resulting sentence.

5. Precedents Cited and Their Significance

5.1 The comparative justice principle

Armstrong v HM Advocate [2021] HCJAC 34, 2021 JC 227 supplied the principal starting point: co-accused convicted of the same offence ought generally to receive substantially the same sentence, and the severity or leniency of one participant’s sentence is relevant when sentencing another.

The supplied opinion emphasised both qualifications: “substantially” permits justified variation, and the principle concerns persons convicted of the same offence. Differences in criminal history, reduced culpability through youth, and exceptionally radically different roles may justify different sentences.

In Armstrong v HM Advocate, the appellant came within the Scottish Sentencing Council’s Sentencing young people guideline. Taking account of a relatively lenient comparator, the court reduced an extended sentence from thirteen years, including ten years’ custody, to eleven years, including eight years’ custody. However, it did not reproduce the comparator’s failure to receive an extended sentence where one appeared warranted. The present opinion used that feature to show that comparative justice does not require replication of every aspect of another disposal.

Thomas v HM Advocate [2014] HCJAC 66 was invoked by the first appellant for the proposition that an earlier sentence for the same offence remains relevant even where a different judge imposed it. The supplied opinion records that submission but does not separately analyse the authority’s facts or reasoning. It should therefore not be treated as having rejected or comprehensively restated Thomas v HM Advocate.

5.2 Joint criminality and differences in role

In Simpkins v HM Advocate 1985 SCCR 30, the Lord Justice General stressed that participants in a criminal team enterprise cannot avoid the sentencing consequences of participation simply because their assigned role was supporting rather than leading.

The opinion used that reasoning to resist an artificially narrow description of the second appellant’s responsibility. His accommodation arrangements were part of a coordinated murder plan, not an isolated service detached from its purpose.

Cosgrove v HM Advocate [2007] HCJAC 54, 2008 JC 102 appeared through the discussion in Armstrong v HM Advocate as supporting exceptional differentiation where participants’ roles were radically different. The present three-judge court urged caution because Cosgrove v HM Advocate was a two-judge decision which had not considered Simpkins v HM Advocate and cited no authority.

That observation was a warning about the breadth of reliance on Cosgrove v HM Advocate, not an express statement that role differences are irrelevant. Indeed, the opinion accepted that culpability can vary between co-accused.

5.3 Broad comparison rather than mathematical calibration

Douglas v HM Advocate [2023] HCJAC 32, 2024 JC 31 was the central authority adopted and endorsed. It concerned organised crime involving drugs and firearms, with two co-accused also convicted of conspiracy to murder.

The appellant’s six-year headline sentence was forty per cent below the ten-year headline sentences selected for those co-accused. Despite substantial personal mitigation, his comparative appeal failed. The court considered that the differential adequately reflected the respective criminality and records, while observing that the comparators’ sentences appeared relatively lenient.

The crucial proposition was that comparative justice must be approached broadly: drawing fine distinctions between participants is not helpful, and the final question is whether the appellant’s sentence was excessive in all the circumstances.

At paragraphs 50–51, the present three-judge court expressly adopted that approach. This was the supplied opinion’s principal doctrinal emphasis: sentencing involves evaluative judgments that cannot realistically be reduced to precise arithmetic.

5.4 An erroneous sentence need not become a benchmark

HM Advocate v Smith [2026] HCJAC 22, 2026 JC 268 illustrated why comparative justice must not perpetuate sentencing error.

One participant initially received twenty-eight months’ imprisonment with a supervised release order. Another received an eight-year extended sentence, including six years’ custody, for the same principal offence. The latter’s attempt to appeal by comparison was refused leave. The Crown’s appeal against the shorter sentence subsequently succeeded, producing an extended sentence of eight years and two months, including five years and two months’ custody.

The errors identified included incompetent reliance on section 91 of the Police, Public Order and Criminal Justice (Scotland) Act 2006, misunderstanding the implications of acting in concert, a bail-related technical error and an excessive discount for a late guilty plea.

The supplied opinion drew a general lesson: an earlier sentence affected by material error, manifest inadequacy or manifest excess does not oblige a later sentencing judge to impose a similar disposal. Consistency serves justice; it does not require copying injustice.

5.5 Comparing unrelated cases

McLachlan v HM Advocate [2026] HCJAC 14, 2026 JC 248, paragraph 32, supplied a synthesis of earlier warnings about cross-case comparisons. Through that passage, the opinion referred to:

• Mitchell v HM Advocate [2011] HCJAC 10, 2012 JC 13: sentences in other cases provide limited guidance because the nature and gravity of cases are difficult to compare.
• Rauf and ors v HM Advocate [2019] HCJAC 72, 2020 SCCR 47: sufficiently close factual similarity for direct comparison is rare.
• Keel v HM Advocate [2025] HCJAC 47, 2026 JC 69: similar observations about the limitations of comparisons between cases.

These authorities supported the distinction between a genuine co-accused comparison and a general sentencing example. The fact that separate prosecutions arose from Operation Venetic did not establish equivalent culpability or sentencing circumstances.

5.6 Multiple offences and overall proportionality

HM Advocate v Fergusson [2024] HCJAC 22, 2024 JC 376 adopted the cumulative approach proposed in McDade v HM Advocate 1997 SCCR 52. The judge identifies sentences for individual offences or groups of offences, totals them, and then adjusts the aggregate for fairness and proportionality.

This approach addresses two opposite risks: concurrent sentences may leave additional offences effectively unpunished, while unadjusted consecutive sentences may produce an excessive total. Identifying the individual components also makes sentencing more transparent to the offender, complainers and public.

The appellants were sentenced using this approach. By contrast, the unrelated 2023 comparators had received concurrent sentences before HM Advocate v Fergusson was issued. Their headline totals therefore could not simply be set alongside the appellants’ cumulative sentences.

5.7 The final sentence remains the focus

Miller v HM Advocate [2024] HCJAC 3, 2024 JC 253, paragraph 31, and Huynh v HM Advocate [2026] HCJAC 6, 2026 JC 195, paragraph 42, supported a further proposition: an error in one or more intermediate sentencing steps does not, by itself, demonstrate that the final sentence is excessive.

That does not make sentencing errors immaterial. It means that identifying an imperfect component or calculation is not a substitute for establishing the appellate significance of that error in the resulting disposal.

6. Application to the Appeals

6.1 The first appellant’s connected comparators

The first connected comparator had pleaded guilty to drug-supply offences and received four years and six months, reduced from six years. The first appellant acknowledged that this offender occupied a subordinate position.

The court considered the proposed comparison unsound because the first appellant directed that offender’s activity, bore substantially greater responsibility and had not been convicted of equivalent conduct. The subordinate’s convictions did not establish participation in serious organised crime with the appellants on the same basis.

The second connected comparator received six years and nine months, reduced from eight years and six months, after pleading guilty to a section 28 offence whose narrative included drug activity and participation in the murder plan. That offender’s culpability had been assessed as substantially below those higher in the command structure, and his criminal record was materially less serious.

The section 28 conviction, its ten-year maximum and the offender’s lesser responsibility distinguished it from the first appellant’s separate convictions. The sentencing judge confirmed that knowledge of these other sentences would not have changed his assessment.

The reasoning was therefore cumulative. Separate proceedings were not the only distinction: the offences, roles and records were insufficiently alike to support a meaningful comparison.

6.2 The unrelated 2023 sentences

The first appellant also relied on two offenders whose cases featured in Douglas v HM Advocate. Their ten-year headline sentences had been imposed concurrently and reduced by one quarter for guilty pleas.

The court identified three important obstacles:

1. Different proceedings and circumstances: broad similarities in organised crime did not establish a true comparative justice relationship.
2. Guilty-plea discounts: because the first appellant was convicted after trial, any meaningful comparison would begin with the undiscounted sentences.
3. Different aggregation methods: the 2023 concurrent sentences predated the cumulative approach explained in HM Advocate v Fergusson.

The court illustrated the last point by suggesting that cumulative treatment might have produced adjusted custodial totals of approximately fourteen and fifteen years, compared with the first appellant’s thirteen-year custodial term.

Those figures were hypothetical illustrations, not resentencing decisions, tariffs or findings that those offenders necessarily should have received those terms.

6.3 The second appellant’s comparison with the first

The second appellant presented the more direct comparison because both appellants were convicted in the same proceedings of the same murder conspiracy, albeit on differently worded verdicts.

He relied on the jury’s deletions, the short period of offending, his less serious drug involvement, personal mitigation and a suggested peripheral role. The court nevertheless considered that the surviving verdict established significant participation: surveillance, access planning, arrangements for killers and vehicles, and concealment and destruction plans.

The absence of a completed murder did not neutralise the seriousness of that conduct. The plot was advanced, a prospective killer had travelled to Glasgow, and the potential harm was extreme.

The judge had recognised lesser culpability through lower standalone sentences and a lower final custodial term. Applying the broad approach in Douglas v HM Advocate, the appeal court considered the two-year difference between the ultimate custodial terms sufficient. It declined to substitute a more finely calibrated assessment for that of the judge who had heard the evidence.

7. Complex Concepts Simplified

Comparative justice

Checking whether differences between offenders’ sentences are justified by meaningful differences in their cases. It does not require identical punishment.

Extended sentence

A sentence comprising a custodial term and an additional extension period involving supervision following release. A sixteen-year extended sentence with thirteen years’ custody is not simply sixteen years of imprisonment.

Headline or notional sentence

A sentence identified at an intermediate stage—for example, before a guilty-plea discount or before adjustment of an overall sentence for multiple offences. Comparisons must use equivalent stages.

Cumulative sentencing and totality

Assessing the individual offences, combining their sentences and adjusting the result so that the overall punishment remains proportionate.

Concurrent and consecutive sentences

Concurrent sentences run together; consecutive sentences run one after another. Their nominal lengths therefore cannot be compared without examining their practical effect.

Art and part liability

Responsibility for participating in a joint criminal enterprise. A supporting role can still involve substantial responsibility for the shared crime.

Potential harm

The serious consequences that the offending could have caused. An unsuccessful murder plot can remain highly grave even though no victim was physically injured.

Aggravation

A feature increasing the seriousness of an offence. Here, connection with serious organised crime produced an identified six-month addition to each conspiracy custodial term.

8. Significance, Limits and Potential Impact

Subject to confirmation in the replacement opinion, the reasoning offers several important lessons.

• Comparative appeals require substantive equivalence. A shared investigation, similar charge description or connected criminal network is insufficient without examining convictions, roles, records and sentencing structure.
• Leniency is relevant but not controlling. A properly comparable sentence must be considered, but a material mistake or manifestly inappropriate disposal need not be repeated.
• Successful arguments must address the final sentence. Small discrepancies between intermediate figures do not necessarily establish excessive punishment.
• Historical comparisons require care. Guilty-plea discounts and changes in the treatment of multiple offences can make apparently large disparities misleading.
• Uncompleted conspiracies can justify substantial sentences. Advanced planning, demonstrated commitment and catastrophic potential harm remain central even where the intended violence does not occur.

The approach also has an important limit. Rejecting mathematical precision must not become a reason to overlook substantial, unexplained disparities. The same opinion recognises that culpability varies and that relevant personal circumstances require individual evaluation. Broad comparison remains a reasoned exercise, not an exemption from explaining different outcomes.

Similarly, caution about distinctions between participants does not erase jury deletions. Here, the court’s reasoning was that the surviving verdict still established substantial responsibility—not that deleted allegations could be treated as proved.

The principal prospective significance lies in the three-judge endorsement of Douglas v HM Advocate and the express explanation that comparative justice should not perpetuate materially erroneous sentences. However, because this opinion was superseded, those propositions cannot safely be attributed to the operative decision without checking [2026] HCJAC 50.

9. Conclusion

The supplied opinion treats comparative justice as an aspect of fair and proportionate sentencing, not a demand for numerical equality. Meaningful comparison requires attention to the offence, culpability, personal circumstances, discounts and aggregation method. The ultimate question is whether the appellant’s final sentence was excessive.

It records refusal of both appeals, but its express supersession is decisive for legal reliance: the authoritative reasoning and operative outcome must be checked against [2026] HCJAC 50.