Introduction

This commentary examines the recent judgment in the Crown appeal against Sentence by His Majesty’s Advocate in the case EK ([2025] HCJAC 10) delivered by the Scottish High Court of Justiciary on 6 February 2025. At its heart, the case reconsiders how minimum custodial terms for violent offences should be applied, particularly under the statutory provisions of the Criminal Procedure (Scotland) Act 1995, section 210A(1)(a)(ii).

The appeal focused on two grounds: firstly, that the initial sentence was “incompetent” because it had failed to meet the statutory minimum requirements for violent crimes; secondly, that the sentence was unduly lenient in light of the serious consequences of the offences committed. The claimant (the Crown) argued that the sentencing judge’s decision did not adequately reflect the statutory minimum for violent offences and remained insufficient given the risk the offender posed to the public.

The respondent, a young offender who committed the crimes at the age of 15, was involved in two distinct charges: one, an assault using a knife, and two, culpable homicide resulting from a single punch. The juxtaposition of the offender's youth and the gravity of his offences created a challenging sentencing dilemma – balancing principles of rehabilitation with the need for public protection.

Summary of the Judgment

The court found that the sentencing judge’s imposition of an extended sentence comprising 6 years and 4 months, with a custodial term of 3 years and 4 months, was legally flawed due to the statutory requirement that the minimum custodial term for a violent offence must be at least 4 years. Consequently, the court sustained the Crown’s appeal on the ground of incompetent sentencing.

After a detailed review of the facts and the legal context, the court quashed the original sentence and imposed a new sentence. The revised sentence was an extended total of 7 years, specifying a custodial term of 4 years along with an extension period of 3 years, backdated to 15 April 2024. The judgment carefully balanced the severity of the crimes committed – particularly the fatal consequences of the single punch in charge 2 – with considerations arising from the offender’s age and prospects for rehabilitation.

Analysis

Precedents Cited

The judgment makes extensive reference to earlier decisions which provide context and support for the court’s reasoning:

• HM Advocate v Reid: This case was cited in relation to the cumulative nature of multiple offences and the aggravating circumstances surrounding violent crimes. Reid illustrated that group involvement and escalated violence could justify a harsher sentence.
• NRL v HM Advocate [2025] HCJAC 4: The court noted the differences between the present case and NRL, particularly the absence of a sustained, multi-faceted assault as seen in NRL. This distinction was crucial in delineating the scope of the aggravating factors relevant to the sentencing.
• HM Advocate v Bell 1995 SCCR 244: This precedent assisted in outlining the range of acceptable sentences for culpable homicide offences and reinforced the interpretation that the minimum custodial term for violent offence scenarios should not be compromised.
• Other landmark cases, including Kane v HM Advocate (2003 SCCR 749) and Hibbard v HM Advocate (2011 JC 149), were mentioned as they reflect a 20-year jurisprudence on ensuring that youthful offenders are treated with due consideration to their age while protecting public safety.

Legal Reasoning

The legal reasoning in the judgment is anchored on statutory interpretation and the necessity for consistency in sentencing for violent offences. The court focused on the following points:

• Statutory Requirement: Under section 210A(1)(a)(ii) of the Criminal Procedure (Scotland) Act 1995, a minimum custodial term of 4 years for violent offences is mandated. The court underscored that any sentence falling short of this requirement is legally “incompetent,” regardless of mitigation factors such as an early plea.
• Age-Related Considerations: Although the respondent was only 15 (and later 16) at the time of sentencing, the judgment reaffirms that while youth is a mitigating factor that suggests potential for rehabilitation, it does not permit deviation from statutory minimums designed to protect the public from violent behaviours.
• Totality Principle: The judge examined the aggregate effect of the sentence imposed for the two charges. The Court maintained that ensuring proportionality and fairness in sentencing is best achieved by looking at the totality of the offences and their combined impact.
• Risk Assessment: The respondent’s background, including previous minor offences, evidence of poor impulse control, and the significant harm caused (culminating in a death), contributed to the necessity of a stricter sentence. The court’s imposition of an extended sentence was meant to address both punishment and public protection.

Impact of the Judgment

This judgment is significant as it reinforces a stringent application of the statutory minimum custodial term for violent offences. Its implications include:

• Clarification of Sentencing Standards: Future cases involving violent offences, even where the offender is a minor, will need to comply with the statutory floor of 4 years of detention, thereby limiting judicial discretion where statutory requirements are clear.
• Balancing Rehabilitation and Public Safety: While the decision acknowledges the need for rehabilitative measures for young offenders, it simultaneously upholds public safety by insisting that sentences for violent crimes reflect the seriousness of the harm caused.
• Precedential Value: The ruling will serve as a precedent, guiding lower courts in addressing similar challenges in sentencing where the statutory minimum is at odds with considerations of youth and reformation. This could potentially lead to more consistent application of sentencing principles across the Scottish legal system.

Complex Concepts Simplified

The judgment employs several legal terminologies that are clarified below for better understanding:

• Extended Sentence: This refers to a sentence that goes beyond the base period of incarceration to include additional periods during which the offender’s release is conditional. The extension period is intended to secure the community against future harm.
• Custodial Term: The actual period during which the offender is detained in custody. In this case, the minimum statutory requirement is a custodial term of 4 years for violent offences.
• In Cumulo: A principle where sentences for multiple offences are combined, ensuring that the total sentence reflects the cumulative harm and culpability associated with all charges.
• Incompetent Sentence: A legal determination where the imposed sentence fails to conform to the statutory minimum requirements, thereby rendering it legally unacceptable.
• Backdating: The practice of setting the starting point of a sentence from an earlier date—in this case, 15 April 2024—even though the sentencing decision was rendered at a later date.

Conclusion

The judgment in EK ([2025] HCJAC 10) signifies an important departure in sentencing practice by affirming the necessity for a minimum custodial term of 4 years in violent offence cases, as mandated by section 210A(1)(a)(ii) of the Criminal Procedure (Scotland) Act 1995. Despite the mitigating factors associated with the offender’s young age and his demonstrable remorse and potential for rehabilitation, the seriousness of the offences—most notably culpable homicide—required an adjusted sentence that met both statutory demands and the community’s need for protection.

This decision not only clarifies the proper application of sentencing principles in violent cases but also sets a clear precedent for the balancing act between rehabilitation of young offenders and the imperative of public safety. By quashing an incompetent sentence and enforcing a revised one, the court underscores that statutory requirements are paramount, even while exercising judicial discretion in light of individual circumstances.

In summary, the key takeaways include the reaffirmation of a minimum custodial term for violent offences, the careful integration of aggravating and mitigating factors, and the enduring influence of past precedents in safeguarding the legal process. This judgment will undoubtedly guide future case law and contribute to a more consistent application of sentencing guidelines in Scotland.