Gallagher: Post‑Injury Complications Count as “Harm”, Attacks on Public Officials Aggravate, and Late s.76 Pleas Attract Reduced Discounts — A New Sentencing Benchmark for Life‑Endangering Knife Assaults

Introduction

This commentary examines the Scottish High Court of Justiciary’s decision in His Majesty’s Advocate v Eamonn Gallagher ([2025] HCJAC 38), a Crown appeal against sentence. The respondent pled guilty by way of a section 76 Criminal Procedure (Scotland) Act 1995 procedure to an assault involving a single stab wound with a knife, causing severe injury and danger to life, perpetrated against a traffic warden on Gorgie Road, Edinburgh. The sentencing sheriff imposed 16 months’ imprisonment (after a one‑third discount from a two‑year headline). The Crown appealed on the basis that the sentence was unduly lenient and that the discount was excessive.

The Appeal Court (Lord Justice General Lord Pentland, with Lord Doherty and Lord Clark) allowed the appeal, quashed the sentence, and substituted a sentence of four years and six months’ imprisonment (headline six years, with a 25% discount), backdated to 22 April 2025. In doing so, the Court:

Reaffirmed and applied the undue leniency test in HM Advocate v Bell (1995 SCCR 245);
Clarified that post‑operative complications demonstrably linked to the assault (here, serious infection and readmission) form part of the “harm” to be weighed in sentencing;
Emphasised aggravation where the victim is a public official performing duties in a public place; and
Signalled that late section 76 pleas do not normally justify the maximum discount; here, 25% was appropriate rather than one‑third.

Summary of the Judgment

The Court held that the sheriff’s sentence fell outside the range of sentences which could reasonably be considered appropriate, meeting the Bell threshold for undue leniency (para [44]). The sheriff had underestimated both culpability and harm:

Culpability: use of a large, potentially lethal knife; attack in a public place on a public official; a “cooling‑off” interval indicating the conduct was not wholly impulsive; and flight from the scene without rendering assistance (para [45]).
Harm: the serious infection, readmission, and further interventions were directly caused by the assault and should have been treated as part of the harm (para [46]).

Although personal mitigation existed (limited record, mental health challenges, remorse, family responsibilities), these factors were “heavily outweighed” by culpability and harm (para [47]). The one‑third discount was excessive given the late stage at which an acceptable plea was tendered (para [48]).

Benchmarking against other cases, the Court found this case to be less serious than Brough (serious criminal record, liver injury, sepsis, permanent disfigurement) but more serious than Stoddard (small knife, minor injury, no hospital treatment) (para [49]). The Court considered that the proper disposal should be “close to the maximum sentence which the sheriff could impose” and set a headline of six years with a 25% discount, yielding a net sentence of four years and six months (para [50]).

Key Holdings at a Glance

Undue leniency: sentence must fall outside the range reasonably open to the sentencer (Bell test) (para [43]).
Harm assessment: clinically significant post‑operative complications (infection and readmission) evidenced in the narrative/victim statement are part of the harm caused by the assault (para [46]).
Aggravation: attacking a public official engaged in public duties, in a public place, with a large knife, after a “cooling‑off” interval, and fleeing without help substantially aggravates culpability (para [45]).
Mitigation: personal mitigation (limited record, remorse, financial/family pressures) cannot outweigh high culpability and grave harm (para [47]).
Discounts: a late section 76 plea does not merit a one‑third reduction; 25% was appropriate on the facts (para [48]).
Benchmarking: headline six years for a single life‑endangering stab wound with public‑official aggravation, positioned between Stoddard (c. two years) and Brough (eight years) (paras [49]–[50]).

Detailed Analysis

1) Precedents Cited and Their Influence

HM Advocate v Bell (1995 SCCR 245) (para [43]):
The Court restated that Crown intervention requires more than mere disagreement with first‑instance sentencing; the sentence must be “unduly lenient,” meaning it falls outside the reasonable range. The Court’s reasoning rigorously applied this threshold, identifying concrete errors in assessing culpability and harm and in the application of discount, thereby justifying appellate interference (para [44]).
Colin Brough v HM Advocate (unreported, 16 Feb 2021) (para [30]):
Used as an upper benchmark: a single stab wound resulting in a through‑and‑through liver injury, sepsis, 12‑day hospitalisation, permanent disfigurement, and a serious criminal record. Headline sentence of eight years upheld. The Court situated Gallagher as less serious than Brough because of the lesser record and differences in injury severity/aggravations, but still grave (para [49]).
Stewart Stoddard v HM Advocate (unreported, 28 Oct 2022) (para [31]):
Lower benchmark: single minor knife injury (two‑inch laceration), no hospital attendance, modest record, headline 24 months. Gallagher is “significantly more serious” (para [49]). This contrast helps calibrate the “ladder” of seriousness for knife assaults.
HM Advocate v EK [2025] HCJAC 10; Purvis v HM Advocate (unreported, 3 Jun 2025); NRL v HM Advocate [2025] HCJAC 4; HM Advocate v Sweeney [2025] HCJAC 5 (para [33]):
These recent authorities emphasise that while there is no rigid sliding scale for plea discounts, late pleas generally attract reduced discounts. The Court used this line to conclude the sheriff’s one‑third reduction was excessive (para [48]).
HM Advocate v William Budge [2025] HCJAC 27 [43] (para [40]):
Cited by the defence to caution against over‑reliance on comparisons. The Court acknowledged this but nevertheless found comparative benchmarking apt given the clear factual anchors in Brough and Stoddard.

2) The Court’s Legal Reasoning

The Court’s reasoning proceeds in three steps.

a) Applying the Bell Test: Why the Sheriff’s Sentence Was “Unduly Lenient”

Misassessment of culpability: The respondent’s conduct was aggravated by multiple, compounding features: use of a large knife (5–6 inch blade), a public place, the status of the victim as a public official enforcing parking restrictions, a “cooling‑off” interlude indicating the conduct was not spontaneous, and flight without assistance (para [45]). These factors together demanded a sentence much closer to the top of the sheriff court’s solemn sentencing range.
Misassessment of harm: The sheriff discounted the readmission and infection as a “secondary” issue. The Appeal Court held that on the narrative and victim statement, those consequences were a direct result of the stab wound and must be weighed as part of the harm (para [46]).
Overweighting personal mitigation: While the respondent’s background and remorse were accepted, the Court found they were “heavily outweighed” by culpability and harm (para [47]).

b) Treatment of Plea Discount

Although the plea proceeded under section 76, the Court stressed that the timing and utility of the plea are central. Here, a plea in acceptable terms was offered approximately 11 months after the petition appearance (para [48]). That chronology did not justify the maximum one‑third discount. The Court therefore fixed a 25% reduction, aligning with the approach in the recent appellate authorities cited by the Crown (para [33]).

c) Sentencing Calibration and Benchmarks

The Court explicitly placed Gallagher between Brough (eight‑year headline upheld) and Stoddard (24‑month headline) and concluded the case required a headline “close to the maximum sentence which the sheriff could impose” (para [50]). Fixing a headline at six years, with a 25% discount to four years and six months, the Court not only corrected the specific sentence but also provided guidance for similar knife‑assault fact patterns, particularly those involving public officials and demonstrable post‑operative harm (paras [49]–[50]).

3) Impact and Prospective Significance

Harm assessment in assault cases: Sentencers should treat medically substantiated complications (e.g., infections, readmissions, further interventions) as part of the harm where the narrative and victim material support causation. A failure to do so risks undue leniency.
Aggravation where the victim is a public official: Where a victim is performing a public service (such as parking enforcement) in a public place, this is a significant aggravating factor. The case underscores society’s expectation that public officials undertake duties free from violence.
“Cooling‑off” and partial premeditation: Leaving and then returning to continue or escalate violence negates claims of pure spontaneity and heightens culpability.
Late pleas and discounts: Section 76 pleas are not automatically entitled to one‑third discounts. Late tendering in acceptable terms typically attracts a materially lower percentage. This will influence plea‑timing strategies and sentencing submissions.
Benchmarking knife assaults: The judgment sketches a practical ladder: minor knife injury with minimal harm (~2‑year headline, Stoddard), through to single stab, life‑endangering harm with public‑official aggravation (~6‑year headline, Gallagher), up to more extreme harm/records (~8‑year headline, Brough).
Balancing mitigation: Personal mitigation—however compelling—will generally not outweigh high culpability and grave harm in public‑place knife assaults. Practitioners should calibrate expectations and submissions accordingly.

Complex Concepts Simplified

Unduly Lenient Sentence (Bell test): The appeal court will not increase a sentence simply because it would have chosen a higher one. It will intervene only if the original sentence falls outside the range of reasonable sentences open to the sentencer, given all relevant factors (para [43]).
Headline sentence vs discount: The “headline” is the sentence before any reduction for a guilty plea. The court then applies a percentage discount (reflecting the timing/utility of the plea) to reach the final sentence.
Section 76 plea: A procedure allowing an early guilty plea on indictment. Earlier, clear pleas that save court time and witness stress may attract higher discounts; later or qualified offers usually attract less.
Aggravating factors: Features of an offence that increase seriousness, such as using a weapon, targeting a public official, acting in a public place, engaging in conduct after a cooling‑off period, or fleeing without helping the victim.
Mitigating factors: Features that reduce moral culpability or suggest a lower risk of reoffending (e.g., limited record, remorse, mental health issues, family responsibilities). Personal mitigation does not excuse the offence; it informs proportionality.
Harm and causation in sentencing: The court assesses the totality of harm caused by an assault, including medical complications that are a direct consequence of the injury. Where the agreed narrative and victim statement support causation, those complications count.
Backdating a sentence: The court can order the sentence to commence from a specific earlier date, typically the date of initial sentencing, to properly reflect time already spent in custody or under sentence. Here, backdated to 22 April 2025 (para [50]).

Application to the Facts

The respondent stabbed a traffic warden with a knife of 5–6 inches, inflicting a penetrating abdominal wound that endangered life and required laparoscopic surgery. Post‑operative infection necessitated readmission, drainage, and extended treatment, with a marked psychological, occupational, and financial impact on the victim (paras [10]–[13]). Aggravations included: public place, public official victim, a return to the locus after an initial confrontation (negating “spur of the moment”), and flight without assistance (paras [7]–[8], [45]).

The sheriff’s approach was flawed in two principal respects: (1) the minimisation of harm by treating readmission/infection as “secondary” (para [21], corrected at para [46]); and (2) a one‑third discount despite the acceptance of guilt in suitable terms only after ~11 months (paras [48], [33]). Personal mitigation—while real—could not outweigh the seriousness of the culpability and harm (para [47]).

Practice Points for Sentencers and Practitioners

Ensure the factual basis for sentencing adheres to the agreed narrative and reliable evidence (e.g., the actual size and lethality of the weapon).
When medical complications follow an assault, assess whether the narrative and victim statement tie those complications to the injury; if so, they are part of the harm.
Identify and articulate aggravations comprehensively: public place, public‑official victim, cooling‑off intervals, non‑assistance post‑assault.
Calibrate plea discounts to timing and utility; late section 76 pleas will seldom justify the maximum one‑third.
Use comparative benchmarks carefully but candidly for proportionality: position the case along the spectrum of Stoddard → Gallagher → Brough.

Conclusion

Gallagher is a clear and structured reaffirmation of core sentencing principles and a practical guide to their application in knife assault cases. It establishes that:

Medically evidenced post‑injury complications belong squarely within the harm assessment;
Attacks on public officials performing duties in public places significantly aggravate culpability;
“Cooling‑off” behaviour and failure to assist the victim further worsen culpability; and
Late section 76 pleas usually warrant discounts below one‑third, with 25% an appropriate ceiling on comparable timings.

By positioning a single life‑endangering stab with public‑official aggravation at a six‑year headline (net four years and six months), the Court provides a robust benchmark for future cases. The decision will likely curb undue leniency where harm is under‑scored, ensure consistent treatment of late plea discounts, and reinforce protection for those serving the public. In the broader legal context, Gallagher harmonises proportionality, deterrence, public protection, and principled mercy, offering authoritative guidance to sheriffs and practitioners alike.