Introduction

In His Majesty’s Advocate v Ian Sweeney [2025] HCJAC 5, the Appeal Court (Lady Dorrian, the Lord Justice Clerk, with Lord Matthews and Lord Beckett) allowed a Crown appeal against sentence, holding that the original sentence was unduly lenient. The case concerns a conviction under section 28 of the Criminal Justice and Licensing (Scotland) Act 2010 for involvement in serious and organised crime over a six-week period in 2020, conducted through the EncroChat encrypted platform.

The respondent’s activities spanned multiple modalities of organised criminality: procuring and supplying significant quantities of controlled drugs (including sourcing at least 5kg of cocaine priced at £40,000–£43,000 per kilogram), locating and tracing third parties (including family members), advising on clandestine “hides” for UK-wide transport of drugs and money (up to 250kg of cannabis in one example), and offering anti-surveillance “bug-sweep” services across the UK and Europe, complete with a published “price list.” He knew these services were for organised crime and had the potential to cause significant harm.

Crucially, the respondent was already serving a five-year sentence for an analogous section 28 conviction (conduct in 2016) at the time of sentencing for the 2020 conduct. The sentencing judge imposed two years’ imprisonment to run consecutively to the existing five-year term. The Crown appealed on the ground of undue leniency, arguing that the judge had misapplied the totality principle, under-assessed seriousness, and over-discounted for a late section 76 plea.

The key issues were:

• How to apply the totality principle when sentencing an offender already serving a sentence for earlier, distinct offending;
• Whether and how the dictum in Ibbotson v HMA 2022 SCCR 265 about “duplication of sentencing purposes” should influence sentencing where offences are separate and years apart;
• The proper approach to discounts for a plea tendered by section 76, particularly in a case with mainly police witnesses and significant preparatory work already completed;
• The appropriate starting point and aggravating features for section 28 “involvement in serious organised crime” where the conduct is sophisticated, commercial, and multi-faceted.

Summary of the Judgment

The Appeal Court held that the sentencing judge erred by effectively treating the 2020 offending as if it should be calibrated within a hypothetical global sentence alongside the earlier (2016) conviction. The Court clarified that:

• There was no basis to construct a notional combined sentence for temporally distinct offending committed more than three years apart;
• The reference in Ibbotson to avoiding duplication of sentencing purposes is “superfluous,” “unhelpful and confusing,” and should be disregarded;
• The correct methodology is sequential:
  1. Determine the appropriate sentence for the current offending by reference to culpability and harm;
  2. Apply any appropriate plea discount based on its utilitarian value;
  3. Address consecutivity and apply the totality principle at the end to avoid an overall disproportionate cumulo term.

Applying that framework, the Court:

• Assessed an appropriate headline sentence of 8 years for the 2020 offending alone, reflecting its sophistication, organisation, commerciality, and the significant risk and harm;
• Limited the section 76 plea discount to one-sixth, given the late timing and the predominance of police witnesses (reducing to 6 years and 8 months);
• Applied totality to moderate the cumulo effect of a consecutive term, ultimately substituting a consecutive sentence of 5 years and 6 months (quashing the original two-year term).

Analysis

Precedents Cited and Their Influence

• Ibbotson v HMA 2022 SCCR 265
  The sentencing judge relied on a passage in Ibbotson suggesting that “the interests of justice do not require both sentences to duplicate the same purposes of punishment, deterrence, protection of the public and rehabilitation.” The Appeal Court explained that, read in context, Ibbotson was effectively an application of the totality principle in circumstances of two separate rapes sentenced consecutively. Crucially, Lady Dorrian stated that the “duplication” phrase is “superfluous,” “unhelpful and confusing,” and should be disregarded. The judgment re-centres the analysis on the Scottish Sentencing Council’s guidelines and the orthodox totality principle.
• Simion v HM Advocate 2023 SLT 647
  Cited by the Crown to show Ibbotson’s effect in practice. The Appeal Court’s approach in Sweeney clarifies that Ibbotson should not be read as licensing a generalised “avoid duplication of purposes” exercise that blurs distinct instances of offending; rather, courts must sentence each case on its own facts and then apply totality to the cumulo effect.
• Geddes v HM Advocate 2015 SCCR 230 (para 21)
  Supports the principle that a section 76 plea does not automatically attract a one-third discount. The discount depends on the utilitarian value of the plea. The Court relied on this to limit the discount to one-sixth.
• Gemmell v HM Advocate 2012 JC 223; 2012 SCCR 176 (para [46])
  Establishes that discounts reflect the utilitarian value of an early plea. Where the proof would largely depend on police witnesses, an “early plea” may merit, at most, a token discount. Sweeney applies this logic to constrain the discount because the plea was late and most witnesses were police officers.
• Graham v HM Advocate 2019 SCCR 19 (para [57])
  Confirms that the court must consider both the existing sentences and the cumulo effect of consecutive sentences. Sweeney follows this by applying totality only after setting the appropriate sentence for the current offending and applying any plea discount.
• Scottish Sentencing Council Guidelines
  The Court emphasised the Guideline on the Sentencing Process (effective 22 September 2021), including the totality principle (paras 29–34), and the Guideline on Principles and Purposes of Sentencing—particularly the core requirement that sentences be “fair and proportionate.” These guidelines supply the primary framework, rather than the stray phrasing from Ibbotson.

Legal Reasoning

The Court’s reasoning unfolds in a clear, stepwise manner that reaffirms orthodox sentencing methodology:

1. Assess seriousness of the current offending (culpability and harm).
   The Court highlighted the “sophistication, extent and severity” of the 2020 conduct, noting:
   • Use of EncroChat and encrypted devices;
   • Multi-modal facilitation of organised criminality: drug sourcing and supply (including at least 5kg of cocaine), intelligence-gathering and unlawful tracking of individuals and family members, concealment methods (“hides”) for large-scale drugs/money transport, and anti-surveillance “bug-sweeps” with a published pricing structure;
   • Commercial, profit-driven operation over several weeks with significant risk of harm to targeted individuals and the public;
   • Prior analogous convictions—including a 2016 section 28 offence and a 2010 High Court conviction for being concerned in the supply of a Class A drug—aggravating culpability.
   On that basis, a starting point of 8 years was “appropriate” for the 2020 offending alone.
2. Apply plea discount based on utilitarian value, not a fixed fraction.
   Although the plea was by section 76, the Court reiterated that no automatic one-third discount arises (Geddes; Gemmell). The plea here came “very late,” a significant amount of preparatory work had been undertaken, and the Crown case would largely rely on police witnesses. The Court confined the discount to one-sixth, reducing 8 years to 6 years and 8 months.
3. Address consecutivity and the totality principle at the end.
   The offender was already serving 5 years. The Court considered the cumulo impact of adding 6 years and 8 months consecutively. Applying totality to achieve fairness and proportionality, the Court attenuated the consecutive term to 5 years and 6 months. This approach avoids distorting the headline sentence by artificially netting off the earlier sentence at the outset.

The Court expressly rejected the trial judge’s methodology of hypothesising a combined sentence for both the 2016 and 2020 offending and then subtracting the existing sentence to derive the new headline. The Court described there being “absolutely no basis” for such an approach where the offending was distinct and separated by years. The correct approach is to sentence the instant offence on its own merits and then moderate for totality only at the end.

Impact and Significance

This decision is likely to have immediate and lasting effects on Scottish sentencing practice, particularly in organised crime contexts and cases involving encrypted communications:

• Methodological clarity. Sentencers must:
  1. Set the sentence for the current offence(s) by assessing culpability and harm;
  2. Apply an evidence-based plea discount reflecting true utilitarian value;
  3. Only then consider consecutivity and totality to ensure the overall cumulo sentence is fair and proportionate.
  Attempts to “globalise” separate offending by hypothesising a combined sentence at the outset are improper unless justified by the facts as a single course of conduct.
• Ibbotson clarified. The judgment cautions against reliance on the “duplication of sentencing purposes” phrase in Ibbotson, which the Court labels “superfluous” and to be “disregarded.” This recalibration centres the Scottish Sentencing Council’s guidelines as the governing framework for totality.
• Plea discounts under section 76. A one-third discount is not automatic. Discounts will be calibrated to the real procedural savings and timing. Late pleas in cases with mostly police witnesses may attract only a limited discount (here, one-sixth).
• Sentencing benchmarks for section 28 organised crime offending. For sophisticated, commercial, multi-faceted facilitation using encryption and anti-surveillance, the Court indicated an 8-year starting point was appropriate before discount and totality. This provides a clear reference point for future cases involving EncroChat or comparable technologies and services.
• Undue leniency appeals. The decision signals a willingness to recalibrate sentences upward where first-instance courts undervalue seriousness or misapply totality/discount methodology, especially in serious organised crime contexts.

Complex Concepts Simplified

• Section 28 (Criminal Justice and Licensing (Scotland) Act 2010): Makes it an offence to do something that a person knows or suspects will enable or further serious organised crime. Liability does not depend upon completing a substantive offence; facilitating conduct suffices.
• EncroChat: An encrypted communications platform widely used by organised criminals. Law enforcement infiltration in 2020 generated significant evidential material against users.
• Totality principle: When imposing multiple sentences, or sentencing someone already serving a sentence, the court must ensure that the overall “cumulo” punishment is fair and proportionate to the totality of the offending and the offender’s circumstances. It does not justify artificially reducing the headline sentence for the new offence; rather, attenuate at the end if needed when making sentences consecutive.
• Consecutive vs concurrent sentences: Consecutive sentences run back-to-back; concurrent sentences run at the same time. Totality often arises when deciding whether to order consecutivity and, if so, whether to moderate the length to avoid an excessive cumulo result.
• Section 76 plea: A procedure allowing an accused to plead guilty on indictment without a full trial. Any discount is based on the plea’s utilitarian value—how much time and resource it saves—rather than a fixed percentage.
• Utilitarian value of a plea: The practical benefit to the justice system of an early guilty plea (e.g., saving court time, sparing witnesses). A late plea with mostly police witnesses may yield a smaller discount.
• Undue leniency appeal: The Crown may appeal a sentence that is unduly lenient—i.e., falling outside the range of sentences which a judge, applying their mind to all relevant factors, could reasonably have considered appropriate.
• Analogous convictions: Prior convictions for similar or related conduct aggravate seriousness and justify higher sentences, particularly in organised crime contexts indicating persistence and recidivism.

Conclusion

HMA v Sweeney establishes important, practical guidance on sentencing where an offender is already serving a custodial term. The Court decisively reorients practice away from the problematic “duplication of sentencing purposes” phrasing in Ibbotson, reaffirming the centrality of the Scottish Sentencing Council’s totality guidance. The prescribed sequence is clear: set the appropriate sentence for the current offence based on culpability and harm; apply a plea discount strictly according to utilitarian value; then address consecutivity and totality to ensure the overall cumulo sentence is fair and proportionate.

On the facts, the Court underscored the gravity of sophisticated, commercial facilitation of organised crime via encrypted platforms and anti-surveillance services. It identified an 8-year starting point, curtailed the discount to one-sixth due to late plea and police witnesses, and imposed 5 years and 6 months consecutively after totality adjustment—quashing the markedly lower two-year sentence.

The key takeaways are:

• Do not hypothesise global sentences for temporally distinct offences;
• Disregard Ibbotson’s “duplication” phrase; rely on SSC totality guidelines;
• Calibrate section 76 discounts to actual procedural savings; no automatic one-third;
• Recognise encrypted, multi-modal organised crime facilitation as serious, aggravating conduct warranting substantial custodial terms.

Sweeney will likely become a leading authority for the methodology of applying totality and plea discounts in Scotland, particularly in complex organised crime cases leveraging encrypted communications and anti-surveillance techniques.