Keel v HM Advocate [2025] HCJAC 47: Early Intimation Drives Plea Discounts in Murder; Prolonged Failure to Seek Help Is a Material Aggravator

Court: Appeal Court, High Court of Justiciary (Scotland)

Neutral Citation: [2025] HCJAC 47

Bench: Lord Justice Clerk (Lord Beckett), Lord Matthews, Lord Armstrong

Date: 22 October 2025

Introduction

This appeal against sentence concerns the punishment part of a mandatory life sentence imposed on Mark Keel following his guilty plea to the murder of his partner, Maxine Clark. At first instance, the sentencing judge set a headline punishment part of 24 years, explicitly including two years for the statutory domestic abuse aggravation under section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, and then applied a two‑year discount (one‑twelfth) for the plea, yielding a punishment part of 22 years.

On appeal, Keel contended that the punishment part was excessive by reference to recent comparators for domestic murders (notably Kennedy and Rizzo) and that the sentence failed to give adequate credit for the utilitarian value of his guilty plea tendered at preliminary hearing. The Crown resisted, and the court (per the Lord Justice Clerk) refused the appeal.

The decision is significant because it:

Reaffirms that comparators such as Kennedy and Rizzo supply only broad guidance; the ultimate selection of a punishment part remains intensely fact‑sensitive.
Confirms that in murder cases the notional maximum plea discount remains about one‑sixth and can be markedly lower where intimation is not made at the earliest stage.
Elevates “prolonged failure to seek, and active dissuasion from, medical assistance” as a materially aggravating feature in domestic homicide sentencing.
Clarifies that any reliance on Spence (suggesting a quarter discount at preliminary hearing) does not apply to murder and, in any event, plea discounts are discretionary and driven by utilitarian value and timing.

Summary of the Judgment

Outcome: Appeal refused; the 22‑year punishment part stands.
Headline selection: A 24‑year headline (including a two‑year element for the section 1 domestic abuse aggravation) was within range given the extreme, sustained violence, the appellant’s significant domestic abuse record (including prior imprisonment), and the aggravating context that he was subject to court orders when he murdered his partner.
Comparators: Kennedy (23 years) and Rizzo (22 years) provide only broad indications. The appellant’s worse record and the aggravating failure to seek help/dissuasion of the deceased’s child justified a sentence at least as severe despite differences such as weapon use in Kennedy.
Plea discount: The one‑twelfth reduction (two years from 24) for a plea intimated approximately nine and a half months post first appearance was a proper exercise of discretion. The court reiterated that the maximum in murder is about one‑sixth and that utilitarian value is highest at or shortly after first appearance.
Method vs outcome: Even if the pathway to sentence is debatable, it is the final sentence that must be shown to be a miscarriage of justice (Barnes). No such showing was made.

Detailed Analysis

Precedents Cited and Their Influence

Kennedy v HM Advocate [2024] HCJAC 50; 2025 JC 156. The appellant in Kennedy murdered his long‑term partner with a knife in a frenzied attack in the presence of their 17‑year‑old daughter. The punishment part of 25 years was reduced on appeal to 23 years. In Keel, the sentencing judge referenced Kennedy as a yardstick but was not bound to align the headline exactly. The appeal court endorsed this approach, stressing that weapon use is not a trump card where overall brutality, persistence, and aggravating features in Keel (including active obstruction of medical help and a worse record) support a comparable or higher headline.

Rizzo v HM Advocate [2020] HCJAC 40; 2020 SCCR 397. A punishment part of 22 years for a brutal murder involving sustained blunt force and multiple stab wounds was described as severe but not excessive. Keel distinguishes the appellant’s markedly poorer record and his aggravating conduct post‑assault (suppressing aid and misleading about an “allergic reaction”). These factors warranted a sentence at least as severe, and a higher headline was rationally open to the judge.

Barnes v HM Advocate [2024] HCJAC 23; 2024 JC 364. The court reiterated the principle that, on a sentence appeal, what matters is the final sentence. Even if the methodology is imperfect, it is not the process but the result that must amount to a miscarriage of justice. This undercut any attempt to re‑engineer the calculation in Keel in the absence of an excessive outcome.

Gemmell v HM Advocate [2011] HCJAC 129; 2012 JC 223. The Full Bench established that plea discounts are discretionary, not a matter of entitlement, and that timing and utilitarian value are the key drivers. Keel applies and endorses this principle, emphasising early intimation as decisive.

Geddes v HM Advocate [2015] HCJAC 43; 2015 SCCR 230. For a plea intimated three months after first appearance, a one‑quarter reduction (not one‑third) was appropriate. Keel deploys Geddes to demonstrate that delays reduce utilitarian value, and discounts scale down accordingly—even more so in murder.

HM Advocate v McMahon [2025] HCJAC 34; 2025 SCCR 344. Endorses Gemmell and Geddes, restating that time is not on an accused’s side regarding discounts; the highest utilitarian value is achieved by the earliest possible intimation. Keel draws explicitly on this message and reiterates it for practitioners.

HM Advocate v Boyle [2009] HCJAC 89; 2010 JC 66. The Full Bench indicated that the notional maximum discount in murder is about one‑sixth and can be reduced to nil in certain circumstances. Keel applies this ceiling and shows it will rarely be approached where intimation is not very early.

Murray v HM Advocate [2013] HCJAC 3; 2013 SCCR 88. Confirms the primacy of timing and utilitarian value; illustrates that even where there is a reduction, it need not approach maxima if the plea is not truly early or of limited utility. Keel aligns with this approach.

Spence v HM Advocate [2007] HCJAC 64; 2008 JC 174. The court’s obiter suggestion that, in non‑murder cases, a plea at preliminary hearing may attract around a quarter reduction is not a universal rule. Keel underlines that this does not translate to murder and, anyway, discounts remain discretionary and fact‑sensitive.

Statutes: The court referenced section 196(1)(a) of the Criminal Procedure (Scotland) Act 1995 (requiring the sentencing court to have regard to when an intention to plead guilty was indicated), and acknowledged the section 1 domestic abuse aggravation under the 2016 Act, which the sentencing judge transparently quantified within the headline.

Legal Reasoning

1) Calibrating the headline punishment part

The appeal court approached the headline punishment part on first principles, using comparators for guidance but not as a tariff. The following features justified a 24‑year headline:

Extreme and sustained violence, evidenced by 51 discrete injuries, multiple fractures including to the jaw (consistent with stamping), rib fractures forming a flail segment, and extensive internal injury culminating in an acute subdural haematoma.
The presence and involvement of the deceased’s 13‑year‑old son in the aftermath, combined with the appellant’s dissuasion of the child from seeking help.
A prolonged failure to summon medical assistance; active misrepresentation to third parties (e.g., the “allergic reaction” narrative) that delayed intervention.
A serious domestic abuse history, including prior imprisonments and multiple non‑harassment orders, and the fact that he was on a community payback order and subject to a restriction of liberty order when he committed the murder.
A proven statutory domestic abuse aggravation, transparently expressed as a two‑year component within the headline.

The court drew a principled distinction from Kennedy and Rizzo by focusing on the overall culpability landscape rather than any singular feature such as weapon use. It expressly treated “prolonged failure to seek medical help” and “dissuasion of a child witness from obtaining aid” as materially aggravating in a way not present in Kennedy or Rizzo.

2) Comparators as broad indicators, not determinative anchors

The appellant’s attempt to argue that Kennedy and Rizzo capped the permissible headline proved unavailing. The court reiterated that such authorities indicate a range, not a fixed tariff. Differences in offender record, aggravating conduct after the assault, and the victim’s circumstances can justify divergence, even where some facts (e.g., the use of a knife in Kennedy) appear facially graver. This approach discourages mechanical sentence matching and preserves judicial flexibility to respond to the “whole facts.”

3) Discount for plea: timing, utilitarian value, and the murder ceiling

On the plea discount, the court reaffirmed the Full Bench authorities:

Discretionary, not an entitlement: Per Gemmell, any reduction reflects a value judgment about utility, not a fixed right.
Timing is paramount: Utilitarian value is highest “at or shortly after first appearance” (McMahon). Time is not on the accused’s side (Gemmell, McMahon).
Murder ceiling: The notional maximum is about one‑sixth and may be nil in some circumstances (Boyle).

Keel’s plea was intimated nine and a half months post first appearance and then tendered 10 months after. The court rejected the notion that a plea at preliminary hearing carries a default “one‑eighth” in murder or a “quarter” as per Spence (which was both obiter and not about murder). The one‑twelfth reduction, from a 24‑year headline to 22 years, was within the judge’s discretion, consistent with the relatively late intimation and the need to preserve sentencing differentiation that rewards truly early pleas.

The court also addressed the practical defence concern that the indictment’s evolution may make early intimation difficult. It answered by pointing to section 196(1)(a) of the 1995 Act: even if the Crown will not accept an early plea, the court must still have regard to the earliest point at which the accused indicated a willingness to plead to the charge “finally before the court.” Defence representatives should therefore record and intimate an early willingness to plead to murder, even if discussions continue around other charges.

4) Method vs outcome in sentence appeals

Finally, and critically for appellate strategy, the court reminded that even if an appellant can identify arguable flaws in the “route” to sentence, that is not enough: only the outcome matters (Barnes). The question is whether the sentence, having regard to all relevant considerations including any plea discount, is excessive. It was not.

Impact and Future Significance

Domestic homicide calibration: This case places a 24‑year headline (22 years after a modest discount) firmly within the range for exceptionally violent domestic murders, especially where the offender has a heavy domestic abuse record, is under court orders, and engages in aggravated post‑assault conduct such as suppressing medical aid.
Material aggravator clarified: The opinion explicitly treats “prolonged failure to seek assistance and dissuading others from obtaining help” as a material aggravation that can move sentences upward relative to other domestic murder comparators.
Plea discount practice: Practitioners should expect small discounts in murder unless an unequivocal intention to plead is intimated at or soon after first appearance. Waiting for indictment finalisation is unlikely to justify delay; early intimation will still be credited under section 196(1)(a).
Spence caveat reinforced: Any lingering reliance on the “quarter at preliminary hearing” language from Spence is unsafe in murder cases and, even outside murder, remains subject to a fact‑driven, discretionary analysis.
Transparency in statutory aggravations: The sentencing judge’s explicit two‑year allocation for the section 1 domestic abuse aggravation (which went unchallenged) exemplifies good sentencing practice in articulating the aggravation’s impact.
High threshold on sentence appeal: The court reaffirms the demanding Barnes threshold: debate about sentencing “methodology” will not suffice where the ultimate sentence is defensible on the facts and principles.

Complex Concepts Simplified

Punishment part: In Scotland, murder attracts a mandatory life sentence. The “punishment part” is the minimum period the offender must serve in custody before becoming eligible to apply to the Parole Board for release. It reflects retribution and deterrence and excludes considerations of public protection after that minimum term.
Headline sentence: The notional sentence the judge would impose before applying any discount for a guilty plea. It allows the court to transparently show the effect of the plea.
Discount for plea (utilitarian discount): A sentence reduction to reflect the practical benefit of a guilty plea (saving court time and resources, sparing witnesses). The extent is discretionary and depends heavily on how early the plea is intimated.
Utilitarian value: The concrete benefit to the justice system and witnesses resulting from a plea. It is highest when the plea is indicated at or shortly after first appearance and diminishes as preparation and disclosure progress.
Statutory aggravation (domestic abuse): A formal aggravation attached to an offence (here, under section 1 of the 2016 Act) that, when proved, requires the court to take it into account in sentencing. Courts increasingly express its quantified impact for transparency.
Non‑harassment order (NHO): A court order prohibiting contact or approaches to specified persons, often imposed in domestic abuse contexts. Breach and offending in breach elevate culpability.
Community Payback Order (CPO) and Restriction of Liberty Order (RLO): Community‑based sentences involving supervision, unpaid work, curfews, and electronic monitoring. Offending while subject to these orders aggravates sentence.
Preliminary hearing (solemn procedure): A procedural hearing in the High Court for managing the case. It is not a “deadline” for discount; the earlier the plea is indicated, the better the potential discount.

Key Quantitative Markers from Keel

Headline punishment part: 24 years (including 2 years for the section 1 domestic abuse aggravation).
Discount awarded: 2 years (approximately one‑twelfth) for a plea intimated nine and a half months after first appearance.
Final punishment part: 22 years.

Practice Pointers for Defence and Prosecution

Defence: If a case is likely to resolve to murder, record and intimate as early as possible the client’s willingness to plead to the charge “finally before the court,” even while negotiating other charges. Preserve the benefit under section 196(1)(a).
Prosecution: Maintain clear documentation of when an unequivocal plea is first indicated to assist the court’s section 196 analysis and ensure transparent discount decisions.
Both sides: When citing comparators (Kennedy, Rizzo), focus on the whole matrix: offender’s record, presence of children, post‑assault conduct (especially suppression of aid), court order status, and statutory aggravations.
Sentencers: Continue to state, where practicable, the quantified contribution of statutory aggravations within the headline and the quantum of the plea discount to promote transparency and appellate review.

Conclusion

Keel v HM Advocate is an important restatement and refinement of Scottish sentencing principles in domestic homicide. First, it underscores that comparator cases illuminate but do not bind—differences in offender record and aggravating features (notably suppressing medical aid and manipulating a child witness) justify calibration within or above the ranges suggested by recent domestic homicide authorities. Second, it consolidates the modern law of plea discounts: timing and utilitarian value dominate, there is no entitlement to a particular fraction, and the murder ceiling of about one‑sixth will seldom be approached where intimation is not truly early. Third, the court reiterates a stringent standard for sentence appeals: it is the outcome, not the path, that matters.

Practically, the case will guide sentencers in treating “prolonged failure to obtain or allowing others to obtain medical assistance” as a material aggravator in domestic murders; it also provides a clear signal to practitioners that early, unequivocal intimation of a plea—even amid indictment uncertainty—remains the surest route to any meaningful discount. The decision therefore strengthens consistency, transparency, and principled flexibility in the sentencing of the most serious domestic violence cases in Scotland.