Introduction
In Crown Appeal against Sentence by His Majesty's Advocate against Kevin Smith
([2026] HCJAC 22, Appeal Court, High Court of Justiciary, 12 June 2026),
the Crown appealed a sentence for a grave assault on the basis that it was unduly lenient and that the
sentencing judge had erred in law by applying section 91 of the
Police, Public Order and Criminal Justice (Scotland) Act 2006 without the statutory precondition
of a written cooperation agreement.
The respondent pleaded guilty (mid-trial) to assault to severe injury, permanent disfigurement and danger of life,
aggravated by bail. The trial judge imposed 28 months’ imprisonment plus a
12-month Supervised Release Order, applying what he described as “broad brush” reductions for
(i) willingness to assist the prosecution of a co-accused and (ii) the guilty plea.
The appeal required the court to address: (a) the strict conditions for applying section 91; (b) how (if at all) a
mere offer of assistance can affect sentence at common law; (c) the proper approach to late guilty pleas; and
(d) whether the overall disposal fell outwith the reasonable sentencing range for a violent, bail-aggravated assault
committed in concert by an offender with a serious record.
Analysis
1) Precedents Cited
Undue leniency: HM Advocate v Bell [1995] SCCR 244
The court applied the classic undue leniency test: appellate intervention is justified only where the sentence falls
outside the range that a reasonable sentencer could impose, not merely because the appeal court would have
imposed more. The court reproduced Lord Justice General Hope’s guidance emphasising deference to the trial judge’s
advantages (particularly after trial) but confirming that increased sentences may be necessary for public protection
and general guidance.
The Crown relied on Gemmell for the proposition that discount is discretionary but not unfettered.
The Appeal Court’s reasoning aligns with Gemmell: when a plea is tendered very late, any reduction must be
tightly anchored to actual utilitarian benefit (court time saved, witnesses spared, finality achieved), and may be
minimal or none.
Assistance to the authorities (outside section 91): Cormack v HM Advocate [1996] SCCR 53 and O'Neill v HM Advocate [1999] JC 1
These authorities were used to explain the pre- and extra-statutory position: even where section 91 is not engaged,
cooperation can be a relevant circumstance in setting sentence. Crucially, the court drew a dividing line
between (i) genuine, demonstrated assistance and (ii) a bare, untested willingness to assist—especially where the
“assistance” may reduce to doing what the law would require anyway if the person is cited as a witness.
The judgment’s practical message is that informal cooperation may sometimes matter, but it does not attract
an automatic or express “discount” structure comparable to the guilty-plea regime, and may properly carry no weight
if it is speculative or illusory.
Comparative justice and roles in concert: Armstrong v HM Advocate [2021] HCJAC 34, 2021 JC 227 and Gardiner and Anderson v HM Advocate [2024] HCJAC 44, [2025 JC 114
The court reaffirmed the “comparative justice” principle: co-accused convicted of the same offence should ordinarily
receive the same sentence, but differences can properly arise due to role, record, and
personal circumstances. These cases supported the court’s acceptance that differing roles can matter, while
also underpinning its conclusion that, on these facts, the respondent’s role was not meaningfully peripheral.
2) Legal Reasoning
(a) Section 91: strict statutory gateway
The court treated the statutory language as determinative: section 91 is triggered only where there is a
written agreement with the prosecutor. It is not enough that (i) the defence offers assistance, (ii) the Crown
expresses an intention to take a statement, or (iii) the judge believes the Crown has “accepted” an offer.
Without the written agreement, section 91’s specific machinery—mandatory consideration of assistance and (where a lesser
sentence is imposed) open-court specification of the discount—cannot be invoked.
(b) “Assistance” at common law: why no weight here
The court accepted that, where section 91 does not apply, a judge may still consider cooperation as part of the overall
sentencing assessment. However, on these facts, the purported cooperation was of no sentencing value:
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It was untested because the co-accused later pleaded guilty, so there was no demonstration that the respondent
actually provided meaningful assistance.
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If the case had proceeded, the respondent would likely have been cited as a witness and would have had
no choice but to attend and tell the truth—so the “offer” did not represent a voluntary assumption of risk
or burden beyond ordinary legal obligation.
The court therefore held there was no basis for any reduction attributable to willingness to cooperate.
(c) Undue leniency: seriousness, concert, aggravation, and record
Although the co-accused inflicted the most serious knife wounds to the neck, the respondent attacked “more or less
simultaneously”, inflicting multiple penetrating wounds to the back and participating in the sustained violence.
The court emphasised that such conduct would intensify the complainer’s terror and impair self-defence.
The sentencing judge had placed weight on the knife attack being “unanticipated”, but the respondent pleaded guilty on a
narrative of concerted involvement in the knife use and associated violence (bottle and TV stand). The assault,
committed in the complainer’s home, involving detention/locking in, and aggravated by bail, was described as
very serious with potentially fatal consequences.
In addition, the respondent’s record—including a historic culpable homicide conviction, later violent and bladed-article
offending, and bail breaches—supported the court’s conclusion that the original sentence did not properly mark the gravity
of the offence nor reflect risk.
(d) Guilty plea discount: late pleas may attract none
The court criticised the trial judge’s approach of linking plea timing to factors “outwith the control of the respondent”.
The respondent could have attempted to plead earlier (even if rejected). A plea tendered after several days of evidence,
including the complainer’s, could properly attract no discount at all.
Nevertheless, the court allowed a token reduction, recognising limited utilitarian value (some remaining
evidence and jury deliberation avoided).
(e) Disposal: extended sentence and bail aggravation quantified
Replacing the Supervised Release Order, the court imposed an extended sentence, agreeing that ordinary licence
arrangements would be insufficient for public protection. It also highlighted that the bail aggravation should be
reflected expressly; it attributed 4 months of the headline custodial term to that aggravation,
implying that overlooking an aggravation can contribute to undue leniency.
3) Impact
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Bright-line rule on section 91: sentencing credit under section 91 requires a written agreement.
Informal discussions, offers, or prosecutorial intentions to take a statement do not suffice.
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Limits on “cooperation” mitigation outside section 91: courts may consider assistance as part of the overall
picture, but speculative or obligation-neutral “assistance” may attract no weight.
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Stricter approach to late pleas: a plea tendered only after significant evidence—especially the complainer’s—
may yield only a token reduction (or none), reinforcing that utilitarian benefit is central.
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Concerted violence sentencing: even where a co-accused causes the gravest injury, a near-simultaneous and
sustained participation can warrant a sentence close to the principal offender, particularly where the accused pleads
to concert in the weapon use.
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Aggravations must be marked: the explicit attribution of time to the bail aggravation underscores best practice
and provides appellate scrutiny where aggravations appear to have been ignored.
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Public protection disposals: the willingness to impose an extended sentence in place of supervised release
signals that persistent violent records combined with grave offending may justify longer post-custodial control.