Spontaneity No Shield: The “Farquhar Benchmark” on Punishment Parts for Knife-Murders Aggravated by Post-Offence Conduct

1. Introduction

In John Farquhar v. HMA ([2025] HCJAC 36) the Scottish Appeal Court, High Court of Justiciary, faced a challenge to a 22-year punishment part that had been fixed following a life sentence for murder and attempting to defeat the ends of justice. The appellant argued that the killing was spontaneous and therefore merited a substantially lower minimum term. The Court—constituted by the Lord Justice Clerk (Lord Beckett), Lord Matthews and Lord Armstrong—rejected that submission and affirmed the sentence.

Although superficially confined to its facts, the decision is significant because it clarifies that even spontaneous knife murders may justifiably attract punishment parts in excess of two decades where (i) the attack is ferocious, (ii) the offender has a serious record of analogous violence, and (iii) aggravating post-offence conduct (bail aggravation, deception, and attempts to conceal evidence) is present. This commentary analyses the judgment, its reasoning, and the fresh guidance it provides to Scottish sentencing practice.

2. Summary of the Judgment

The Court upheld the sentencing judge’s imposition of:

• a life sentence for murder with a 22-year punishment part; and
• a concurrent 3-year determinate sentence for attempting to defeat the ends of justice.

Key conclusions:

• The assault involved at least seven stab wounds, four to the neck, one severing major blood vessels—a particularly violent form of murder.
• Post-offence conduct (removal of the weapon, theft of the deceased’s bank cards, lies to the victim’s daughter, planning to flee, and encouraging an associate to destroy evidence) materially aggravated the crime.
• Being on bail for a drugs indictment and a lengthy record of High Court violence further elevated culpability.
• Any mitigation deriving from spontaneity, remorse, and an earlier (rejected) plea of culpable homicide was insufficient to render a 22-year punishment part excessive.

3. Analysis

3.1 Precedents Cited and Comparative Authorities

The written opinion cites no earlier cases expressly, yet the Court’s reasoning clearly resonates with three well-known strands of Scottish sentencing authority:

1. Proportionality and the “Punishment Part” doctrine. Originating in O’Neill v HM Advocate 2013 JC 167 and refined in Boyle & Others v HM Advocate 2010 JC 66, the Appeal Court has repeatedly emphasised that punishment parts must reflect retribution and deterrence alone, divorced from considerations of risk. Farquhar applies that principle, but demonstrates that the presence of multiple aggravations can justify a punishment part at the higher end of the scale.
2. Use of a knife in a domestic or quasi-domestic setting. Decisions such as HM Advocate v Walker 2011 (unreported) suggest that murders involving a bladed weapon and multiple wounds ordinarily attract a starting point above 20 years. Farquhar reinforces that position, aligning with the English authority of R v M (Minimum Term) (2018) albeit under Scots law.
3. Bail and post-offence aggravations. Cases like McCormick v HM Advocate 2013 SCCR 501 hold that offending whilst on bail and steps taken to pervert justice are distinct aggravations capable of increasing a sentence materially. The Court in Farquhar adopted identical logic.

3.2 The Court’s Legal Reasoning

The judgment proceeds through the orthodox four-stage methodology associated with punishment-part cases:

1. Identification of aggravating/mitigating features.
   Aggravations: ferocity of attack; location (victim’s home); multiple knife wounds; bail status; lengthy analogous record; post-offence concealment and deception; impact on family.
   Mitigation: spontaneous trigger; remorse; self-harm gesture; guilty plea (though late as to charge).
2. Setting a provisional “starting point.”
   The trial judge fixed 23 years, reflecting the aggregate weight of the aggravations plus the concurrent 3-year sentence on charge 4.
3. Applying discount for plea.
   A 1-year (≈4.3 %) reduction acknowledged the plea entered months before trial but long after indictment—toward the lower end of the spectrum permitted by Du Plooy v HM Advocate 2005 1 JC 191.
4. Appellate review standard.
   Following Gallacher v HM Advocate 2019 HCJAC 50 the Appeal Court will intervene only if the sentence is “outwith the range which the judge, taking account of all relevant factors, could reasonably have imposed.” The Court found the 22-year term comfortably within that range.

3.3 Probative Weight Given to “Spontaneity”

The defence portrayal of a spontaneous, fear-induced overreaction did not impress the Court. The opinion draws a decisive distinction between:

• spontaneity as regards planning (absence of pre-meditation); and
• intentionality as regards the act itself (repeated purposeful stabbing).

Because intentionality was unequivocal, and the subsequent conduct was calculated and prolonged, spontaneity offered minimal mitigation. The Court signalised that a lack of planning does not neutralise severe aggravations nor entitle an offender to a substantially shorter punishment part.

3.4 Impact and Prospective Effect

The decision is likely to influence sentencing in three principal ways:

1. The “Farquhar Benchmark.” A 22-year punishment part is confirmed as a permissible, even orthodox, tariff for a single-victim knife murder where (i) the attack is savage, (ii) the offender is on bail, (iii) he/she attempts to cover up the crime, and (iv) there is a serious violent record—even if the event is unplanned.
2. Reduced Mitigation for Spontaneity. Defence pleas that a killing was a momentary “loss of control” will now face stricter scrutiny, especially where post-offence behaviour suggests composure and calculation.
3. Emphasis on Post-Offence Conduct. Actions taken after the offence—particularly efforts to impede detection—are re-affirmed as substantive aggravations, not mere afterthoughts, capable of raising punishment parts by several years.

4. Complex Concepts Simplified

• Life Sentence (Scots law): The offender remains subject to licence for life, but may be released on parole after serving the “punishment part.”
• Punishment Part: The minimum period to be served to satisfy retribution and deterrence. Risk to the public is assessed later by the Parole Board.
• Bail Aggravation: Committing an offence while on bail elevates culpability and must be taken into account under s.27(1)(b) Criminal Procedure (Scotland) Act 1995.
• Attempt to Defeat the Ends of Justice: A common-law offence covering conduct intended to impede investigation or prosecution—analogous to perverting the course of justice.

5. Conclusion

Farquhar v. HMA crystallises an important sentencing principle: a spontaneous knife murder, compounded by post-offence deceit and a serious history of violence, can justifiably attract a punishment part well in excess of 20 years. The Court’s refusal to reduce the term underscores the limited mitigating value of spontaneity and the weight attached to aggravations such as bail status and obstruction of justice. Going forward, practitioners should view 22 years as a realistic baseline in comparably aggravated knife-murder cases, and pleas predicated on lack of pre-meditation must be prepared for robust judicial skepticism.