Undue Leniency and Extended Sentences: “Bell” Deference, Guideline Flexibility, and Scrutiny of Risk Assessments

1. Introduction

His Majesty’s Advocate v Michael Patrick Harvey ([2026] HCJAC 3) is a Crown appeal against sentence in which the Appeal Court of the High Court of Justiciary refused to interfere with a 9-year custodial sentence (plus a concurrent 2-year sentence for attempting to defeat the ends of justice) imposed following convictions that included a sustained assault amounting to attempted murder and aggravated by abuse of a partner/ex-partner under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.

The appeal raised two core issues:

Whether the sentence for attempted murder was unduly lenient under the Crown appeal test in HM Advocate v Bell 1995 SCCR 244.
Whether the sentencing judge erred in not imposing an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995.

The judgment is significant for (i) reiterating the high threshold for “undue leniency”, (ii) confirming a non-mechanistic approach to the Scottish Sentencing Council’s guidelines, and (iii) showing how appellate courts will evaluate (and, where justified, discount) flawed risk-analysis underpinning calls for extended sentences—especially where the offender lacks a prior pattern of assault or domestic abuse convictions.

2. Summary of the Judgment

The court (Lord Justice Clerk, Lord Matthews, Lord Armstrong; opinion delivered by the Lord Justice Clerk, Lord Beckett) refused both grounds of appeal:

Ground 1 (Undue leniency): Although the harm was extreme and life-changing, the 9-year sentence did not fall outside the reasonable range available to the trial judge applying all relevant factors. The case was described as a “difficult” sentencing exercise because the attempted murder was not “typical”; there was no weapon, kicking, or stamping, and the CCTV gave a more nuanced picture of repeated “dropping/letting go” rather than the libel’s language of “throwing”.
Ground 2 (Extended sentence): The judge was entitled to refrain from imposing an extended sentence under s 210A. The Justice Social Work Report’s rationale contained errors and overstatements (notably weapon-related risk and domestic-history analysis). The absence of prior assault or domestic abuse convictions was a legitimate consideration when deciding whether ordinary licence arrangements were inadequate to protect the public from serious harm.

The court also added contextual observations about long-term prisoner release mechanisms under the Prisoners and Criminal Proceedings (Scotland) Act 1993 and the Parole Board (Scotland) Rules 2022/385, while emphasising (by reference to McKnight v HM Advocate [2008] HCJAC 62, 2009 JC 33 and Shovlin v HM Advocate 1999 SCCR 421) that sentencing courts must not calibrate sentence length by reference to early release provisions when selecting the “appropriate sentence”.

3. Analysis

3.1 Precedents Cited

(a) Undue leniency: the “Bell” test and appellate restraint

The court anchored the undue leniency analysis in HM Advocate v Bell 1995 SCCR 244, quoting Lord Justice General (Hope)’s formulation that a sentence may be increased only if it is “outside the range” reasonably open to the trial judge. The key functions of Bell in this case were:

To reaffirm that Crown appeals are not vehicles for substituting the appeal court’s preferred sentence.
To stress deference to the trial judge, especially after trial, where the judge saw and heard evidence (a point maintained even with CCTV evidence, because the appeal court did not hear the witnesses depicted).

(b) Sentencing guidelines: not a tick-box exercise

The Crown argued that the sentencing judge failed properly to apply the Scottish Sentencing Council’s guidelines (“Principles and purposes of sentencing” and “The Sentencing process”), made under the Criminal Justice and Licensing (Scotland) Act 2010 (ss 3, 5, 6).

The appeal court’s response leaned heavily on HM Advocate v GH [2023] HCJAC 45, 2024 JC 95. In GH, the court (through the then Lord Justice Clerk (Dorrian)) clarified that guidelines provide guidance, not a mandatory “template” requiring judges to “show their workings” step-by-step; sentencing remains “essentially holistic”. In Harvey, this principle was used to rebut any inference that omission of explicit guideline steps equated to non-compliance or misdirection.

(c) Error in method vs correctness of outcome: appeals focus on the final sentence

The court reinforced that sentencing appeals—Crown or defence—are not won by identifying arguable missteps in isolation if the overall sentence is not outwith the permissible range. It cited: Murray v HM Advocate [2013] HCJAC 3, 2013 SCCR 88; McGill v HM Advocate [2013] HCJAC 150, 2014 SCCR 46; Miller v HM Advocate [2024] HCJAC 3; 2024 JC 253; and Barnes v HM Advocate [2024] HCJAC 23, 2024 JC 364.

Collectively, these authorities supported the court’s stance that even if a criticism of the sentencing judge’s reasoning had bite, that would not automatically translate into “undue leniency” unless the sentence itself was beyond the reasonable range.

(d) Comparator sentences: distinguishing “Budge”, “Shankly”, and “Cairney”

The Crown relied on HM Advocate v Budge [2025] HCJAC 27, 2025 JC 368, Shankly v HM Advocate 17 December 2024 (unreported), and HM Advocate v Cairney 9 August 2024.

HM Advocate v Budge [2025] HCJAC 27, 2025 JC 368: The court treated Budge as materially worse: the offender used a car as a weapon, struck and deliberately drove over the complainer, and the offence was aggravated by being committed in the presence of children. The court also noted that in Budge an extended sentence was declined where there was no basis to conclude ordinary licence conditions were insufficient—an important parallel to Ground 2.
Shankly v HM Advocate 17 December 2024 (unreported): Distinguished because it involved a course of serious domestic abuse over two years culminating in catastrophic injuries (including permanent spinal cord injury and paraplegia). The Appeal Court in Harvey treated the prolonged pattern and varied abuse as a central differentiator.
HM Advocate v Cairney 9 August 2024: Distinguished due to substantially higher culpability and a significantly more violent criminal record (33 previous convictions including violent offences). The headline disposal included an extended sentence—again tied to a more demonstrable pattern of violence.

(e) Extended sentences: statutory responsibility lies with the judge

On Ground 2 the court cited McGowan v HM Advocate [2005] HCJAC 67, 2005 1 JC 327 and HM Advocate v McMahon [2025] HCJAC 34, 2025 SCCR 344 for the proposition that it is for the sentencing judge—rather than a social work author—to determine whether the s 210A criteria are met.

(f) Early release rules: relevance constrained by principle

The court referenced McKnight v HM Advocate [2008] HCJAC 62, 2009 JC 33, applying Shovlin v HM Advocate 1999 SCCR 421, to reaffirm that sentencing judges should not take account of early release provisions when selecting the appropriate determinate sentence. The court then carefully limited its later discussion of parole mechanics to the statutory question under s 210A—whether ordinary licence protection is adequate—rather than as a reason to set a higher or lower headline custodial term.

3.2 Legal Reasoning

(a) Undue leniency: extreme harm is not, by itself, determinative

The court accepted the assault produced “extremely serious” and “life-changing” consequences, and that culpability was “considerable”. However, the legal question was narrower: whether 9 years was outside the reasonable range.

Key reasoning steps were:

Holistic assessment: The court assessed the whole circumstances, not just the harm. The verdict was attempted murder, but the mechanics were not typical: no weapons; no kicking or stamping; violence described as “modest compared to most cases of attempted murder” (while still serious in context).
CCTV as a check on characterisation: Viewing the CCTV, the court considered that some descriptions (including the libel’s “throwing”) risked overstating what was seen; much of the conduct appeared as repeated “dropping” or letting go after attempts to raise the complainer. This did not excuse the behaviour; it mattered to culpability calibration and to whether the sentence range analysis could fairly be aligned with more overtly brutal attempted murders.
Responsibility for subsequent falls: The court recognised the jury were entitled to attribute criminal responsibility for the totality of injuries. But it also accepted that the sentencing judge could legitimately observe that the respondent’s responsibility was more direct for some injuries than others—without that amounting to impermissible minimisation.
Domestic aggravation increment and protective orders: The 9-year term included a one-year component for the domestic aggravation; an indefinite non-harassment order was also imposed. These features contributed to the conclusion that the sentencing judge had taken aggravation and protection seriously.

(b) Guidance compliance: reasons need not be formulaic

Responding to the Crown’s “guidelines” critique, the court stated:

A sentencer must have regard to guidelines (2010 Act s 6(1)), and give reasons if not following them (s 6(2)).
But guidelines do not require a “tick sheet”; reasons may be concise; omission of explicit steps does not imply they were ignored (per HM Advocate v GH [2023] HCJAC 45, 2024 JC 95 and the guideline itself).

(c) Extended sentence: errors in risk narrative and the “pattern” question

Under s 210A, an extended sentence may be imposed for a violent offence where a custodial sentence of 4 years or more is imposed and the court considers that ordinary licence would not adequately protect the public from serious harm. The court’s reasoning emphasised:

Quality of risk material matters: The Justice Social Work Report was criticised for (i) treating certain convictions as “violent” inaptly, (ii) misstating the nature of weapon convictions under section 49 of the Criminal Law (Consolidation) (Scotland) Act 1995 (possession of a knife in a public place) as “offensive weapon” use (contrasting s 49 with s 47), and (iii) overstating domestic history by questionable conflation of police call-outs.
Absence of prior assault/domestic abuse convictions: The court treated this as a legitimate factor tending against the conclusion that the offence formed part of a continuing pattern requiring extended supervision.
Judicial discretion within statutory criteria: Applying McGowan v HM Advocate [2005] HCJAC 67, 2005 1 JC 327 and HM Advocate v McMahon [2025] HCJAC 34, 2025 SCCR 344, the judge was entitled to find ordinary licence arrangements sufficient in the particular circumstances.

(d) Parole and long-term prisoner status: a careful, limited observation

The court’s discussion of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (s 1) and the Parole Board (Scotland) Rules 2022/385 served one function: explaining why, for a long-term prisoner, there may be meaningful licence management (and Parole Board scrutiny) such that an extended sentence is not always necessary for public protection.

Importantly, the court fenced this discussion off from headline sentencing selection by reiterating McKnight v HM Advocate [2008] HCJAC 62, 2009 JC 33 and Shovlin v HM Advocate 1999 SCCR 421.

3.3 Impact

The likely influence of [2026] HCJAC 3 is practical rather than doctrinal revolution; it consolidates and applies existing principles in a fact-sensitive setting.

(a) Crown appeals: reinforcing the high bar

The decision underscores that even where harm is catastrophic and culpability is high, the Crown must still demonstrate that the sentence is outwith the reasonable range. The court’s insistence on deference—particularly post-trial—reaffirms that Crown appeals are exceptional interventions.

(b) CCTV cases: appellate viewing may recalibrate culpability assessment

The case illustrates how CCTV can cut both ways: it may corroborate repetition and vulnerability, yet also temper language-driven characterisations (for example, “throwing” versus “dropping”). Future cases may cite Harvey when arguing that the visual record should be treated as primary evidence for the nature of force used, while still recognising the trial judge’s advantage in hearing witness testimony.

(c) Extended sentences: scrutiny of social work risk reasoning

The judgment signals that calls for extended sentences must rest on accurate statutory and factual foundations. Where risk analysis:

misclassifies offences,
inflates “weapon” relevance by conflating s 49 with “offensive weapon” conduct, or
overstates domestic patterns through unsupported inference,

the court may treat it as a weakened basis for concluding that ordinary licence is inadequate.

(d) Comparator sentencing: careful matching of culpability modes

The court’s distinctions from HM Advocate v Budge [2025] HCJAC 27, 2025 JC 368, Shankly v HM Advocate 17 December 2024 (unreported), and HM Advocate v Cairney 9 August 2024 emphasise that attempted murder is not a monolith. Sentencers and appeal courts must match comparators not only on outcome harm, but on mechanism, intent-inference context, patterning, and aggravating features (presence of children, prolonged abuse history, prior violence).

4. Complex Concepts Simplified

Crown appeal against sentence / “unduly lenient”: The Crown can ask the appeal court to increase a sentence, but only where it is not just “lenient” but unduly so—meaning it falls outside the range a reasonable judge could impose (HM Advocate v Bell 1995 SCCR 244).
Domestic abuse aggravation: An “aggravation” is a statutory factor that increases seriousness. Here, the attempted murder was proved to involve abuse of a partner/ex-partner under s 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, and the judge explicitly allocated part of the sentence to that aggravation.
Extended sentence (s 210A): An extended sentence adds an “extension period” of licence after custody to protect the public from serious harm, but it is not automatic: the court must find that normal licence arrangements are inadequate (Criminal Procedure (Scotland) Act 1995, s 210A).
Long-term prisoner and Parole Board: For longer sentences, release at the halfway point is not automatic; it depends on Parole Board assessment of risk and management in the community. Automatic release (if it occurs) is close to sentence end (1993 Act, s 1). The court discussed this only in relation to whether extended supervision was necessary.
“Having regard to” sentencing guidelines: Sentencers must consider applicable guidelines, but do not need to write a step-by-step checklist. Sentencing remains holistic (HM Advocate v GH [2023] HCJAC 45, 2024 JC 95).
Non-harassment order (NHO): A court order prohibiting contact/harassment of the complainer; here it was imposed indefinitely as a protective measure.

5. Conclusion

[2026] HCJAC 3 reinforces three main propositions in Scottish sentencing law:

“Undue leniency” remains a stringent threshold: even severe harm and high culpability do not justify appellate interference unless the sentence is outwith the reasonable range (HM Advocate v Bell 1995 SCCR 244).
Guidelines guide, they do not mechanise: a sentencing judge is not required to demonstrate compliance by a template; the appeal court assesses the overall approach and final disposal (HM Advocate v GH [2023] HCJAC 45, 2024 JC 95; also Murray v HM Advocate [2013] HCJAC 3, 2013 SCCR 88 and related authorities).
Extended sentences demand a solid evidential and analytical basis: judges may reject or discount flawed risk reasoning and may legitimately treat absence of prior assault/domestic abuse convictions as relevant when deciding whether ordinary licence is adequate (McGowan v HM Advocate [2005] HCJAC 67, 2005 1 JC 327; HM Advocate v McMahon [2025] HCJAC 34, 2025 SCCR 344).

The broader significance lies in disciplined appellate restraint: the court condemned neither the seriousness of the offending nor the suffering caused, but insisted that sentence appeals—especially Crown appeals—are not a forum for re-sentencing unless the legal standard for intervention is clearly met.