3.2 Legal Reasoning
A. Error is not enough: the result must be excessive
The court’s central doctrinal move was to separate (i) identifying missteps in the sentencing judge’s methodology from (ii) deciding whether the sentence was
excessive. Even a clear error—here, using the class A part of an English guideline—does not itself establish a miscarriage of justice. The appellate question remains:
looking at all relevant circumstances “in the round”, does the ultimate sentence fall outside what could reasonably be imposed?
B. English guidelines: useful but structurally risky in Scottish “concern in supplying” cases
The court acknowledged the potential utility of English guidelines in the absence of a Scottish offence guideline, particularly for UK statutory offences.
But it cautioned against literal transposition because the Scottish charging practice under section 4(3)(b) (“concerned in supplying”) may capture a wider range
of conduct than the English guideline’s target offences (section 4(3)(a) supply and section 5(3) PWITS). This creates a “like-with-like” problem:
a guideline built around narrower offence labels may under- or over-reflect the gravity of conduct prosecuted in Scotland.
The court also contrasted evaluative emphases: English guidelines quantify “harm” primarily by weight, whereas Scottish practice frequently places strong emphasis on
value as well as quantity.
C. Two distinct offences, not one aggregated incident
A key corrective to the Commission’s approach was the court’s insistence that the case could not be treated as a single 59kg offence.
There were two crimes committed nine months apart, in different circumstances, implying persistence and escalation.
That mattered both to culpability (continued participation) and to structure (consecutive/cumulative sentencing logic).
D. The appellant’s role and maturity: “significant” was generous
On the facts of charge 2, the appellant appeared to exercise control over a flat used for storage/packaging/distribution, with cash, scales, notations, and
communication with an incoming consignment. The court considered it generous to characterise the role as no more than “significant” within the English taxonomy,
and rejected the suggestion he was at the lower end of that category. These factual findings also undermined any suggestion that youth necessarily reduced culpability
in a meaningful way: the appellant’s responsibilities and entrusted control evidenced maturity.
E. Prior conviction and sentencing calibration
The appellant’s prior conviction in England for drug production was a relevant aggravating factor. The court treated this as reinforcing the appropriateness of a
substantial custodial response for repeated involvement with commercial-scale drugs.
F. “Errors” that favoured the appellant
The court identified three further errors, each operating to the appellant’s benefit:
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Remand time: the judge reduced the sentence length rather than adjusting the commencement date (contrary to HM Advocate v O'Doherty [2022] HCJAC 31, 2022 JC 253).
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Youth: the judge reduced the starting point by a quasi-arithmetical exercise rather than evaluating culpability with the individualized approach required by
Hibbard and Dunn.
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Plea discount: the judge allowed a meaningful reduction for a late plea where, under Gemmell, only a token discount would usually be justified.
These compounding pro-appellant errors helped explain why the court was not persuaded the sentence could be excessive, notwithstanding the guideline mistake.
G. Observations on sifting decisions
The court endorsed the sift judges’ focus: the task is to decide whether it is arguable that the sentence imposed was excessive, not to audit every step of reasoning.
It also reiterated that, while reasons must be given for refusals under section 107 of the Criminal Procedure (Scotland) Act 1995, it will usually be unnecessary to give reasons
when granting leave, and a developing practice of detailed reasons for grants (notably by some temporary judges) is generally undesirable.