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Crown Appeal Against Sentence by His Majesty's Advocate against Michael Patrick Harvey (High Court of Justiciary)
Smart Summary
Anonymised Summary of Court Opinion
Factual and Procedural Background
This is a Crown appeal against sentence following the respondent's conviction after trial in the High Court at The City on 18 July 2025. The Appellant appealed the length of a custodial sentence of nine years imposed for a sustained assault amounting to attempted murder and a concurrent sentence of two years for an attempt to defeat the ends of justice. The jury returned unanimous guilty verdicts on the libels before it, acquitting the respondent of a related averment. The evidence at trial relied largely on recorded footage and witness testimony. The respondent sustained a significant prior record comprising assorted offences. The opinion was delivered on 22 January 2026 by Judge Beckett sitting with Judge Matthews and Judge Armstrong.
Legal Issues Presented
- Whether the sentence of nine years' imprisonment was unduly lenient.
- Whether the sentencing judge erred in declining to impose an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995.
Arguments of the Parties
Appellant's Arguments
- The sentence was unduly lenient given repetition of actions, the period over which the assault occurred and the severe, life-changing consequences for the complainer.
- The judge should have imposed an extended sentence; the reporting social worker's conclusions supported that course.
- The judge misapplied sentencing guidelines and erred in several passages of his report; established precedents (including HM Advocate v Budge, Shankly, Cairney) point toward a heavier sentence.
Respondent's Arguments
- The sentencing judge took full account of the evidence and applicable principles; his reasoning and report were clear and sound.
- CCTV and other evidence supported aspects of the judge's factual conclusions (e.g. the low ledge and attempts to obtain medical assistance).
- The Crown's appeal reflected disagreement rather than demonstration that the sentence fell outside a reasonable range.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| HM Advocate v Bell 1995 SCCR 244 |
Test for when an appellate court may increase sentence: sentence is "unduly lenient" only if it falls outside the range which a reasonable sentencing judge could have considered appropriate. |
The court applied the Bell approach and concluded the sentence did not fall outside the reasonable range; therefore no interference was justified. |
| HM Advocate v Budge [2025] HCJAC 27, 2025 JC 368 |
Authority considered by Crown to support a higher headline sentence for serious domestic offending. |
The court distinguished Budge as materially more serious (use of a car as a weapon) and found it not persuasive to show undue leniency here. |
| Shankly v HM Advocate (17 December 2024) (unreported) |
Sentencing comparison for prolonged course of serious domestic abuse culminating in catastrophic injury. |
The court treated Shankly as distinguishable on its extensive pattern and greater consequences; it did not support increasing the present sentence. |
| HM Advocate v Cairney (9 August 2024) (unreported) |
Example of an extended sentence imposed for domestic attempted murder with a significant prior record. |
The court distinguished Cairney by reference to the appellant's substantially higher culpability and extensive convictions. |
| HM Advocate v GH [2023] HCJAC 45, 2024 JC 95 |
Guidance that the "Sentencing process" guideline does not require judges to set out a detailed step-by-step template for sentencing. |
The court relied on GH to confirm that absence of a rigid template in the judge's report did not indicate failure to follow the guideline. |
| 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; Barnes v HM Advocate [2024] HCJAC 23, 2024 JC 364 |
Principles that sentencing appeals examine the sentence as a whole and will not overturn on the basis of isolated errors in the sentencing process. |
The court applied these authorities to refuse to treat alleged discrete errors in the judge's report as determinative of undue leniency. |
| McGowan v HM Advocate [2005] HCJAC 67, 2005 1 JC 327; HM Advocate v McMahon [2025] HCJAC 34, 2025 SCCR 344 |
Principle that the trial judge must determine whether statutory criteria for an extended sentence are met. |
The court cited these cases to support that it was for the sentencing judge, on the material before him, to decide on an extended sentence; it found no error in his decision not to impose one. |
| McKnight v HM Advocate [2008] HCJAC 62, 2009 JC 33; Shovlin v HM Advocate 1999 SCCR 421 |
Authority that sentencing judges should not take account of early release provisions (change in status from short-term to long-term) when fixing tariff. |
The court referred to these authorities to explain the position of long-term prisoners and parole considerations in the context of extended sentence analysis. |
Court's Reasoning and Analysis
The court applied the Bell test for undue leniency, emphasising deference to the trial judge who had seen and heard the evidence. It reviewed the sentencing guidelines ("Principles and purposes of sentencing" and "The Sentencing process") and noted that a sentencer need not produce a detailed template of reasoning. The court considered aggravating features (repetition, period of assault, severe and life-changing harm, previous convictions and CPO status) and mitigating or distinguishing features (absence of prior assault or domestic-abuse convictions, the manner of the assaults as shown on recordings, and efforts to seek medical attention). The panel viewed the recorded footage itself and described aspects that reduced the weight of some Crown criticisms (e.g. the low height of the ledge and instances appearing as the respondent dropping rather than violently throwing the complainer).
Comparing the case to precedents relied upon by the Appellant, the court distinguished each on facts and culpability, observing that cited authorities involved materially greater or different levels of violence, patterns of offending, or prior convictions. The court also analysed the reporting social worker's reasoning on risk and identified flaws, concluding that such imperfections did not compel an extended sentence. Applying established appellate principles, the court determined the judge's overall sentencing exercise fell within the range a reasonable judge could have reached and therefore was not unduly lenient.
Holding and Implications
APPEAL REFUSED
Holding: The court refused both grounds of the Crown appeal. It concluded the nine-year custodial sentence (including one year for domestic aggravation) and the concurrent two-year sentence on the related charge were not unduly lenient, and the sentencing judge did not err in declining to impose an extended sentence under section 210A.
Implications: The sentences as imposed by the trial judge remain in force (including the backdating to remand and an indefinite non-harassment order in favour of the complainer). The court distinguished the precedents relied upon by the Appellant and did not establish a new precedent widening the range for sentence increase in similar fact patterns.
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