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Crown Appeal against Sentence by His Majesty's Advocate against CM (High Court of Justiciary)
Factual and Procedural Background
The Appellant appealed against sentence imposed after a jury at the Sheriff Court convicted the Respondent on four charges on 21 August 2025 and the sheriff sentenced the Respondent on 2 October 2025. The Crown advanced two grounds of appeal: (1) that the 3-year imprisonment on charge 2 was unduly lenient; and (2) that the sheriff erred in declining to make a sexual harm prevention order (SHPO) in respect of charges 7 and 8, thereby failing adequately to protect the public. The sheriff had imposed concurrent sentences on charges 1 and 2 (12 months and 36 months respectively) and concurrent sentences on charges 7 and 8 (4 months and 2 months respectively), with the latter consecutive to charge 2, producing an effective total term of 40 months' imprisonment. The offences involved historical sexual abuse of Complainant A in the 1980s and more recent sexual assault and electronic communications directed at Complainant B in 2022. The sheriff refused the Crown's proposed SHPO; this refusal formed the second ground of appeal.
Legal Issues Presented
- Whether the sentence of 36 months' imprisonment on charge 2 was unduly lenient such that it fell outside the range a sheriff, applying her mind to all relevant factors, could reasonably have considered appropriate.
- Whether the sheriff erred in refusing to make a sexual harm prevention order in respect of charges 7 and 8, and whether that refusal rendered the overall sentence unduly lenient by failing to protect the public.
Arguments of the Parties
Appellant's Arguments
- The sentence on charge 2 did not reflect the gravity of the offending: planning, grooming, repeated penetrative acts including insertion of objects, and severe physical and psychological harm to Complainant A.
- The offence involved an egregious breach of parental trust and repetition over several years; these factors warranted a significantly longer custodial term—cross-checked against English and Welsh guidelines, the comparable offence could attract a starting point of 16 years.
- The sheriff erred in declining to impose an SHPO; ordinary licence conditions were insufficient and an SHPO was necessary to protect children given the assessed risk.
Respondent's Arguments
- The sheriff properly exercised discretion, having regard to Scottish precedents (notably HM Advocate v B(C)) and the respondent's advanced age and other mitigating features; the sentence on charge 2 was within the range reasonably open to the sheriff.
- The proposed SHPO terms were overly broad and would be incompatible with Article 7; the Crown's draft prohibitions required refinement. The respondent accepted that a narrower SHPO (prohibiting contact with persons under 16 with appropriate qualifications) for 10 years would be appropriate.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| HM Advocate v B(C) [2023] HCJAC 4, 2023 JC 59 | Comparable Scottish authority on sentencing for prolonged intrafamilial sexual abuse; guidance on factors and appropriate ranges. | The court treated B(C) as the most relevant reported authority and compared culpability and harm; it concluded that, despite leniency, the sentence in the present case did not fall outside the range reasonably open to a sheriff familiar with B(C). |
| HM Advocate v RB [2025] HCJAC 7, 2025 JC 302 | Illustration of highest-level harm and breach of trust in parent-child sexual offences. | Relied upon by the Crown to characterise harm as at the highest level; the court noted RB as a precedent demonstrating severe consequences but distinguished factual differences. |
| HM Advocate v Collins [2016] HCJAC 102, 2017 JC 99 | Authority for substantial custodial sentences where offender in position of trust perpetrated repeated penetrative offences. | Cited by the Crown as supporting higher sentencing; the court acknowledged its relevance but noted factual distinctions. |
| HM Advocate v MacGregor [2025] HCJAC 28, 2025 JC 358 | Repetition increases seriousness in sexual offending. | Referenced as part of the line of authorities affirming that repetition aggravates culpability; used in the Crown's submissions. |
| HM Advocate v JT 2005 1 JC 86 | Principle that repeated offending is an aggravating feature in sexual offences. | Placed alongside other authorities to support the Crown's position on aggravation by repetition. |
| HM Advocate v Cooperwhite [2013] HCJAC 88, 2013 SLT 975 | Sentencing approach where offender enjoyed prolonged impunity; weight of good character is limited. | Cited to argue limited mitigating effect of good character and passage of time. |
| A v HM Advocate [2015] HCJAC 105, 2016 SLT 26 | Community denunciation of sexual offending against children; sentencing importance. | Used to illustrate societal culpability assessments relied on by the Crown. |
| HM Advocate v AB [2015] HCJAC 106, 2016 SCCR 47 | Cross-checking with other jurisdictions' guidelines may indicate undue leniency where major disparities exist. | Invoked to support the proposition that disparity with English guidelines can confirm undue leniency; court considered but treated English guidelines cautiously. |
| HM Advocate v Docherty [2024] HCJAC 36, 2025 JC 31 | Use of comparative guidelines as part of unduly lenient analysis. | Cited by the Crown; court noted guidance to treat English guidelines as a cross-check only. |
| HM Advocate v JM [2019] HCJAC 9 | Sentencing for long-ago intrafamilial sexual offences and weight of intervening good conduct and health. | Referenced in comparing mitigating factors such as exemplary intervening conduct and health. |
| HM Advocate v Bell 1995 SCCR 244 | Test for undue leniency: whether the sentence falls outside the range reasonably open to the sentencing judge applying his mind to relevant factors. | The court applied the Bell test as the governing approach to the Crown's first ground and reiterated the threshold for interference. |
| HM Advocate v McKay 1996 JC 110 | Requirement that the Crown exercise high standards of care in selecting cases for appeal under undue leniency jurisdiction. | Referred to as guidance on the Crown's responsibility in formulating appeals; the court noted the need for care. |
| HM Advocate v Bennett 1997 JC 49 | Related guidance on Crown care in appeals. | Noted alongside McKay as part of procedural cautions. |
| HM Advocate v Stalker 2003 SCCR 734 | Forum choice by the Crown does not constrain an appropriate sentence; remit to higher court may be appropriate where sheriff's powers are exceeded. | Applied to reject the suggestion that prosecution in the Sheriff Court precluded a greater sentence; the court noted the correct remedy would have been remit under statute if higher sentence required. |
| McGhee v HM Advocate [2006] HCJAC 87, 2006 SCCR 712 | Principle that Crown's forum selection does not dictate sentencing limits. | Used to support the court's treatment of forum choice as non-determinative. |
| Sutherland v HM Advocate [2015] HCJAC 115, 2016 SLT 93 | English guidelines may be used as a cautious cross-check but not applied rigidly in Scotland. | Quoted to emphasise caution in using English and Welsh sentencing guidelines; court applied this principle in evaluating cross-jurisdictional comparisons. |
| R v Smith [2011] EWCA Crim 1772 | Limits on overly broad prohibitions in prevention orders; need for precision. | Relied on in submissions (for the respondent) to show that blanket contact prohibitions can be overbroad; the court adopted a tailored prohibition in its SHPO. |
| R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] AC 345 | Requirement that criminal prohibitions be sufficiently precise to enable regulated persons to foresee conduct prohibited (Article 7 compatibility). | Invoked by the respondent in argument against an overly broad SHPO; the court crafted a more precise order to address that concern. |
Court's Reasoning and Analysis
The court applied the Bell test for undue leniency: the sentence must fall outside the range a sentencing judge could reasonably have considered appropriate after applying her mind to all relevant factors. The court assessed reported Scottish authorities as the primary guide and treated English and Welsh guidelines only as a careful cross-check.
The court compared the present facts with HM Advocate v B(C) and other precedents. It acknowledged that charge 2 involved appalling circumstances and very serious harm and breach of parental trust, noting aggravating features (use of objects, repetition, concealment). Nevertheless, having regard to the similarities and differences with B(C) and other reported cases, the court concluded that although the sentence was lenient, it did not fall outside the range reasonably open to the sentencing sheriff who had considered B(C). Accordingly, the first ground of appeal was refused.
On the second ground, the court found that the risk profile and the respondent's propensity to offend justified an SHPO. The sheriff's reasons for refusing the Crown's proposed order were examined, including concerns about overbreadth and Article 7 precision. The court accepted submissions refining the terms and concluded that an SHPO, limited in scope (contact prohibited with persons under 16 with specified exceptions) and containing electronic-device and inspection requirements, was necessary to protect the public. The court therefore made a 10-year SHPO with specific prohibitions and requirements concerning contact with children under 16 and management of electronic devices.
Holding and Implications
Holding:
First ground (unduly lenient sentence on charge 2): REFUSED — the appeal court concluded the sentence did not fall outside the range reasonably open to the sentencing sheriff.
Second ground (failure to make an SHPO): ALLOWED — the court made a sexual harm prevention order for a period of 10 years with tailored prohibitions and electronic-device management requirements.
Implications:
- Direct effect: the Respondent's custodial sentence remains as imposed (effective term 40 months' imprisonment); an SHPO was imposed for 10 years containing prohibitions on contact with persons under 16 (with specified, limited exceptions) and obligations relating to electronic devices, inspections, and preservation of communications.
- No new sentencing precedent was declared; the court applied existing Scottish authorities and emphasised the cautious use of English and Welsh guidelines as a cross-check.
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