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

1. 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.
2. 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

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.