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Crown Appeal against Sentence by His Majesty's Advocate against Kevin Smith (High Court of Justiciary)
Factual and Procedural Background
On 18 December 2025 the Respondent pleaded guilty to a charge of assault to severe injury, permanent disfigurement and danger of life and was sentenced to 28 months' imprisonment with a Supervised Release Order for 12 months. The Appellant appealed, arguing that the sentence was unduly lenient and that the sentencing judge erred in law by applying section 91 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 when reducing the sentence.
The Respondent had been indicted with two co-accused. A trial commenced in November 2025 after one co-accused was not apprehended and later deserted; the jury was balloted and evidence was led over several days. On 21 November 2025 the Respondent and one co-accused tendered guilty pleas to a charge arising from an incident on 19 October 2022 at an address in The City. The pleaded charge described the Respondent acting with another person to detain and repeatedly assault the Complainer using knives or similar implements, a glass bottle and a TV stand, causing severe injury, permanent disfigurement and danger to life. References to abduction, use of a metal pole and attempted murder were deleted from the plea.
The trial judge described the Respondent's personal injuries inflicted as largely small and superficial, attributed the more serious violence to the other co-accused, noted the Respondent's history of substance use work and prior convictions (including a youth conviction for culpable homicide), and applied a 10% reduction for an offer to assist and a further 10% for the guilty plea.
Legal Issues Presented
- Whether the sentencing judge erred in law in applying section 91 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (by treating an offer to assist the prosecution as attracting a discount absent the written agreement required by section 91).
- Whether the overall sentence was unduly lenient, including whether the discounts applied (for assistance and for the guilty plea) were excessive.
Arguments of the Parties
Appellant's Arguments
- Section 91 did not apply because it requires a written agreement; no such written agreement existed.
- The Respondent's role was not subsidiary or significantly less serious than the co-accused; he inflicted multiple penetrating wounds concurrently with the co-accused's knife strikes.
- The offence was aggravated (influence of substances, attack in the Complainer's home, detention, significant prior record and assessed high risk of reoffending) and the headline sentence did not reflect seriousness; the discount was excessive.
- While discretion exists on discounting, it is not unfettered; the Crown never received the Respondent's approach to plead earlier and any suggestion of accepted assistance was not realised.
Respondent's Arguments
- The judge erred in relying on section 91 where no written agreement existed; absent section 91 the judge could still consider assistance as part of overall assessment at common law.
- The deletion of attempted murder and the Respondent's comparative culpability supported the sentence imposed; the reduction for the plea was within reasonable discretion despite timing.
- Any legal error on section 91 did not render the headline sentence or the plea reduction unduly lenient.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gemmell v HM Advocate [2011] HCJAC 129, 2012 JC 223 | Limits on sentencing discretion in relation to discounts (discount is a matter of discretion but not wholly unfettered). | Cited by the Appellant; court noted discretion exists but must be exercised within legal limits when assessing reductions. |
| Cormack v HM Advocate [1996] SCCR 53 | Permits that offers of assistance, where Act does not apply, may be considered at common law as a circumstance in sentencing. | Used to explain that absent section 91 a court may attach weight to an offer to assist but would not express a specific reduction under statute. |
| O'Neill v HM Advocate [1999] JC 1 | Similar principle to Cormack regarding consideration of assistance outside statutory scheme. | Reinforced that offers of assistance without statutory mechanism do not yield a specified statutory discount. |
| HM Advocate v Bell [1995] SCCR 244 | Test for undue leniency appeals: sentence must fall outside range which a reasonable sentencer could have regarded as appropriate. | Applied as the governing test for whether the original sentence was unduly lenient and whether interference was justified. |
| Armstrong v HM Advocate [2021] HCJAC 34, 2021 JC 227 | Principle of comparative justice: ordinarily like offenders should receive like sentences, subject to personal circumstances and roles. | Referenced in assessing relative culpability between co-accused and permissible differentiation in sentencing. |
| Gardiner and Anderson v HM Advocate [2024] HCJAC 44, [2025 JC 114] | Further authority on comparative justice and factors justifying differential sentences among co-participants. | Supported the court's consideration that differences in role and personal circumstances can justify different sentences, but did not demonstrate a basis for the trial judge's discount level here. |
Court's Reasoning and Analysis
The court analysed section 91 and concluded it applies only where a written agreement to assist the prosecutor exists; the statutory mechanism requires the court to state in open court when a lesser sentence is imposed for that reason. Where the statute does not apply, offers of assistance may be weighed at common law but will not attract an express statutory discount.
The court found that the purported offer to assist by the Respondent was untested (the other co-accused pleaded before any cooperation could be progressed) and that, in any event, the Respondent would have been liable to be cited to give evidence and thus had a legal duty to tell the truth; accordingly there was no proper basis to afford a reduction for an expressed willingness to cooperate under section 91 or equivalent statutory treatment.
On the undue leniency issue, applying the Bell test, the court emphasised the very serious nature of the assault and noted that the Respondent participated "more or less simultaneously" with the co-accused in inflicting multiple injuries. The trial judge had understated the seriousness of the Respondent's contribution and had erred in allowing the cumulative discounts applied. The appellate court accepted that a very limited utilitarian value attached to the late guilty plea but confined any reduction for the plea to a token amount.
Given these conclusions, the court quashed the original sentence and substituted an extended sentence: total of 8 years and 2 months comprising a custodial term of 5 years and 2 months and an extension period of 3 years. The court explained that the custodial term was reduced from a headline sentence of 5 years and 4 months (the 4 months reflecting the bail aggravation which the trial judge had overlooked). The court agreed the Supervised Release Order was necessary in principle and replaced it with the extended sentence structure.
Holding and Implications
The Appellant's appeal was allowed in part.
Holding: the sentencing judge erred in law in treating an unrecorded offer to assist as attracting a statutory discount under section 91; the sentence as imposed was quashed and substituted by an extended sentence of 8 years 2 months (custodial term 5 years 2 months; extension period 3 years). The court limited any discount for the guilty plea to a token amount.
Implications: The direct effect is to increase the Respondent's custodial exposure by substitution of the extended sentence described above. The opinion emphasises the narrow application of section 91 (written agreements only) and reaffirms that untested offers to assist may be considered at common law but will not justify statutory-type reductions; no broader new precedent beyond application of established principles was announced.
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