- Bookmark
- Share
- CaseIQ
Appeals against Sentence by David Nisbet and Declan James McCuish against His Majesty's Advocate (High Court of Justiciary)
Factual and Procedural Background
The opinion concerns two appeals against extended sentences imposed on 27 March 2025 after a High Court trial in The City. The First Appellant received an extended sentence of 16 years, including 13 years’ custody, for directing serious drug offences and conspiring to murder; the Second Appellant received an extended sentence of 14 years, including 11 years’ custody, for serious organised crime and the same murder conspiracy. [1][2][3][4][5]
The appeals challenged sentence length principally on comparative-justice grounds. The First Appellant relied on sentences imposed on other participants and, at the hearing, on unrelated proceedings; the Second Appellant compared his sentence with that of the First Appellant. [1]
Both Appellants abandoned earlier non-disclosure challenges to their convictions. The First Appellant’s lawyers withdrew before the sentence appeal hearing, after which he elected to proceed without representation. [6]
The opinion records that the earlier version contained an error and had been superseded by an opinion dated 10 November 2026. [7][8][9]
Legal Issues Presented
- Whether the First Appellant’s extended sentence was excessive or resulted in a miscarriage of justice because of comparisons with sentences imposed on other offenders. [1][10][11][12]
- Whether the Second Appellant’s sentences were excessive because his role, drug offending, and culpability were less serious than those of the First Appellant. [1][13][14][15]
- How the principle of comparative justice operates where co-accused have different culpability, criminal records, charges, pleas, or sentencing structures. [16][17][18][19]
Arguments of the Parties
First Appellant’s Arguments
- The sentences of other participants, including persons who received reduced sentences after guilty pleas, demonstrated that his sentence was excessive. [10][20]
- Thomas v HM Advocate and Armstrong v HM Advocate supported treating earlier sentences for the same or comparable offending as relevant to subsequent sentencing. [21][22][23]
- A sentence imposed on another participant under section 28 of the Criminal Justice and Licensing (Scotland) Act 2010 was said to involve comparable or greater offending and therefore supported reduction. [23][20]
- Sentences imposed in unrelated proceedings connected broadly with Operation Venetic were said to provide further comparative support. [11][24]
Second Appellant’s Arguments
- The five-year notional sentence for the drug offence was excessive because the offending involved a class C drug, lasted approximately 23 days, and involved a more limited role than that of the First Appellant. [13][14][25]
- The nine-year notional sentence for the murder conspiracy failed to reflect his peripheral role, the jury’s deletions, and the absence of actual harm. [14][25]
- The difference between the Appellants’ sentences was insufficient given their different roles, backgrounds, and levels of involvement. [25]
- The court should reduce the final extended sentence. [15]
Respondent’s Position
The opinion identifies the Respondent but does not provide a separate detailed account of its submissions.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Douglas v HM Advocate [2023] HCJAC 32; 2024 JC 31 | Comparative justice must be approached broadly, with the ultimate question being whether the sentence was excessive in all the circumstances. | The court adopted this approach and rejected fine comparisons with unrelated offenders. [26][27][28][19][29] |
| Thomas v HM Advocate [2014] HCJAC 66 | An earlier sentence for the same offence may be relevant when sentencing subsequently on the same charges. | The principle was advanced by the First Appellant but did not justify intervention on the facts. [21][22] |
| Armstrong v HM Advocate [2021] HCJAC 34; 2021 JC 227 | Co-accused convicted of the same offence should generally receive substantially similar sentences, subject to relevant differences. | The court stressed the word “substantially” and applied the principle as a broad, non-mathematical comparison. [23][16][30][31][28] |
| Simpkins v HM Advocate 1985 SCCR 30 | Participation in a team enterprise may require custody regardless of whether the offender’s role is leading or supporting. | The principle supported treating the Second Appellant as a significant participant despite his lesser role. [32][33] |
| Cosgrove v HM Advocate [2007] HCJAC 54; 2008 JC 102 | Different criminal records, reduced culpability, or radically different roles may justify different sentences. | The court treated the authority cautiously because it had not considered Simpkins. [17] |
| HM Advocate v Smith [2026] HCJAC 22; 2026 JC 268 | An earlier sentence may be disregarded where it was materially erroneous, manifestly inadequate, or excessive. | The case illustrated that comparative justice cannot require repetition of an erroneous sentence. [34][35][36] |
| McLachlan v HM Advocate [2026] HCJAC 14; 2026 JC 248 | Comparing sentences in separate cases provides limited guidance because cases differ in nature and gravity. | The court used this principle in rejecting comparisons with unrelated proceedings. [37][38] |
| Mitchell v HM Advocate [2011] HCJAC 10; 2012 JC 13 | Comparison with sentences in other cases gives limited guidance. | The principle was quoted as part of the court’s caution against direct case comparisons. [39] |
| Rauf and ors v HM Advocate [2019] HCJAC 72; 2020 SCCR 47 | It is rare for two cases to be sufficiently similar for direct comparison. | The court relied on this limitation in assessing comparative-justice arguments. [40][38] |
| Keel v HM Advocate [2025] HCJAC 47; 2026 JC 69 | Comparisons between cases are inherently limited. | The authority reinforced the court’s cautious approach. [38] |
| Miller v HM Advocate [2024] HCJAC 3; 2024 JC 253 | An error in a sentencing step does not by itself establish that the final sentence was excessive. | The court applied this principle when assessing the overall sentences. [41][42] |
| Huynh v HM Advocate [2026] HCJAC 6; 2026 JC 195 | An error in one or more sentencing steps does not necessarily make the final sentence excessive. | The authority supported examining the final sentence in the whole circumstances. [41][42] |
| HM Advocate v Fergusson [2024] HCJAC 22; 2024 JC 376 | For multiple offences, individual sentences may be totalled and then reduced for fairness and proportionality. | The court held that the sentencing judge had followed this approach, making concurrent sentences in other proceedings invalid comparators. [43][44][45][46] |
| McDade v HM Advocate 1997 SCCR 52 | Cumulative sentencing avoids offences being treated as committed “for free” or producing an excessive total through consecutive sentences. | The principle informed the cumulative sentencing method adopted in Fergusson. [47] |
Court's Reasoning and Analysis
Comparative justice requires co-accused convicted of the same offence generally to receive substantially similar sentences, but it does not require identical sentences. Differences in culpability, criminal records, personal circumstances, roles, aggravating and mitigating factors, and the precise nature of the offending may justify different outcomes. [16][17][18][48][49]
The court emphasised that sentencing comparisons cannot be mathematically precise. Fine comparisons between co-accused or offenders in other proceedings will not succeed unless they demonstrate that the appellant’s own sentence was excessive in the whole circumstances. [28][50][19][29]
As to the First Appellant, the court found no valid comparison with the other participants because they were not indicted on the same case, their conduct was not sufficiently similar, their criminal records differed, and their sentences involved guilty-plea discounts. [51][52]
The sentences imposed in the unrelated proceedings connected with Operation Venetic were also not true comparators. Their offences were only broadly similar, and their concurrent sentencing did not reflect the cumulative approach required by Fergusson. [53][54][44][45]
The court considered that, had the cumulative method been applied to those offenders, their adjusted totals might have been materially higher, further undermining the comparison with the First Appellant’s 13-year custodial term. [45][55]
As to the Second Appellant, the court accepted that the First Appellant had slightly higher culpability, but concluded that the Second Appellant remained a significant participant in a serious conspiracy to murder and had relevant convictions for violence and drug offending. [56][33]
The court held that neither the five-year notional sentence for the drug offence nor the nine-year notional sentence for the murder conspiracy was excessive. It also found no challenge to the judge’s application of the cumulative-sentencing approach. [46]
Holding and Implications
Both appeals were refused. The court was not persuaded that either extended sentence was excessive or resulted in a miscarriage of justice. [55][46]
The First Appellant’s 16-year extended sentence, including 13 years’ custody, and the Second Appellant’s 14-year extended sentence, including 11 years’ custody, therefore remained in force. [2][3][4][5][12][57]
The decision confirms that comparative justice is a broad consistency principle rather than a requirement for mathematically identical sentences; the decisive question is whether the sentence under appeal was excessive in all the circumstances. [28][50][29]
Alert