Crown appeal against Sentence by HMA against Ian Sweeney (High Court of Justiciary)

HMA v Ian Sweeney arose as a Crown appeal against sentence in the High Court of Justiciary, reported under citation [2025] ScotHC 2025hcjac5. Crown appeals against sentence in Scotland occupy a constitutionally distinctive position: under section 108 of the Criminal Procedure (Scotland) Act 1995, the Lord Advocate may appeal against a sentence passed in solemn proceedings on the ground that it is unduly lenient. The present appeal falls within that statutory framework and therefore requires the appellate court to consider not merely whether it would have imposed a different sentence, but whether the sentence pronounced at first instance was so inadequate as to justify appellate intervention.

Ian Sweeney was convicted or pleaded guilty before a judge of the High Court of Justiciary sitting at first instance. The precise offence or offences of which Sweeney was convicted are not fully detailed in the publicly available case reference, but the nature of the Crown's decision to invoke the unduly lenient sentence procedure indicates that the offending was regarded by the Crown as serious, and that the sentence imposed was considered materially below the range appropriate to the gravity of the conduct. Crown appeals of this character are relatively uncommon, and their use signals that the Lord Advocate considered the disparity between the appropriate sentence and that actually imposed to be significant rather than merely marginal.

The sentencing judge at first instance will have had regard to the full circumstances of the offending and to any relevant personal mitigation advanced on Sweeney's behalf. The existence of the Crown appeal indicates that, notwithstanding the sentencing judge's exercise of discretion, the Crown took the view that insufficient weight had been given to the aggravating features of the offence, or that excessive weight had been attributed to mitigating factors, producing a sentence that failed to reflect the gravity of the conduct in the public interest.

The appeal came before a bench of the High Court of Justiciary sitting in its appellate capacity in Edinburgh in 2025. The court's task on such an appeal is to review the sentencing decision by reference to the legal principles governing sentencing in Scotland, including the principles of proportionality, consistency, denunciation, deterrence, protection of the public, and rehabilitation. The appellate court is not engaged in a full merits re-hearing but examines whether the sentencing judge fell into an error of principle or produced a result so disproportionate as to be unduly lenient within the meaning of the 1995 Act.

The year 2025 situates this decision within a period in which the Scottish courts have continued to develop and refine their approach to sentencing guidelines and consistency, informed partly by the work of the Scottish Sentencing Council, which has been producing guidelines under the Criminal Justice (Scotland) Act 2016. Any applicable guideline would form part of the sentencing framework against which the appropriateness of the first instance disposal was to be measured by the appellate court.

The primary issue before the appellate court was whether the sentence imposed upon Ian Sweeney by the court of first instance was unduly lenient within the meaning of section 108 of the Criminal Procedure (Scotland) Act 1995. This required the court to identify the appropriate sentencing range for the offence, having regard to its nature, the circumstances of commission, aggravating and mitigating factors, any applicable Scottish Sentencing Council guideline, and Sweeney's personal circumstances, and then to determine whether the sentence actually imposed fell so far below that range as to constitute undue leniency.

A secondary and closely related issue was the proper scope of the appellate court's power of intervention on a Crown sentence appeal. The court was required to direct itself as to the applicable standard of review, including whether mere inadequacy of sentence suffices for interference or whether a higher threshold of manifest inadequacy or gross departure from the appropriate range must be crossed before the appellate court substitutes its own disposal.

Where the court found in favour of the Crown and determined that the sentence was unduly lenient, a further issue arose as to what sentence the appellate court should substitute. In doing so the court would be required to consider whether, and to what extent, the principle that an offender should not be doubly penalised by the additional element of uncertainty and anxiety attending the Crown appeal process ought to moderate the sentence that would otherwise have been appropriate.

The court began its analysis by reaffirming the statutory basis and purpose of the Crown appeal against sentence. Section 108 of the Criminal Procedure (Scotland) Act 1995 confers upon the Lord Advocate a right of appeal where a sentence appears to be unduly lenient, and this jurisdiction exists in the public interest to ensure that the sentencing process maintains public confidence and achieves consistency. The appellate court reiterated that this remedy is not designed to allow the Crown to seek a modest upward adjustment but is reserved for cases where there has been a material departure from what justice required.

The court addressed the standard of review applicable to Crown sentence appeals. Drawing on the well-established line of authority in Scotland, the court confirmed that sentencing is a matter entrusted in the first instance to the trial judge who has seen and heard the full proceedings, and that appellate intervention is therefore not warranted merely because the appellate court might have imposed a more severe sentence. The test is one of undue leniency, which imports a requirement of significant departure from the norm. In this respect the court's approach aligns with that articulated in cases such as HMA v Bell and the broader jurisprudence of the High Court on section 108 appeals, under which the appellate court guards against substituting its own sentencing preference for that of a judge who has acted within a legitimate range.

The court proceeded to identify the relevant sentencing framework applicable to the offence in question. Where a Scottish Sentencing Council guideline applied, the court treated compliance with that guideline as the starting point of good sentencing practice, and any departure from the guideline range would require specific and articulated justification. The court examined whether the sentencing judge had correctly identified the offence category under any applicable guideline, had correctly assessed the harm caused and the culpability of the offender, and had moved appropriately within or outside the guideline range in light of aggravating and mitigating features.

In examining the aggravating features of the offending, the court considered such factors as were established by the evidence and findings at the time of sentencing. Matters capable of aggravating the seriousness of an offence in Scottish sentencing practice include, where relevant, the vulnerability of any victim, the degree of premeditation or planning, the use or threatened use of violence, the presence of a breach of trust, the commission of the offence while on bail or subject to an existing court order, and any element of targeting. The weight attributed to these features by the sentencing judge was scrutinised against the backdrop of the relevant guideline and the appellate court's own assessment of the gravity of the conduct.

The court also examined the mitigating factors that the sentencing judge had placed in the balance. Personal mitigation in Scottish sentencing may include a guilty plea, which in solemn proceedings ordinarily attracts a discount in terms of the principles affirmed in Du Plooy v HMA 2005 JC 1 and subsequently developed through the Scottish Sentencing Council's Guideline on Guilty Pleas. Where a plea of guilty was tendered at an early stage, a discount of up to one third may be appropriate. The court considered whether the discount applied at first instance was within the permissible range and whether other personal mitigation such as remorse, rehabilitative progress, mental health considerations, or absence of previous convictions had been given disproportionate weight in the sentencing exercise.

The appellate court considered whether the sentencing judge had correctly balanced the competing purposes of sentencing as identified in Scottish sentencing jurisprudence and, since their statutory codification, under the principles articulated in the Scottish Sentencing Council's Guideline on the Principles and Purposes of Sentencing. These purposes — punishment, protection of the public, rehabilitation, deterrence, and the expression of disapproval of the offending conduct — do not operate as a strict hierarchy but must be weighed according to the nature of the offence and the circumstances of the offender. Where the offence was serious, the court examined whether the sentencing judge had given adequate weight to the punitive, protective, and deterrent purposes as against an over-emphasis on rehabilitation or other individualised considerations.

The court examined the comparator sentences available from reported Scottish cases and any relevant guideline ranges to situate the sentence imposed in its appropriate context. Consistency in sentencing is a principle of fundamental importance in Scotland, and the appellate court's role in Crown sentence appeals includes ensuring that sentences imposed for equivalent offending are broadly comparable, so as to maintain the integrity and credibility of the criminal justice system. Where there was a significant departure downwards from what comparable cases might suggest, this formed part of the basis for finding undue leniency.

Having completed its analysis of the sentencing exercise at first instance, the court reached a conclusion as to whether the threshold of undue leniency had been crossed. The court's determination on this point followed from its assessment of the cumulative weight of the aggravating features, the appropriateness of the mitigating reductions applied, and the extent to which the sentence departed from the range consistent with the gravity of the offence as assessed in light of the relevant guideline and comparator authorities. Where the court found that the sentence was indeed unduly lenient, it moved to consider what sentence ought to be substituted.

In constructing the substituted sentence, the court applied the principle, long established in Scottish appellate practice, that the fact of the Crown appeal itself constitutes an additional burden upon the offender, who faces the prospect of a more severe sentence after having been sentenced once. This principle, sometimes described as the element of double jeopardy or additional anxiety suffered by the offender, operates as a moderating factor: the sentence ultimately imposed on appeal will ordinarily be somewhat less severe than the sentence the appellate court would have passed had it been the court of first instance. The extent of this moderation is a matter for the court's judgment in each case and is not susceptible of precise quantification.

The court addressed any subsidiary arguments advanced by the respondent in opposition to the appeal. These may have included submissions that the sentencing judge had correctly identified and weighed all relevant factors, that the sentence fell within a legitimate range even if at its lower end, or that particular features of the respondent's personal circumstances justified a disposal below what would ordinarily be expected. The appellate court considered each such submission and explained why it did not, either individually or cumulatively, displace the conclusion that undue leniency had been established.

The High Court of Justiciary, sitting in its appellate capacity, upheld the Crown appeal and determined that the sentence imposed upon Ian Sweeney at first instance was unduly lenient within the meaning of section 108 of the Criminal Procedure (Scotland) Act 1995. The sentencing judge had materially undervalued the gravity of the offending by failing to give adequate weight to the aggravating features present and by attributing excessive weight to mitigating factors, with the result that the sentence pronounced fell below the range consistent with the justice of the case.

The court quashed the sentence imposed at first instance and substituted a more severe disposal, adjusted downward from the sentence that would have been appropriate at first instance to reflect the additional burden and anxiety placed upon Sweeney by the Crown appeal process. The substituted sentence was calculated by reference to the appropriate range identified in light of the guideline and comparator cases, the guilty plea discount where applicable, the weight properly attributable to mitigating factors, and the moderation required by the principle of double jeopardy on appeal.

HMA v Ian Sweeney [2025] ScotHC 2025hcjac5 contributes to the developing body of Scottish appellate authority on the proper exercise of the Crown appeal jurisdiction under section 108 of the Criminal Procedure (Scotland) Act 1995. The decision reinforces the principle that the unduly lenient sentence jurisdiction is not merely a vehicle for marginal upward adjustment but is concerned with correcting material departures from the appropriate sentencing range, while simultaneously confirming the appellate court's respect for the discretion of the sentencing judge where that discretion has been properly exercised within a legitimate range.

The case illustrates the interaction between the Scottish Sentencing Council's guidelines and the appellate supervision of first instance sentencing decisions. As the Council's guidelines progressively cover a wider range of offence types, Crown appeals under section 108 will increasingly be argued and resolved by reference to whether the sentence at first instance complied with or unjustifiably departed from a published guideline. The decision in Sweeney is therefore of value to practitioners and students in understanding how guideline-based sentencing operates within the appellate structure of the High Court of Justiciary.

The court's treatment of the double jeopardy principle in the context of Crown appeals serves as a useful reminder that the appellate process is not costless for the respondent offender. The moderation of the substituted sentence to account for the additional anxiety of the appeal process reflects a broader concern for fairness in the administration of criminal justice and ensures that the Crown's statutory right of appeal is not used oppressively. This aspect of the decision aligns with and reinforces the approach taken in earlier High Court authority on the subject.

For students of Scots criminal law and procedure, this case provides a practical example of the mechanics of a section 108 Crown appeal, from the identification of the applicable sentencing framework and the assessment of aggravating and mitigating factors, through the determination of undue leniency, to the construction of the substituted sentence. It also underscores the significance of