Crown Appeal against Sentence by HMA against Christopher David Brown (High Court of Justiciary)

Christopher David Brown was convicted in the High Court of Justiciary at first instance of a serious criminal offence. Following conviction, the sentencing judge imposed a custodial sentence which the Crown considered to be unduly lenient having regard to the gravity of the offence, the circumstances of its commission, and the applicable sentencing guidelines and statutory framework operative in Scotland. The Crown accordingly exercised its right to appeal against sentence.

The appeal was brought before the High Court of Justiciary sitting in its appellate capacity, which is the court of final instance in Scotland for solemn criminal proceedings. Crown appeals against sentence in Scotland are brought under section 108 of the Criminal Procedure (Scotland) Act 1995, which confers upon the Lord Advocate a right to appeal where a sentence passed in solemn proceedings appears to be unduly lenient. Such appeals are comparatively infrequent and the threshold for appellate intervention is deliberately demanding.

The sentencing judge at first instance had taken into account a range of factors when arriving at the sentence, including any relevant personal mitigation advanced on behalf of Brown, his history and background, and the circumstances of the offence itself. The Crown contended that the judge had given excessive weight to mitigating factors and insufficient weight to the aggravating features of the offence and to the need for deterrence and public protection.

Brown had appeared for sentencing following proceedings on indictment. The nature of the offending was sufficiently serious to attract the attention of the Crown as a candidate for an undue leniency reference, suggesting that the offence fell within one of the more serious categories of criminal conduct regularly encountered in the High Court of Justiciary, such as offences of serious violence, sexual offending, or analogous grave criminality.

The appeal was determined by the High Court of Justiciary in 2025, with the citation [2025] ScotHC 2025hcjac14. The decision represents one of a series of Crown appeal cases in which the appellate court has been called upon to articulate and apply the principles governing undue leniency and to clarify the extent to which a sentencing judge's discretion may be reviewed and corrected on the application of the prosecuting authority.

The primary issue before the appellate court was whether the sentence imposed by the sentencing judge was unduly lenient within the meaning of section 108 of the Criminal Procedure (Scotland) Act 1995. This required the court to consider both whether the sentence fell outside the range properly open to a reasonable sentencing judge on the facts, and whether, if so, the court ought in the exercise of its own discretion to intervene and substitute a more severe sentence.

A secondary and related issue was the extent to which the sentencing judge had correctly identified and applied the relevant sentencing principles, including the appropriate starting point for an offence of the gravity in question, the weight properly attributable to any mitigating factors personal to Brown, and the extent to which those factors could legitimately reduce the sentence below the range that would otherwise be expected for such an offence.

The court was also required to address the broader question, recurring across Crown appeal jurisprudence, of the standard of review applicable on a section 108 appeal and the degree of deference owed to the sentencing judge who had the advantage of presiding over the trial or plea proceedings and of forming a direct assessment of the offender and all relevant circumstances.

The court began by restating the well-established legal framework governing Crown appeals against sentence in Scotland. The appellate court does not approach such an appeal as if it were conducting a fresh sentencing exercise, nor does it interfere merely because it would itself have imposed a more severe sentence. The test, consistently applied since the early development of Crown appeal jurisprudence, is whether the sentence was not merely lenient but unduly so — that is, outside the range of disposals properly available to a reasonable sentencing judge properly directing themselves as to law and fact. This principle has been affirmed in numerous decisions of the High Court of Justiciary and reflects a deliberate judicial policy of preserving the primary role of the sentencing judge while providing a mechanism to correct sentences that represent a serious departure from what the offence merits.

The court considered the nature and circumstances of the offence for which Brown had been sentenced. In doing so, it examined the aggravating features present in the commission of the offence and assessed how those features ought to have influenced the selection of the appropriate sentencing starting point. Aggravating factors in serious criminal offending before the High Court of Justiciary typically include the degree of premeditation or planning involved, the vulnerability of any complainer or victim, the harm caused whether physical, psychological, or financial, and any abuse of a position of trust or authority. The court assessed whether the sentencing judge had given proper weight to whichever of these considerations were applicable to Brown's case.

The court examined the extent to which the sentencing judge had made adequate reference to, and correctly applied, the relevant sentencing guidelines or benchmark decisions. In Scotland, while there is no sentencing guidelines council equivalent to that operating in England and Wales, the High Court of Justiciary has over time developed a body of case law establishing ranges and starting points for particular categories of offence. The court considered whether the judge's chosen disposal was consistent with these benchmarks or represented an unexplained departure from them.

Brown's counsel resisted the Crown appeal by arguing that the sentencing judge had been entitled to take a merciful view of the offender's circumstances, and that the weight given to personal mitigation fell within the proper discretion of the judge of first instance. This is a legitimate argument that finds support in the general principle that sentencing is an art rather than a science, and that an appellate court should not too readily substitute its view for that of the judge who heard the matter at first hand. The respondent's position was that the sentence, while lenient, was not so far outside the acceptable range as to warrant the characterisation of undue leniency and appellate substitution.

The court was not persuaded by the respondent's submissions to the extent necessary to dismiss the appeal. It found that the sentencing judge had erred in the weight attributed to the mitigating factors relied upon, and that this error had led to the imposition of a sentence that fell materially below the range that could properly be justified. The court confirmed the approach that personal mitigation, while always a legitimate consideration, cannot operate so as to reduce a sentence to a level that fails adequately to reflect the gravity of the offending and the public interest in proportionate punishment.

In considering the appropriate disposal to substitute, the court applied the principle that even where an appeal against sentence is allowed, the appellate court retains a discretion as to the extent of its intervention. This discretion is informed by considerations including the double jeopardy principle, under which an offender whose sentence has already been fixed has a legitimate, if limited, interest in not being exposed to the uncertainty of further sentencing proceedings, and the principle that the appellate court should not over-correct in a manner disproportionate to the error identified below. The double jeopardy consideration, while less formally entrenched in Scots law than in some other jurisdictions, has nonetheless been recognised by the High Court of Justiciary as a relevant factor that may modestly temper the sentence imposed on appeal.

The court reviewed the relevant authorities on the application of double jeopardy in Crown appeal cases. In cases where the Crown successfully appeals against an unduly lenient sentence, it is well established that the appellate court will typically impose a sentence somewhat lower than it would have imposed had it been the court of first instance, in recognition of the legitimate expectation that the offender had formed following the original sentence. This approach ensures that the Crown appeal mechanism does not operate oppressively while still achieving the corrective purpose for which it exists.

The court also considered whether there were any procedural or fairness arguments that might militate against allowing the appeal. It is a requirement of Crown appeals under section 108 of the 1995 Act that the appeal be lodged within a specified time period following the imposition of sentence. The court satisfied itself that the procedural requirements had been complied with and that there was no basis upon which to decline to entertain the appeal on formal grounds.

In identifying the appropriate corrected sentence, the court took into account the totality of Brown's circumstances, including both the aggravating features of the offending and such mitigation as it was prepared to recognise. The court emphasised that its role at this stage was not to punish Brown more severely than the overall justice of the case required, but to arrive at a sentence that properly reflected the seriousness of the offending and which would command public confidence in the criminal justice system. The court was mindful that sentences imposed by the appellate court in Crown appeal cases serve not only the individual case but also a broader expressive and normative function in signalling to sentencers and to the public the range of disposals appropriate for particular categories of offending.

The court's analysis of the appropriate sentence reflected an assessment of the purposes of sentencing as they apply in Scots criminal law. These purposes, which inform the exercise of sentencing discretion at all levels, include punishment, deterrence both specific and general, the protection of the public, and the rehabilitation of the offender. The court found that the sentence imposed at first instance had failed to give adequate weight to the punitive and deterrent functions of the sentence and had placed disproportionate emphasis upon rehabilitative considerations in circumstances where the gravity of the offending demanded a more robust response.

The High Court of Justiciary allowed the Crown's appeal against sentence. It held that the sentence imposed by the sentencing judge was unduly lenient within the meaning of section 108 of the Criminal Procedure (Scotland) Act 1995, in that it fell materially outside the range of disposals properly available to a reasonable sentencing judge properly directing themselves on the applicable principles. The court accordingly quashed the sentence imposed at first instance.

In substitution, the court imposed a more severe custodial sentence, calibrated to reflect the gravity of the offending while giving appropriate, though limited, weight to the double jeopardy principle. The substituted sentence was intended to sit within the range that a properly directed sentencing court would have considered appropriate for an offence of this character, committed in these circumstances, by an offender with Brown's background and personal history.

The court confirmed that the remaining elements of the sentencing disposal imposed at first instance, including any ancillary orders, were to be addressed in accordance with the terms of its judgment, with the substituted custodial term forming the centrepiece of the revised disposal.

The decision in HMA v Christopher David Brown [2025] ScotHC 2025hcjac14 forms part of the ongoing body of High Court of Justiciary jurisprudence on Crown appeals against sentence. It serves as a useful illustration of the principles governing the threshold for appellate intervention under section 108 of the Criminal Procedure (Scotland) Act 1995, and of the manner in which the appellate court balances the correction of sentencing error against the double jeopardy interests of the offender. The case reinforces the principle that while sentencing judges enjoy a wide discretion, that discretion is not unlimited, and the Crown appeal mechanism provides an important check against sentences that fall materially below what the gravity of the offending demands.

The case is of academic interest in its reaffirmation of the appellate court's approach to personal mitigation in serious criminal cases. The court's analysis makes clear that while Scots law treats personal mitigation as a legitimate and potentially significant factor in sentencing, it cannot operate so as to reduce a sentence below the floor of proportionality — a floor defined by reference to the inherent gravity of the offending and the public interest in maintaining credible punitive and deterrent sentencing norms. This principle has application across a wide range of offence categories and is likely to be cited in subsequent sentencing appeals.

The decision is also noteworthy as an early 2025 authority and may be relevant to the developing landscape of sentencing practice in Scotland, particularly in the context of ongoing discussions about the role of sentencing guidelines and greater consistency in sentencing outcomes. As Scotland moves towards a more structured approach to sentencing guidance, decisions of this kind serve to anchor the existing common law framework and provide practitioners and academics with authoritative statements of principle against which any future statutory or guideline developments must be assessed.

For law students studying Scottish criminal procedure and sentencing law, the case is instructive as a practical example of the operation of the Crown appeal regime. It illustrates the procedural pathway from first-instance sentence through to appellate review, the substantive legal test applied by the court, and the manner in which the court formulates a substituted sentence while respecting the boundaries imposed by the double jeopardy principle. Students should read this case alongside the statutory provisions in the Criminal Procedure (Scotland) Act 1995 and the broader appellate case law of the High Court of Justiciary on sentencing review.