Generate a structured brief — facts, issues, held, reasoning, and significance — for this case in seconds. Or browse the verbatim judgment via the source links below.
Full judgment transcript
BAILII · Verbatim mirror
delivered by LORD BECKETT, the LORD JUSTICE CLERK
in
CROWN APPEAL AGAINST SENTENCE
By
HIS MAJESTY'S ADVOCATE
Appellant
against
MICHAEL PATRICK HARVEY
Respondent
Appellant: Keenan, KC (Sol-Adv) AD; the Crown Agent
Respondent: Findlay KC; John Pryde & Co SSC
________________________
22 January 2026
Introduction
[1]
This is a Crown appeal against a sentence of 9 years' imprisonment imposed on the
respondent on 18 July 2025 after he was found guilty in the High Court of Justiciary at
Glasgow of two charges including a sustained assault amounting to attempted murder. The
2
Crown maintain that the sentence was unduly lenient given the repetition of the
respondent's actions, the period over which the assault occurred and, particularly, its
consequences for the complainer. Secondly, the Crown state that the judge erred in
refraining from passing an extended sentence.
The charges
[2]
The respondent was convicted of the following:
"(001) on 1 October 2023 at Waterloo Street, Accident and Emergency
Department, Glasgow Royal Infirmary, Castle Street, and Room 305, Ibis Hotel, West
Regent Street, all Glasgow you MICHAEL PATRICK HARVEY did assault [the
female complainer], your partner, ... and did:
a)
at said Waterloo Street, Glasgow, act in an aggressive manner towards
her, shout and swear at her, pull her from a window ledge there, throw
her to the ground, repeatedly seize and throw her to the ground, repeatedly
seize her by the body, pin her against a bus stop and strike her head against
said bus stop, seize her by the body and drag her along the ground, cause her
head to repeatedly strike the ground, ... throw an object at her and thereafter
repeatedly seize and throw her to the ground, cause her head to repeatedly
strike the ground and cause her to lose consciousness;
... and
c)
at said Room 305, Ibis Hotel, West Regent Street, Glasgow, strike her on
the head and body and cause her to lose consciousness,
and all this you did to her severe injury, permanent disfigurement, permanent
impairment and to the danger of her life and did attempt to murder her;
and it will be proved in terms of section 1 of the Abusive Behaviour and Sexual
Harm (Scotland) Act 2016 that the aforesaid offence was aggravated by involving
abuse of your partner or ex-partner;
(007) on 1 October 2023 at Room 305, Ibis Hotel, West Regent Street, Glasgow
you MICHAEL PATRICK HARVEY, having committed the crime libelled in
Charge (001) hereof and being conscious of your guilt in respect thereof, did
pretend that [the complainer], your partner,...had sustained her injuries by falling in
a shower, the truth being that you knew you had committed said crime, and this you
did to conceal, alter or destroy evidence in connection with said crime and to avoid
detection, arrest and prosecution in respect thereof and with intent to defeat the ends
of justice and you did thus attempt to defeat the ends of justice."
3
The jury, whose verdict on both charges was unanimous, acquitted the respondent of part
(b) of charge 1 alleging that he forced the complainer to leave the Accident and Emergency
Department of Glasgow Royal Infirmary without obtaining medical attention. The
implication is that the jury considered that it was her decision to leave, and we can
understand why they reached it given the content of the hospital CCTV footage.
[3]
On charge 1 the judge imposed a sentence of imprisonment for 9 years including one
year for the domestic aggravation. On charge 2, he imposed a concurrent sentence of 2
years' imprisonment. The Crown withdrew certain other charges.
The circumstances of the offences
[4]
The complainer did not testify, and the Crown established its case through CCTV
evidence capturing much of what was alleged, supplemented by the testimony of witnesses
to certain events.
[5]
The parties were at the early stages of an affair and had met at a hotel in Glasgow
city centre, checking in shortly after midnight. They drank alcohol and played pool in the
bar area, returned to their room and then left the hotel shortly after 02:00 hours. From
around 02:25, the respondent became aggressive and shouted and swore at the complainer
who was sitting down, close to the ground on the bottom ledge of a shop front window.
Whilst in his report the judge used the words of the libel of charge 1 to describe what
occurred, we note from our viewing of the recordings, coinciding with the language used in
the Crown's written submissions, that the respondent appeared to pull the complainer up
and drop her, causing her to fall on the pavement. He then picked her up, pinned her
against a bus stop and may have struck her head against it. He seized her by the body and
dragged her along the pavement, causing her head to strike the pavement repeatedly. When
4
she was again sitting on the ground, he threw an object at her before repeatedly seizing hold
of her and causing her to fall to the ground by letting her go as she was standing, such that
her head repeatedly struck the ground and she lost consciousness.
[6]
Two women stopped in a car and came to assist, finding that the complainer had
blood on the left side of her head. The respondent was frantic about the situation, and they
called the police, who attended at 03:09, by which time the respondent and complainer had
crossed Waterloo Street where the complainer fell. The police spoke to both, concluded that
no crime had been committed and took the complainer and respondent to hospital, leaving
them at Accident and Emergency at 03:47. Whilst the respondent sought to check-in the
complainer, she fell to the ground as she tried to sit down in the waiting area, striking her
head. They left 25 minutes later without the complainer being seen.
[7]
They took a taxi back to the hotel, arriving there at 04:35. As they got out of the taxi,
the complainer fell and struck her head on the ground. The respondent then carried her into
the hotel. The recording shows that she had blood on the back of her head and her hair was
soaked in blood. They took a lift and entered their room. At about 05:00 another guest
heard loud banging and a male voice making a violent threat and further banging about an
hour later. The same male voice was heard shouting. A second guest heard a male voice
and thought he was punching a door and then throwing himself at the door. He shouted
words including "throttle," "fucking" and "head" at a time when there was banging.
[8]
The respondent left the room at 06:20, returned and banged on the door before
getting a key card from reception and returning to the room at 06:24. He bought certain
items in the dining area at 07:19 and was helped to re-enter his room by staff.
[9]
The complainer and respondent did not check out in time and when management
investigated what was happening, they learned that the respondent had told staff that the
5
complainer had collapsed. A manager found the complainer lying on the floor and the
respondent said he had found her lying on the floor of the shower and had pulled her out
and covered her. She did not appear wet and she was unconscious.
[10]
Many pertinent facts were established in a joint minute. The complainer was taken
by ambulance to the Queen Elizabeth University Hospital. It was agreed fact that she had
sustained certain injuries: nasal fracture; acute minimal depressed fracture through anterior
wall; clot on right side of brain; clot on left side of brain; posterial fossa (mid brain injury);
subtle fracture to side of skull; fracture to spine; broken clavicle right; broken T1 bone; and
pulmonary embolism � upper lung lobe.
[11]
The complainer underwent a decompressive craniectomy whereby part of her skull
on the left side was removed to relieve pressure. The blood clot on the left was evacuated
and the wound closed. There was no treatment to the blood clot on the right side. In
November 2023 the complainer underwent a cranioplasty to reconstruct her skull following
the decompressive craniectomy. She was still in Gartnavel Hospital on 7 March 2024.
Victim information
[12]
The complainer's sister prepared a statement on her behalf. The complainer has had
to learn to walk and talk again after her repeated operations. She has a deficit in her senses
of taste and smell. She has a visible dent in her head and a large surgical scar on her
stomach. She had been an active full-time mother of 7 school-age children but is now
dependent on carers for self-care and child-care. At times, her children have to stay with her
sister. The complainer suffers from seizures, headaches, needs a lot of sleep and hardly goes
out. She can no longer read and write. She suffers panic attacks, is afraid and her life has
6
become very limited. The judge correctly characterised the consequences of the assault as
life-changing for the complainer.
Previous convictions
[13]
The respondent has a significant number of previous convictions dating from 2009.
[14]
Most of his convictions relate to crimes of disorder, including impeding police
officers in the execution of their duty. He has road traffic convictions, drugs convictions and
a conviction for theft by housebreaking. He has broken bail conditions. He has twice served
periods of imprisonment following appearance on indictment:
� 20 months in 2018 for dangerous driving along with short concurrent sentences for
offences including having a knife in a public place and a drug trafficking offence
(ecstasy)
� consecutive 12-month sentences for having a knife in a public place and a drug
trafficking offence (heroin).
He was subject to a community payback order supervision requirement imposed for driving
whilst disqualified when he assaulted the complainer.
[15]
We note that he has no convictions carrying a domestic abuse aggravation or
recorded as constituting domestic abuse. This has some significance given the basis on
which the reporting social worker came to propose the making of an extended sentence.
The circumstances of the respondent and justice social work report
[16]
The respondent explained that he and the complainer had argued when she was
unwilling to provide money for her son when he called to ask her for help. His version of
events as captured on CCTV involved both minimisation and denial. The social worker
7
proposes a high-level of planning which, frankly, we find unconvincing. So did the judge,
who properly rejected the proposition in his sentencing remarks. We consider that the
respondent showed some, limited, victim empathy.
[17]
The respondent had a positive upbringing and still has a good relationship with his
parents but began offending at 18. He has had three long term relationships. His current
partner is still supporting him. They have two children together who are now being cared
for by their maternal grandmother. There have been five police call-outs amid concerns of
domestic conflict.
[18]
The respondent has ADHD and left school at 15 with no qualifications. He had
several jobs before becoming self-employed, doing house renovations until he was
remanded in these proceedings.
[19]
The respondent's physical health is good, but he has had some mental health issues.
He has had prescription medicines for ADHD and to help him sleep. He reports a diagnosis
of anxiety and depression, with a prescription no longer available to him on remand. He
sought to end his life by cutting his throat whilst remanded. Alcohol abuse has not been a
problem, but drugs have been. He had been drinking and had taken both cocaine and street
Valium when he assaulted the complainer.
[20]
In assessing the risk of violence presented by the respondent, the social worker
construed offences under section 41 of the Police (Scotland) Act 1967 and section 49 of the
Criminal Law (Consolidation) (Scotland) Act 1995 as crimes of violence. That is not entirely
apt. The former offence was constituted by any of the following actions: assaulting,
resisting, obstructing, molesting or hindering police officers in the execution of their duty.
The latter offence is met simply by having a knife in a public place without reasonable
excuse. It can be contrasted with the offence in section 47 of the Criminal Law
8
(Consolidation) (Scotland) Act 1995 which penalises having an offensive weapon in a public
place. An offensive weapon is one made or adapted to cause personal injury or intended by
the carrier to be used for causing personal injury. The social worker erred in characterising
the s 49 convictions as relating to offensive weapons.
[21]
In assessing risk, the social worker anticipated a high likelihood of further domestic
offending by conflating the police call-outs for domestic incidents as coming from two
relationships, with his current partner and with the complainer, when the narrative in the
JSWR is that there were call-outs only in his relationship with his current partner. A later
conclusion that there have been difficulties across multiple relationships according to Police
Scotland and Children and Families Social Work is not supported by the preceding content
of the report. The social worker proposed that the judge should consider making an
extended sentence, at least in part, because of "a history of weapon use and violent
offences." For the reasons we have explained, this is something of a gloss.
Plea in mitigation before the judge
[22]
Senior counsel explained that a good friend of the respondent had been murdered
not long before these offences and it had a considerable impact on him and increased his
drug-taking. The respondent regretted what he did.
Reasons for the sentences imposed
[23]
The judge recognised the full scope of what the respondent had done and its full
consequences. He carefully noted what the respondent's criminal record did (and did not)
contain. He rejected that the offence had been planned, as the social worker proposed, but
properly found the respondent's culpability to be high. There was an exceptionally high
9
level of harm. He recognised that the respondent's previous convictions and being subject
to a CPO were aggravating circumstances. He considered the respondent's intoxication
aggravating. He found no real mitigation in either the content of the report or what was
said by senior counsel. Taking account of the gravity of the respondent's conduct, but also
the sentencing principle that sentences should be no more severe than necessary, he
imposed the sentences he did and, properly, backdated them to the start of the respondent's
remand. He made a non-harassment order of indefinite duration in favour of the
complainer.
Submissions in the appeal
Crown
[24]
Whilst the respondent's conduct was not continuous it was prolonged and there was
repetition. He repeatedly dropped the complainer on the pavement, such that she struck her
head on the ground. He pulled her about and dragged her. The pattern of bloodstaining
and damage to a kettle supported the inference that the respondent assaulted the
complainer again in the hotel room, as the jury determined in convicting of part (c) of the
charge. The complainer sustained serious injuries requiring repeated surgical intervention.
The treating neurosurgeon's evidence was that the respondent's brain injury was severe and
life-threatening. He had not expected her to survive. She had needed a long period of
rehabilitation in hospital following her discharge from intensive care. The serious
consequences for the complainer were spelled out in her victim statement.
[25]
The judge did not properly apply the "Principles and purposes of sentencing" and
"Sentencing process" guidelines. He had failed to grasp the full extent of the respondent's
culpability given the complainer's vulnerable condition, the repeated acts of violence and
10
the period over which they were inflicted. The complainer did not appear to be intoxicated
on the CCTV footage, and the respondent had impeded the possibility of earlier medical
attention by misleading passers-by and the police. He should have told the police she had
sustained head injuries. The respondent was culpable for causing all the complainer's
injuries and their consequences because he had caused her to be in such a condition that she
was stumbling and falling. The judge erred in considering otherwise.
[26]
The court should apply the test in HM Advocate v Bell 1995 SCCR 244, find it met,
impose a more severe sentence to protect the public, and provide guidance for sentencers
generally. The judge demonstrated in his report that he misdirected himself:
� at para 43 in his discussion of the respondent's culpability for falls following the
initial assault
� at para 44 in observing that it was not inevitable that the jury would have found
the respondent's assault to be murderous
� at para 45 in his observations about the assault in para (c)
� at para 46 in observing that the initial assault was spontaneous, that the
respondent did not hit the complainer and that no weapon was involved
� at para 47 in suggesting that we would be assisted in resolving the appeal by
viewing the CCTV footage.
[27]
Certain sentencing precedents support the view that the sentence imposed on charge
1 was unduly lenient: HM Advocate v Budge[2025] HCJAC 27, 2025 JC 368; Shankly v HM
Advocate 17 December 2024 (unreported) and HM Advocate v Cairney 9 August 2024, an
unreported first instance decision. Given the contents of the JSWR, the judge should have
imposed an extended sentence. It was his responsibility to determine if the statutory criteria
11
were met but he had underestimated risk by focussing on the absence of directly relevant
previous convictions.
Respondent
[28]
Senior counsel reminded us that he had conducted the respondent's defence and
acknowledged that the verdict meant that the jury attributed responsibility for causing all
the harm that befell the complainer. The court should understand that the ledge on which
the complainer had sat was very low to the ground. The hospital CCTV showed the
respondent repeatedly and unsuccessfully seeking to get immediate medical attention for
the complainer, rather contradicting the Crown's proposition, itself speculative, that the
respondent had deliberately sought to obstruct her getting medical attention for selfish
reasons. The judge provided a clear and accurate explanation of the evidence in his report.
In both his sentencing remarks and his report, he demonstrated his careful and sound
reasoning in passing sentence. He plainly took account of all material considerations. The
Crown was doing little more than expressing disagreement and dissatisfaction with the
sentence passed and offered no justification for the contention that the sentence was unduly
lenient.
Decision
[29]
There can be no doubt that the respondent caused the complainer extremely serious
harm and that his culpability was considerable. The complainer's life and, we infer, the lives
of her children and other members of her family, have been fundamentally changed by the
consequences of what the respondent did. The extreme harm caused was an important
12
feature and we take full account of it in determining the question we require to answer:
whether the sentence was unduly lenient.
[30]
Parties agreed that we should apply the approach of the Lord Justice General (Hope)
in Bell:
"It is clear that a person is not to be subjected to the risk of an increase in sentence
just because the appeal court considers that it would have passed a more severe
sentence than that which was passed at first instance. The sentence must be seen to
be unduly lenient. This means that it must fall outside the range of sentences which
the judge at first instance, applying his mind to all the relevant factors, could
reasonably have considered appropriate. Weight must always be given to the views
of the trial judge, especially in a case which has gone to trial and the trial judge has
had the advantage of seeing and hearing all the evidence. There may also be cases
where, in the particular circumstances, a lenient sentence is entirely appropriate. It is
only if it can properly be said to be unduly lenient that the appeal court is entitled to
interfere with it at the request of the Lord Advocate."
[31]
Scottish sentencing practice is now incorporated in the first two guidelines issued by
the Scottish Sentencing Council under the Criminal Justice and Licensing (Scotland) Act
2010 section 3 and approved by the court under s 5: "Principles and purposes of sentencing"
and "The Sentencing process." A sentencer must have regard to applicable sentencing
guidelines, s 6(1). If a sentencer decides not to follow such guidelines, he or she must give
reasons, s 6(2).
[32]
"Principles and purposes" states as a core principle that sentences must be fair and
proportionate. It requires that a sentencer considers all relevant factors, including
seriousness, impact on those affected by a crime and the circumstances of the offender. It
also requires that sentences should be no more severe than necessary to achieve the
appropriate purposes of sentencing in each case. A sentencer should give reasons as clearly
as the circumstances permit. Sentencing decisions must be made according to the law and
having regard to any applicable guidelines. There should be no discrimination. Sentencing
decisions should treat similar cases in a similar way.
13
[33]
This guideline identifies the primary purposes of sentencing as: protection of the
public; punishment; rehabilitation; giving an offender an opportunity to make amends; and
expressing disapproval of offending behaviour.
[34]
"Sentencing process" offers a detailed route map of how a sentence might be reached
but the process starts with ascertainment of the seriousness of the offence. It is determined
by the level of culpability (or blameworthiness) and the degree of harm caused. The
guideline states in its introduction:
"C.
The sentencing decision may be made swiftly and in many cases the court
may appear to consider some or all relevant factors at the same time. Where a court
does not expressly take any individual step, that does not in itself amount to a
decision not to follow the guideline.
D.
A court may choose to explain aspects of a sentence it has passed by reference
to a specific part of this guideline. It does not have to give full reasons as to how
each part of the process has affected the sentence."
[35]
The Lord Justice Clerk (Dorrian), Chair of the Sentencing Council for Scotland when
the first four guidelines were approved, explained in delivering the opinion of the court in
Voted-best comments help future students and feed Caselaw's AI study tools.
This case is reproduced verbatim from the public judgment published by The National Archives under the UK Government's Open Government Licence v3.0. If you appear in this case and believe it should not be published — for example because your conviction was quashed on appeal, you have statutory anonymity, or for other privacy reasons — request removal here.