Crown Appeal Against Sentence by His Majesty's Advocate against STP (High Court of Justiciary)

This case concerns a Crown appeal against sentence brought by His Majesty's Advocate before the High Court of Justiciary in Scotland in 2025, bearing the citation [2025] ScotHC 2025hcjac51. The respondent, identified by the anonymised initials STP in accordance with standard Scottish practice protecting the identity of certain individuals in criminal proceedings, had been sentenced at first instance by a judge of the High Court of Justiciary or, potentially, a sheriff court judge exercising solemn jurisdiction. The Crown, dissatisfied with the custodial or non-custodial disposal imposed, exercised its statutory right to appeal on the ground that the sentence was unduly lenient.

Crown appeals against sentence in Scotland are competent under section 108 of the Criminal Procedure (Scotland) Act 1995, which empowers the Lord Advocate to appeal against a sentence imposed in solemn proceedings where it appears that the sentence is unduly lenient. This mechanism reflects the legislature's recognition that the public interest in appropriate punishment requires a corrective judicial avenue beyond the accused's own right of appeal. The proceedings before the appeal court therefore placed the sentencing judge's disposal under scrutiny, with the appeal court tasked with determining whether the original sentence fell outside the range properly open to the sentencing judge on the facts before the court.

The respondent STP had been convicted of one or more serious criminal offences in Scotland. Given the anonymisation of the respondent's identity and the absence of detailed public reporting at the time of this reconstruction, the precise nature of the offences cannot be stated with certainty. However, the involvement of the High Court of Justiciary on appeal, and the Crown's election to bring a section 108 appeal, strongly suggests that the underlying offending was of a serious character — typically involving offences such as serious assault, sexual offending, drug supply, or analogous conduct attracting significant custodial penalties. The sentencing judge at first instance imposed a sentence which the Crown considered did not adequately reflect the gravity of the offending, the need for deterrence, or the protection of the public.

The sentencing judge at first instance will have considered the full range of relevant material, including any criminal history of the respondent, any reports obtained from social work or other agencies, and any mitigating factors personal to STP such as age, mental health, personal circumstances, or expressions of remorse. The sentence ultimately imposed was one which, from the Crown's perspective, failed to give sufficient weight to the aggravating features of the case or to the established sentencing guidelines applicable in Scotland, thereby rendering the disposal unduly lenient within the meaning of the 1995 Act.

The appeal was heard by a bench of the High Court of Justiciary sitting in its appellate capacity. The court's function was not to substitute its own preferred sentence but to assess whether the original sentencing judge's disposal was one which no reasonable sentencing judge, properly directing himself or herself, could have reached — or, more precisely in the Scottish formulation, whether the sentence was unduly lenient having regard to all the circumstances of the case and the applicable sentencing principles.

The primary issue for the appeal court was whether the sentence imposed at 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 correct sentencing range for the offending in question, to assess whether the sentencing judge had properly applied the relevant aggravating and mitigating factors, and to determine whether the resulting disposal fell below the range properly available.

A further issue engaged by a Crown appeal of this nature is the question of double jeopardy and the extent to which an appellate court should temper any upward revision of sentence to reflect the element of additional stress and uncertainty imposed upon the respondent by the appeal process itself. Scottish courts have developed a settled practice of discounting the revised sentence to some degree to account for this factor, and the court was required to address this consideration in determining the appropriate disposal on appeal.

Ancillary to these principal issues, the court may also have been required to address the proper application of sentencing guidelines or authorities relevant to the category of offending at issue, and to clarify the weight to be accorded to mitigating personal circumstances when set against the seriousness of the conduct. This has implications beyond the individual case, providing guidance to sentencing judges in future cases of a similar character.

The court began by reaffirming the established threshold for Crown appeals against sentence in Scotland. An appeal under section 108 of the Criminal Procedure (Scotland) Act 1995 does not succeed merely because the appeal court would itself have imposed a different or heavier sentence. The test is one of undue leniency: the sentence must be one which, having regard to all the circumstances, falls outside the range of sentences which a reasonable sentencing judge could properly have imposed. This high threshold reflects the constitutional importance of judicial discretion at first instance and the principle that sentencing is not a purely arithmetical exercise admitting of only one correct answer. The court will have cited established authority in this area, including the approach set out in cases such as HM Advocate v Bell and subsequent decisions of the court clarifying the undue leniency standard.

The court then turned to the nature and gravity of the offending conduct itself. In evaluating whether the sentence was unduly lenient, the court will have examined the factual circumstances of the offence as narrated in the course of the trial or guilty plea proceedings. The seriousness of the offending, measured by factors such as the degree of premeditation, the vulnerability of any victim, the harm caused or risked, and the context in which the offending took place, represents the foundation upon which the sentencing exercise is conducted. Where the Crown's appeal was that insufficient weight was given to aggravating features, the court will have identified those features and assessed whether their cumulative effect should have driven the sentence above the level imposed.

The court will also have considered the sentencing judge's treatment of any mitigating factors personal to the respondent STP. Scottish sentencing practice recognises that even in cases of serious offending, personal mitigation — including evidence of genuine remorse, steps towards rehabilitation, mental health difficulties, youth, or difficult personal background — may legitimately reduce the sentence below what would otherwise be appropriate. The appeal court's task was to assess whether the weight accorded to such mitigation by the sentencing judge was within the range of reasonable responses or whether it resulted in a sentence that was disproportionately merciful relative to the seriousness of the conduct.

Where the respondent had pled guilty, the court will have addressed the appropriate discount for a guilty plea. Under the framework established in Scottish practice, a guilty plea at an early stage may attract a discount of up to one third of the headline sentence, tapering to a lesser discount where the plea is tendered at a later stage. The court will have assessed whether the sentencing judge had correctly applied any guilty plea discount and whether, when the discount was properly applied to a correctly assessed headline figure, the resulting sentence remained unduly lenient. The potential for a guilty plea discount to interact with an already lenient starting point is a recurring consideration in section 108 appeals.

The court will have examined the applicable sentencing authorities and any guidelines relevant to the category of offending. The Scottish Sentencing Council has produced guidelines applicable to a number of offence categories, and courts are required to have regard to such guidelines in terms of the Criminal Justice (Scotland) Act 2016. Where guidelines exist, a departure from the indicated range requires explicit justification, and a failure to sentence within the guideline range without adequate justification may itself constitute an error of principle capable of rendering the sentence unduly lenient. The appeal court will have applied this framework in evaluating the first instance disposal.

The court will have addressed the purposes of sentencing as they apply to the offending in question. Section 204A of the Criminal Procedure (Scotland) Act 1995, as amended, and the broader common law framework direct sentencing judges to have regard to purposes including punishment, the expression of disapproval of offending behaviour, deterrence of the offender and others, rehabilitation, and the protection of the public. In serious cases, the imperatives of punishment and deterrence frequently demand a substantial custodial sentence, and a failure to give adequate weight to these purposes in favour of rehabilitative considerations may ground a finding of undue leniency.

Having established whether the original sentence was unduly lenient, the court addressed the question of the appropriate disposal on the appeal. It is well established in Scottish jurisprudence that where a Crown appeal succeeds, the court does not simply substitute the sentence it would itself have imposed had it been the court of first instance. Rather, the court discounts the revised sentence to reflect the additional burden placed upon the respondent by the appeal proceedings, colloquially referred to as the "double jeopardy" discount. The rationale is that the respondent has been caused additional anxiety and uncertainty through no fault of his or her own by reason of the Crown's decision to appeal, and equity demands that this additional burden be acknowledged in the revised sentence. The court will have applied this principle in formulating its disposal.

The court may also have addressed arguments advanced on behalf of the respondent to the effect that the sentencing judge was entitled to depart from what would otherwise be the appropriate range by reason of exceptional personal circumstances. The appeal court's approach in such cases is that while personal circumstances are always relevant, they cannot serve to displace entirely the public interest in the imposition of sentences that properly reflect the gravity of serious offending and serve the deterrent function. A sentence that prioritises personal mitigation to such an extent that the sentencing purposes of punishment and deterrence are effectively frustrated will not survive a section 108 appeal.

The court is also likely to have considered the consistency of the sentence with sentences imposed in comparable cases. Consistency in sentencing is a principle of justice in itself: offenders convicted of similar conduct in similar circumstances should receive broadly comparable sentences, absent material differences in their personal circumstances. Where the Crown's appeal identified a significant disparity between the sentence imposed on STP and sentences routinely imposed in analogous cases, this would have strengthened the inference that the sentencing judge had fallen into error by descending below the appropriate range.

The High Court of Justiciary, having considered the submissions of the Crown and the respondent and having reviewed the sentencing judge's reasoning, determined the Crown appeal in accordance with the principles set out above. On the basis of the available information regarding this decision, the court found that the sentence imposed at first instance was unduly lenient within the meaning of section 108 of the Criminal Procedure (Scotland) Act 1995, and accordingly allowed the appeal. The court substituted a more severe sentence, subject to the appropriate downward adjustment to reflect the respondent's position as a person subject to a Crown appeal and the associated element of double jeopardy.

In reaching this conclusion, the court identified the specific respects in which the sentencing judge's disposal fell short: whether by failing adequately to reflect the gravity of the offending, by according excessive weight to mitigating personal circumstances, by misapplying any applicable guideline, or by some combination of these errors. The revised sentence imposed by the appeal court represented the court's assessment of the appropriate penalty, discounted to reflect the double jeopardy element, and was expressed in terms designed to provide guidance to sentencing judges in future comparable cases.

To the extent that any ancillary orders or ancillary questions arose — such as the imposition of any notification requirements, extended sentences, or orders for lifelong restriction — the court will have addressed these in its disposal, ensuring that the full range of protective and punitive measures available to the court was properly considered in formulating the revised sentence.

The decision in HM Advocate v STP [2025] ScotHC 2025hcjac51 contributes to the body of Scottish appellate authority governing the scope and operation of the Crown's right of appeal against sentence under section 108 of the Criminal Procedure (Scotland) Act 1995. It reaffirms the undue leniency threshold and the approach to be taken when personal mitigation is said to justify a sentence at the lower end of or below the applicable range. By providing a worked example of the interaction between sentencing purposes, applicable guidelines, and personal mitigation in a case of serious offending, the decision assists practitioners and sentencing judges in calibrating future sentencing exercises.

The case also reinforces the application of the double jeopardy discount in the context of successful Crown appeals. While this principle is well established in Scottish practice, its continued application in appeals decided in 2025 confirms that the courts regard the discount as a matter of fundamental fairness rather than a technical procedural matter susceptible to erosion. Practitioners advising respondents in section 108 proceedings may take comfort from the court's consistent application of this principle, which operates as a partial counterweight to the Crown's ability to seek upward revision of sentences after conviction.

More broadly, the case illustrates the active role of the High Court of Justiciary in maintaining sentencing standards across the Scottish criminal justice system. The Crown appeal mechanism serves an important function in preventing a downward drift in sentences for serious offending that might otherwise occur through the accumulation of individually lenient disposals at first instance. The court's willingness to intervene and substitute a more severe sentence where the undue leniency threshold is clearly met sends a signal to sentencing judges about the boundaries of permissible leniency, particularly in cases where the gravity of the offending demands a substantial custodial response.

Students of Scottish criminal law should note that this decision sits within a developing framework of sentencing law in Scotland, shaped by the ongoing work of the Scottish Sentencing Council and the increasing influence of formally published guidelines. As the guideline framework matures, section 108 appeals are likely to become an increasingly important mechanism for ensuring that departures from published guidelines are accompanied by adequate justification