Two people are convicted of taking part in the same conspiracy. One receives a longer sentence than the other. When can that difference support an appeal?
The sentence appeals of David Nisbet and Declan James McCuish illustrate why the answer depends on what each person was convicted of, the part each played and how the sentencing judge reached the overall term.
Two sentences from the same prosecution
A jury convicted both men of offences involving serious organised crime and conspiracy to murder. Messages recovered from the EncroChat platform formed a substantial part of the evidence. Lord Clark took into account that the conspiracy did not result in an attempted killing. He assessed Nisbet as more culpable and imposed a 16-year extended sentence, comprising a 13-year custodial term and a three-year extension period. McCuish received a 14-year extended sentence, comprising an 11-year custodial term and the same three-year extension period. Read Lord Clark’s sentencing remarks.
Nisbet pointed to shorter sentences imposed in connected or broadly similar cases. McCuish compared himself directly with Nisbet, arguing that the difference gave too little weight to his more limited role, the shorter period of his offending and the allegations the jury had removed from the charge. The first published appeal opinion, [2026] HCJAC 47, records that both appeals were refused.
Case citation note. The Scottish Courts and Tribunals Service public index links to [2026] HCJAC 47. A subsequent report identifies [2026] HCJAC 50 as a replacement opinion. The account of the appeals above is limited to the first published opinion.
What makes a comparison meaningful?
In Armstrong v HM Advocate [2021] HCJAC 34, the Appeal Court explained that co-accused convicted of the same offence should generally receive substantially similar sentences. Differences in culpability, criminal record or personal circumstances can justify different terms. A guilty plea can also affect the final figure, so it matters whether the comparison uses the sentences imposed or their starting points before any discount.
When sentencing for several offences, a judge applying the approach in HM Advocate v Fergusson [2024] HCJAC 22 can identify a provisional term for each offence, add the terms and adjust the total for fairness and proportionality. An earlier case in which sentences ran concurrently may therefore offer a weak comparison even where the offences sound similar. See an example of the cumulative approach.
For anyone trying to understand an apparent disparity, the sentencing reasons are the best starting point. They show what the court found proved, which circumstances mattered and how the judge reached the overall sentence.
If you would like to discuss a sentence appeal in Scotland, contact LB & Co Solicitors today to request a consultation or find out how we can help. Contact our team.
