High Court increases ‘unduly lenient’ sentence of father who choked children

About this case:

• Citation:
  [2026] HCJAC 39
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

The respondent was convicted of various offences, including the assault of two of his children, in April 2026 and sentenced to 14 months’ imprisonment. Challenging that sentence on the grounds of undue leniency, the Crown appealed to the Appeal Court of the High Court of Justiciary.

The appeal was heard by Lady Wise, Lord Clark and the Lord Justice Clerk, Lord Beckett, with Paul Harvey appearing for the Crown and Wendy Culross for the respondent.

Bragged to pals about violence against children

In April 2026, the respondent was convicted of five offences against, or involving, his children at Falkirk Sheriff Court. Among those offences stood the charges that the respondent had assaulted his son, DD, on numerous occasions during his childhood, including by seizing him by the neck; and had likewise repeatedly assaulted his 11- to 13-year-old daughter, EE, including by strangulation.

At trial, the jury heard evidence of various incidents involving the respondent and his children. The respondent’s son described an occasion in 2020 when he awoke to find his father “raining punches on him”, an incident on account of which the police became involved and he went to live with his mother. His daughter likewise recalled having been choked for a period of around 30 seconds after failing to let her father into the house, having fallen asleep. Although both DD and EE noted that their father had discouraged them from reporting the incidents, the jury heard nevertheless that the respondent liked to “brag to his pals” about the violence he inflicted on his children.

The respondent was sentenced to 14 months’ imprisonment, with the sentences on the charges of violence against his children to be served cumulatively. Although the prosecutor invited the sheriff to make a non-harassment order (NHO) at the request of the children’s mother, the sheriff regarded the motion as having been made too late in the proceedings – the respondent, by that point, being led away to prison by court officers.

Averring that the sentence imposed on the respondent was unduly lenient, the Crown submitted that the sheriff had not properly appreciated the significant harm caused by the respondent’s violence and moved the court to impose a longer sentence to “express disapproval of such offending and provide guidance on sentencing for manual strangulation”. Accepting that the prosecutor’s request for NHOs had come later than it had ought to, the Crown nevertheless rejected the conclusion that the sheriff was barred functus officio from making further orders.

Courts must recognise gravity of ‘insidious’ choking

Lord Beckett, the Lord Justice Clerk, began his decision by observing that: “Parties agreed that the correct approach in an appeal on the ground of undue leniency was identified by the Lord Justice General (Hope) in [HM Advocate v] Bell (1995): ‘…The sentence … 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…’. His Lordship explained that following a finding that a sentence is unduly lenient, the court has a discretion on whether to impose a different sentence … We note that the court has also increased sentences where greater punishment was required, deterrence and where it was necessary to mark the gravity of the offending and express society’s condemnation of it.”

As to the nature of the respondent’s violence, Lord Beckett noted: “The court has sought to make clear in various contexts, eg Kirkup v HM Advocate (2025), that actions of choking, neck compression, strangling and similar conduct, whether occurring during a sexual encounter or otherwise, constitute a serious crime frequently posing at least potential danger to life. Whilst we are not concerned with a sexual offence, we take the opportunity to restate the court’s ruling in Kirkup, that in Scotland, consent is not a defence to an assault. To intentionally choke, strangle or otherwise inhibit another person’s breathing are forms of assault. Accordingly for conduct such as choking, strangling or inhibiting another person’s breathing in any context, sexual or otherwise, consent is not a defence. Such conduct is always a crime.”

He continued: “From the sentences imposed in the cases cited to us, we are not certain that all judges have always recognised the full implications of such conduct … We consider that courts in Scotland, if they are not already doing so, must recognise the gravity of choking, strangling and neck compression generally, and similar conduct, and reflect its gravity in sentencing to deter conduct that is prevalent, insidious, harmful, often controlling and always extremely dangerous. Such conduct merits severe punishment. It is necessary to protect the public, and particularly women and children who are frequently the victims of such conduct, from people who would perform such actions.”

As to the leniency of the sentence imposed, Lord Beckett observed that: “Taking account of the gravity of the respondent’s offending, the period over which it was committed, the breach of trust involved, the vulnerability of the children given their age and situation, and such limited mitigating factors as there were, primarily the absence of previous convictions, we are in no doubt that the sentence imposed was unduly lenient and that it is appropriate to impose a different, and longer, sentence. Since we are sentencing of new, we can consider afresh the question of NHOs.”

He concluded: “We have been moved to make an NHO in favour of [DD and EE] and are satisfied, on a balance of probabilities, that it is appropriate to do so to protect those complainers from harassment from the respondent. We shall do so and on the following conditions: ‘The respondent must not approach, contact or communicate, or attempt to approach, contact or communicate with [DD] for an indefinite duration, and [EE] for 5 years.’ In the whole circumstances, for charges 1 and 5, we consider that appropriate sentences would have been, on charge 1 imprisonment for 2 years and on charge 5 imprisonment for 5 years to be served consecutively. Making the [HM Advocate v] Fergusson [(2024)] proportionality adjustment, we impose, in cumulo, a sentence of imprisonment for 5 years and 6 months. As before, the sentences on charges 2, 3 and 4 will be served concurrently with it. As before, all sentences will commence from 23 February 2026.”

The Crown’s appeal was accordingly allowed.