High Court rejects comparative justice challenges to sentences for murder conspiracy

About this case:

• Citation:
  [2026] HCJAC 47
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

David Nisbet and Declan James McCuish challenged extended sentences of 16 years and 14 years respectively on the basis that their sentences were excessive when compared with those imposed on others involved in connected or similar offending.

The court held that the proper focus remained whether each appellant’s sentence was excessive in the whole circumstances. It endorsed earlier authority that comparisons between co-accused must be approached “on a somewhat broad basis” and warned that fine or contrived comparisons would not find favour.

Nisbet appeared as a party appellant. Mohammed KC, instructed by Paterson Bell for John Kilcoyne and Co, Glasgow, appeared for McCuish. Dalziel (Sol Adv) AD, instructed by the Crown Agent, appeared for the Crown. The opinion of the court was delivered by the Lord Justice Clerk, Lord Beckett, sitting with Lord Matthews and Lord Ericht.

Murder conspiracy and extended sentences

The appellants were convicted following trial at the High Court in Glasgow of offences arising from serious organised crime investigated through Operation Venetic, which involved material obtained after French authorities overcame the security of the EncroChat communications system. Nisbet used EncroChat handles including “las-diablo” and “secrettuna”, while McCuish used “remotestorm”. The recovered communications were central to proof of drug offending and a conspiracy to murder Ryan Carvill.

Messages demonstrated that the conspirators identified Carvill’s address and vehicle, monitored his movements, discussed how he should be killed, arranged for potential hitmen to travel to Glasgow, sourced stolen cars with false number plates and planned disposal of the firearm and vehicle. One potential killer travelled from Liverpool to Glasgow but ultimately withdrew from the plan after being dissatisfied with the getaway car.

Nisbet was convicted of directing others to commit serious offences involving controlled drugs and criminal property, together with possession and control of a handgun for the purpose of violence, and of conspiracy to murder aggravated by a connection with serious organised crime.

The trial judge imposed a cumulative extended sentence of 16 years, comprising a 13-year custodial term and three-year extension period. Had the charges been sentenced separately, the judge would have imposed seven years on the first charge and an extended sentence with a 10-year custodial term on the conspiracy charge before making a proportionality adjustment.

McCuish was convicted of involvement in serious organised crime through drug supply and encrypted communications, together with the same conspiracy to murder. The jury deleted certain averments concerning agreement of the price for the killing and testing of a firearm. He received a cumulative extended sentence of 14 years, comprising an 11-year custodial term and three-year extension period. His notional sentences were five years for the organised crime charge and an extended sentence with a nine-year custodial term for the conspiracy.

Comparative justice

Nisbet argued principally that his sentence was disproportionate when compared with sentences imposed on Anthony Haggarty junior and Anthony Connell in connected proceedings. Haggarty, whom Nisbet accepted had played a subordinate role, received four years and six months after pleading guilty to drug-trafficking offences. Connell received six years and nine months after pleading guilty to offences involving drug trafficking and conspiracy to murder.

The sentencing judge explained that neither was a proper comparator. Haggarty had not been convicted of involvement in serious organised crime with the appellants and Nisbet had occupied an elevated role directing him. Connell’s conviction was under section 28 of the Criminal Justice and Licensing (Scotland) Act 2010, carrying a lower maximum penalty, and his criminality was considered substantially less serious.

At the appeal hearing Nisbet also sought to compare his sentence with those imposed on Gerard Gilmour and Martin Mullen in unrelated proceedings linked to Operation Venetic. The appeal court said those cases were “a very long way removed from a proper comparative justice situation”. Although there were superficial similarities, they were different proceedings involving different charges and circumstances.

McCuish advanced a different comparison. He argued that his sentence did not sufficiently reflect his lesser role compared with Nisbet, the shorter period of his offending and the fact that the jury had deleted parts of the murder-conspiracy libel. The court accepted that there were differences between the appellants but held that McCuish remained a significant participant. His involvement included identifying where the intended victim lived and how to access the address, monitoring his movements, discussing how he should be murdered, arranging for people to come to Glasgow to carry out the killing, obtaining cars and planning concealment of the firearm and destruction of the getaway vehicle.

Broad comparison, not mathematical precision

Delivering the opinion of the court, the Lord Justice Clerk reviewed the principle of comparative justice in cases including Simpkins v HM Advocate, Armstrong v HM Advocate and Douglas v HM Advocate.

The general principle is that co-accused convicted of the same offence should receive substantially the same sentence, with the severity or leniency of one sentence capable of being taken into account when sentencing another. However, the court stressed the importance of the word “substantially”. Differences in criminal records, culpability, youth, the roles played and personal mitigating circumstances may justify different outcomes. The court also added that a sentencing error in one case should not simply be perpetuated in another in the name of consistency.

The judges said it was “rarely straightforward to achieve comparative justice”. Sentencing must remain fair and proportionate, and similar cases should be treated similarly, but that did not mean they must be dealt with identically.

The court endorsed the statement in Douglas that comparative justice between accused on the same indictment could only be approached “on a somewhat broad basis” and that attempting to draw fine distinctions was not appropriate or helpful. It added: “It is unrealistic to expect mathematically calibrated precision in comparing sentences when there are always variables requiring careful evaluation.”

The court further warned that “contrived complaints based on fine comparisons” between co-accused, or between an accused and offenders in other proceedings, would not find favour. Nisbet’s reliance on sentences imposed in 2023 was also weakened by subsequent developments in sentencing practice. The court referred to HM Advocate v Fergusson, which endorsed a cumulative approach where there are multiple offences: individual sentences are identified, totalled and then reduced where necessary to achieve overall fairness and proportionality.

The 2023 comparators had received concurrent sentences. The court observed that applying the later Fergusson approach to their pre-discount figures would have produced substantially higher cumulative totals before proportionality adjustments, reducing the force of Nisbet’s comparison. The court concluded that no valid comparison could be made between Nisbet and Haggarty or Connell, and that the other Operation Venetic cases did not raise a true issue of comparative justice. 

His 13-year custodial term was not excessive and his appeal was refused.

As to McCuish, the court held that the sentencing judge had reasonably regarded Nisbet as slightly more culpable but had also been entitled to regard McCuish as a significant actor in the same scheme. His notional sentences and final extended sentence were not excessive.

Both appeals were therefore refused, the court finding no miscarriage of justice in either sentence.