Man given 28-month prison term for role in serious assault has sentence more than doubled after Crown appeal

About this case:

• Citation:
  [2026] HCJAC 22
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

Kevin Smith pled guilty in December 2025 to a charge of assault to severe injury, permanent disfigurement and danger of life and was given a sentence of 28 months’ imprisonment and a Supervised Release Order for a period of 12 months. The Crown appealed on the basis that the sentence was unduly lenient, and additionally the sentencing judge erred in law by reducing the sentence under reference to section 91 of the Police, Public Order and Criminal Justice (Scotland) Act 2006.

The appeal was heard by Lord Justice Clerk Beckett, Lord Matthews, and Lady Carmichael, with Keenan KC, advocate depute, appearing for the Crown and Nelson KC and McMillan, advocate, for the respondent.

16 penetrating wounds

The respondent was indicted along with two co-accused, his partner Emma Hyslop and another man, Steven Mitchell, known to both of them. On the evening of 19 October, the three accused and the complainer JJO entered the complainer’s flat. The accused all consumed cocaine in the kitchen and the complainer became apprehensive that he was about to be attacked by the two men. Shortly after 11pm the complainer’s fears were realised when he was attacked by the respondent and Mr Mitchell.

The respondent inflicted at least 16 penetrating wounds with a small meat skewer, and during the assault the complainer was also struck with a Stanley knife, a beer bottle, and a metal pole from his TV stand. After the assault, the three accused fled with the complainer’s mobile phone and the keys to his flat, requiring him to shout from his window and throw items onto the street to attract attention.

After delays owing to attempts to locate the respondent’s co-accused, with the case against Mr Mitchell later deserted pro loco et tempore, a trial commenced on 17 November 2025. Evidence was led on 19 November from the complainer and two further witnesses before the trial was adjourned until 21 November. On 21 November, both the respondent and Ms Hyslop tendered acceptable pleas of guilty.

The impression of the trial judge was that Mr Mitchell was the individual responsible for the significant violence and that he did so in response to incitement by Ms Hyslop. He was aware that the respondent had offered assistance to the Crown in Mr Mitchell’s prosecution and accepted that he sought to rely on section 91 on the basis that this offer was sufficient to invoke the provision.

For the Crown it was submitted that section 91 required a written agreement to assist or offer to assist the prosecutor per section 91(1)(b) of the 2006 Act. Additionally, the role of the respondent could not be described as significantly less than that of Mr Mitchell. He had pled guilty on the basis of art and part responsibility and already had a significant record including several assault convictions, supply of controlled drugs, and possession of a bladed object.

Counsel for the respondent accepted that the trial judge had erred in respect of section 91, but he was entitled to differentiate as to responsibility. The headline sentence and the reduction for the plea were both within a reasonable exercise of the trial judge’s discretion.

Increased his terror

Delivering the opinion of the court, Lord Matthews noted the clear requirements of section 91 of the Act, saying: “In circumstances where the Act does not apply but there is nonetheless an offer of assistance it would be open to the court to attach such weight to that as it thought appropriate, but no specific discount would be expressed. It would simply be one of the circumstances to be taken into account in assessing the headline sentence. See for example Cormack v HM Advocate (1996) and O’Neill v HM Advocate (1999). In the instant case, even if there was an offer to provide a statement and give evidence in due course against Mr Mitchell, that was untested, given Mr Mitchell’s plea after he was apprehended.”

He continued: “In any event, the respondent would doubtless have been cited to give evidence and would have had no choice in the matter. If he appeared as a witness, he would have been under a legal duty to tell the truth. There was, in short, no basis upon which the trial judge could properly afford him any reduction in his sentence as a result of his expressed willingness to cooperate.”

Considering whether the trial judge was right to differentiate between the co-accused, Lord Matthews said: “While the co-accused inflicted the more serious injuries with a knife, the respondent joined in more or less simultaneously, attacking the complainer with a weapon and inflicting a considerable number of injuries on him. This would have increased his terror and decreased his ability to defend himself. The co-accused was personally responsible for the infliction of the more serious injuries but there is little to choose between the two.”

He concluded: “The trial judge lays emphasis on the use of the knife being unanticipated, but the respondent pleaded guilty to concerted involvement in its use, as well as the attack with the bottle and the TV stand. The consequences for the complainer could have been fatal. As it is, the assault, aggravated in the manner described by the Advocate Depute, was a very serious one meriting a sentence far in excess of that which the trial judge thought appropriate to mark the serious nature of the offence and to reflect the respondent’s record.”

The court therefore quashed the sentence imposed at first instance and substituted an extended sentence of eight years and two months with a custodial term of five years and two months, reduced from four months to reflect the limited value of the respondent’s plea of guilty, and a three-year extension period.