On 19 December 2017 at Dundee Sheriff Court the applicant, Liston Craig Pacitti, pled guilty to an amended charge of culpable and reckless conduct by supplying substances known as “legal highs” or “New Psychoactive Substances”.

On 24 April 2018, the sheriff sentenced him to four years and six months’ imprisonment, reduced from six years. His co-accused, Paul Brocklehurst, pled guilty to the same offence but in different circumstances and was also sentenced to four years and six months’ imprisonment.

The applicant’s sentence appeal was refused after a hearing on 26 June 2018. However, Mr Brocklehurst’s sentence appeal was successful and on 16 October 2018 the appeal court reduced his sentence to three years and nine months.

The court agreed with his submissions that the sheriff had erred by firstly not distinguishing his sentence from the applicant’s but also in relying upon provisions within the Psychoactive Substances Act 2016 which was not in force at the time of the offence and the English Sentencing Council’s guidelines for drug offences.

The commission has decided to refer Mr Pacitti’s sentence to the High Court of Justiciary. It believes that the sheriff may have erred in considering the provisions contained within the Psychoactive Substances Act 2016 and the English sentencing guidelines and, as a result, a miscarriage of justice may have occurred.