SENTENCING STATEMENTS

On sentencing Lord Clark made the following remarks in court:

"David Nisbet and Declan McCuish by the verdict of the jury you were each convicted of two offences: involvement in serious organised crime and conspiracy to murder.

The jury found that in committing the crimes you both used Enchrochat, for communication between yourselves and with others. The Encrhochat platform has been used by criminals across the United Kingdom, in Europe and indeed beyond, to facilitate criminality, often to run a drug supply operation.

Each device is assigned to one unique identifier, known as a “handle” and anyone else on Enchrochat must know the handle if they wish to call or message the other user. Encrochat devices are encrypted communication devices, notable for their high levels of data security

But in early 2020 the French authorities found a technical means of infiltrating and obtaining data from Enchrochat devices. The data obtained and understood to have been used in a particular country was sent to the authorities in that country, in this case the UK. The data was then passed on to Police Scotland. Collection of the data from Encrochat devices ceased altogether on 1 July 2020.

In this case, the jury was convinced, beyond reasonable doubt, that one of the handle names used by you David Nisbet was “Las Diablo”, although you also used other handles. Declan McCuish, you used the handle “Remotestorm”. A very substantial amount of the evidence given at the trial related to the messages sent between yourselves and to others. The jury must have felt that the contents of those messages strongly supported the terms of the charges made against you. 

In sentencing each of you, I have had regard to everything said on your behalf this morning and to the terms of the Criminal Justice Social Work Reports (CJSWR’s).

Declan McCuish, the serious organised crime in which you were involved concerned the supply of controlled drugs, namely benzodiazepenes. I take into account the nature of this drug, the level of your role and the period of time in which you were involved. Nonetheless, drug supply operations can cause lasting damage to our community.

You have several previous convictions, including one for assault to severe injury, and you have been imprisoned before.

Having regard to all of the evidence, if I was sentencing you only for that offence, the period of imprisonment would have been 5 years.

In relation to the conspiracy to murder, your involvement was at a slightly lower level than David Nisbet. But the full details of the text messages plainly indicated that you committed the remaining elements set out in the charge made against you, including that you conspired, along with others, to shoot and murder a person (who may have been involved in a rival drug gang).

With the others, you identified the address where he lived, how to access it, identified the car that he was using, monitored his movements, discussed and agreed how best to murder him, offered money and arranged for individuals to be brought to Glasgow to carry out the murder, sourced and obtained stolen cars with false number plates to use in the murder,  and made plans to conceal the firearm and to set fire to the car used during the murder. It was a detailed and advanced plan.

I have of course also had regard to the fact that harm did not actually occur to the victim. No attempt to murder took place.

In all of the circumstances, your sentence for conspiracy to murder, on its own would have been 9 years.

In relation to the aggravation on that charge, which is a connection with serious organised crime, 6 months of that sentence would have been attributed to that aggravating factor.

Rather than impose consecutive sentences, taking into the account the totality principle I will give an in cumulo sentence.

Having regard to your previous convictions and what is said in the CJSWR about risk assessment, I consider that the period for which you would be subject to an ordinary licence, after release from prison, is inadequate for the purpose of protecting the public from serious harm. I shall therefore impose on you an extended sentence, which is in two parts.

The total custodial period is, in cumulo, 11 years, with 4 months of that period attributed to the aggravating factor.

But that period of imprisonment is not the end of your sentence.  The second part of your sentence will be served in the community.  Following your release there will be an extension period of 3 years during which you will be subject to certain conditions set by the Scottish Ministers.  Breach of those conditions or the commission of further offences may see you sent back to prison to complete the remainder of your sentence.

So I shall impose an extended sentence of 14 years, comprising 11 years in custody and an extension period of 3 years.

I also take into account that you have spent 897 days in custody before being released on bail and you were then remanded on 13 February 2025. Accordingly, taking that whole period as indicating the notional starting point for custody, your sentence is backdated to 27 August 2022.

David Nisbet, your involvement in the serious organised crime, as determined by the jury, was at a higher level, which was directing others to commit serious offences in relation to drug dealing (involving Cocaine, Diamorphine, Etizolam) and the money involved. You were also found to have had a handgun in your possession. This is quite a significant role in a drugs operation that blights our society.

You also have a number of previous convictions, several for assaults including serious assault, and you have been imprisoned before.

Taking into account all of the relevant evidence and factors, if you had been convicted only of that serious organised crime offence, the sentence would have been 7 years’ imprisonment.

In relation to the conspiracy to murder, the number, nature and wording of the text messages the jury concluded you had sent and received showed an alarming level of commitment by you to having the person murdered.

Those people selected to do the murder ended up not committing it, but that was entirely out of line with what you planned and wanted to happen.

For you, the sentence of conspiracy to murder alone would have been 10 years, with 6 months attributed to the aggravating factor.

Again having regard to your previous convictions and what is said in the CJSWR about risk assessment, I consider that the period for which you would be subject to an ordinary license, after release from prison, is inadequate for the purpose of protecting the public from serious harm. I shall therefore also impose on you an extended sentence.

Again taking the totality approach, the custodial period is, in cumulo, 13 years, with 4 months of that period attributed to the aggravating factor.

As I said earlier, that period of imprisonment is not the end of your sentence.  The second part of your sentence will be served in the community.  Following your release there will be an extension period of 3 years during which you will be subject to certain conditions set by the Scottish Ministers.  Breach of those conditions or the commission of further offences may see you sent back to prison to complete the remainder of your sentence.

So I impose an extended sentence of 16 years, comprising 13 years in custody and an extension period of 3 years.

That sentence is backdated to 19 April 2023 when you were first remanded in custody.

The Crown seeks a serious crime prevention order for each of you.

You have been notified of the terms and conditions of the order. Defence counsel oppose the Crown’s application.

I have taken into account what has been said this morning about the periods of time you will spend in prison. These are well short of the periods in the case to which I was referred (Eadie and Kennedy v HMA [2022] HCJAC 45. As the court noted in that case, there were punishment parts of 24 and 26 years and it was not clear when the individuals would be liberated. You are not in that position.

In terms of s 1(1A) of the Serious Crime Act 2007, I am satisfied that you have each been involved in serious crime and that there are reasonable grounds to believe that the orders will protect the public by preventing, restricting or disrupting involvement by you in serious crime in Scotland.

I shall therefore grant the orders in the terms proposed by the Crown.

The order for each of you will last for 3 years. The period of 3 years will begin on the date upon which you are released from prison in relation to the sentence of imprisonment in force at this time. That includes release under home detention curfew or conditional release on parole (but not temporary release).

So, you are each made subject to the serious crime prevention order in the terms of the document sent on to you and it will last for that period of 3 years.”

 27 March 2025