High Court quashes crime prevention orders due to start at least 24 years from sentencing of murder co-accused

About this case:

• Citation:
  [2022] HCJAC 45
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Darren Eadie and John Kennedy were found guilty of the murder of Kenneth Reilly and sentenced to life imprisonment plus an additional five-year sentence on a charge of attempting to defeat the ends of justice. They argued that it was inappropriate for the Crown to seek to impose SCPOs that would commence, at a minimum, 24 years in the future.

The appeals were heard together by the Lord Justice General, Lord Carloway, along with Lord Pentland and Lord Doherty. A Ogg, and G Brown, solicitor advocates, appeared for the appellants, and Edwards KC for the Crown.

Serious organised crime

The first appellant had organised the shooting in retaliation for assault on his friend in April 2018. On 16 April, the appellants and their co-accused pulled up alongside a car in which the deceased was a passenger on Bilsland Drive, Glasgow. A back seat passenger, thought to be Mr Kennedy, fired six shots at the deceased, one of which delivered a fatal blow to his forehead. Following the shooting, the co-accused burned the vehicle, a stolen Ford S-Max people carrier. The offence was aggravated by a connection to serious organised crime.

At the sentencing diet in early 2022, Mr Eadie and Mr Kennedy were given punishment parts of 24 and 26 years respectively. On 9 March 2022, the Crown applied for SCPOs in respect of both appellants. The advocate depute argued that there were reasonable grounds to believe that the SCPOs would protect the public by preventing, restricting or disrupting involvement by the appellants in serious crime.

The judge, considering that neither appellant would be harmless upon release, imposed the orders sought for a period of five years following their release from prison. The order contained notification requirements in relation to addresses, the ownership and use of certain property including vehicles, a requirement to report to the police twice a year, and a prohibition on associating or communicating with the co- accused except between Mr Eadie and his co-accused father.

Counsel for the appellants submitted that the proposed SCPOs were not commensurate with future risk, especially as their sentences were of indeterminate length. Further, there was a presumption that, if released on parole, a convicted person no longer posed a risk to the public. An SCPO would only be necessary where the Parole Board failed to exercise its functions, and if the decision were left to be made later, a more informed decision could be made.

Not a proportionate response

Lord Carloway, delivering the opinion of the court, observed: “The SCPO regime is not restricted to determinate sentences or to cases in which the person involved will not be the subject of bespoke licensing conditions throughout the duration of any post release parole. The sentencing judge will have a wide discretion when determining whether an SCPO is both appropriate and, for the purposes of Article 8 of the European Convention, proportionate.”

However, he went on to say: “The court agrees with the reasoning of McCloskey LJ, delivering the judgment of the Court of Appeal in Northern Ireland, in R v Hanrahan (2019), albeit in a different but analogous context. As he put it, ‘the more distant the first day of liberty for the sentenced [accused] the more challenging the application of the statutory test will be’.”

Assessing the reasoning of the trial judge in this case, Lord Carloway said: “The trial judge, in predicting whether any future risk was real, rather than a possibility, was certainly entitled to take into account, as an extremely important factor, that this was a cold blooded assassination. Nevertheless, and accepting that some convicted criminals may be beyond redemption, a second important, but absent, factor is the progress toward rehabilitation, which one or both of the appellants might make, over the quarter century during which they will remain incarcerated.”

The court concluded: “Having regard to the substantial length of time which will elapse before their possible release, and to the fact that the chief constable will be at liberty to apply for an order before any such release, the court does not regard it as a proportionate response to the prospective risk, that an SCPO be made at this stage.”

The appeal was therefore allowed, and the orders quashed.