Life prisoners’ serious crime prevention orders quashed
It was disproportionate to make serious crime prevention orders (“SCPOs”) against two accused convicted of murder, and ordered to serve life sentences with punishment parts of 24 years and 26 years respectively, the Criminal Appeal Court has held.
Lord Justice General Carloway, Lord Pentland and Lord Boyd of Duncansby gave the ruling in allowing appeals by Darren Eadie and John Kennedy against the imposition of SCPOs in addition to their custodial sentences, following their conviction for the murder of Kenneth Reilly in Glasgow in April 2018.
The murder was a “drive-by” shooting from one car pulling up alongside another, aggravated by a connection with serious crime. Eadie, aged 30, had organised it in retaliation for an earlier attack on a friend of his. He had 10 previous convictions, mostly minor but with one for assault to serous injury and danger of life for which he received 22 months with an 11 month supervised release order. Kennedy, aged 41, had the more serious record, with eight convictions including a firearms offence (which did not result in a sentence), assault to injury, misuse of drugs and housebreaking. Each received an additional five years for attempting to defeat the ends of justice by setting fire to the car used in the crime (which had been stolen).
The trial judge found the statutory conditions for an order satisfied. He did not consider that either accused would be harmless on release. While the accused argued that it was in appropriate to make an order that would not take effect for at least 24 years, and the Parole Board’s discretion should not be fettered, Parole Board licensing conditions were part of a different regime.
Delivering the opinion of the court allowing the appeal, Lord Carloway said the SCPO regime was not restricted to determinate sentences or to cases in which the person involved would not be the subject of bespoke licensing conditions throughout the duration of any post release parole. The sentencing judge had a wide discretion when determining whether an SCPO was both appropriate and, for the purposes of article 8 of the European Convention, proportionate.
However the court agreed with the Northern Ireland Court of Appeal in R v Hanrahan (2019), dealing with the analogous violent offences prevention orders, that “The more distant the first day of liberty for the sentenced [accused] the more challenging the application of the statutory test will be”. The trial judge was certainly entitled to take into account, in predicting future risk, that this was “a cold blooded assassination”.
He continued: “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. 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. It will therefore quash the orders.”