Darren Morton Eddie and John Kennedy v. His Majesty’s Advocate [2022] HCJAC45

Note of appeal against sentence:-On 9 February 2022, following a trial at Edinburgh High Court, the appellants were found guilty, along with their co-accused Morton Eddie and Ross Fisher, of the murder of Kenneth Reilly who was shot whilst a passenger in a car being driven on Bilsland Drive, Glasgow on 16 April 2018. The offence was aggravated by a connection with serious organised crime under section 29 of the Criminal Justice and Licensing (Scotland) Act 2010. The appellants were also found guilty of a charge of attempting to defeat the ends of justice by setting fire to the car used in the murder. The appellants were sentenced to life imprisonment on the murder conviction with a concurrent 5 years imprisonment on the additional charge. The first appellant, who had organised the shooting in retaliation for an assault with machetes on his friend Ryan McAteer, was given a punishment part of 24 years with the second appellant’s punishment part set at 26 years on account of him having a more extensive criminal record. On 9 March 2022 the Crown applied for Serious Crime Prevention Orders under section 22A of the Serious Crime act 2007.The Crown had 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 and there was a real risk of further offending which rendered the order appropriate. It had been submitted on behalf of the appellants that it was not appropriate to make an order which would not take effect for at least 24 years and the Parole Board’s discretion should not be fettered and the issue of future risk must be a real or significant one and not just a possibility. The trial judge considered that the statutory test had been met and imposed SCPOs for a period of 5 years on their release from prison. The appellants appealed against the imposition of the SCPOs.It was submitted on behalf of the appellants that there was a difference between determinate and indeterminate sentences and whilst SCPOs could be imposed when an indeterminate sentence was imposed the circumstances had to be special. It was submitted that the court was concerned with future risk which risk had to be real or significant and not a bare possibility and any order must be commensurate with the risk. On behalf of the Crown it was submitted that the trial judge was the person best placed to determine whether an order was necessary and proportionate and he had applied the correct test and had not erred in his assessment of the circumstances. Here the court allowed the appeals and quashed the orders. The court referred to the significant period of time which will elapse before any possible release and that the chief constable will be at liberty to apply for an order before any such release and in the circumstances the court did not regard it as a proportionate response to the prospective future risk for an SCPO to be be made.