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DARREN MORTON EADIE AND JOHN KENNEDY AGAINST HIS MAJESTY'S ADVOCATE [2022] ScotHC HCJAC_45 (02 December 2022)
URL: http://www.bailii.org/scot/cases/ScotHC/2022/2022_HCJAC_45.html
Cite as:
2023 JC 46,
[2022] HCJAC 45,
2023 SLT 146,
2022 GWD 39-566,
[2022] ScotHC HCJAC_45,
2023 SCCR 41
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2022] HCJAC 45
HCA/2022/52/XC
HCA/2022/50/XC
Lord Justice General
Lord Pentland
Lord Boyd of Duncansby
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTES OF APPEAL AGAINST SENTENCE
by
DARREN MORTON EADIE and JOHN KENNEDY
Appellants
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant (Eadie): A Ogg (sol adv); Paterson Bell (for Fitzpatrick & Co, Glasgow)
Appellant (Kennedy): G Brown (sol adv); Faculty Services (for Bridge Legal, Glasgow)
Respondent: Edwards KC; the Crown Agent
2 December 2022
The Convictions and Sentences
[1]
On 9 February 2022, at the High Court in Edinburgh, the appellants were found
guilty, along with two co-accused (Morton Eadie and Ross Fisher), of the murder of Kenneth
Reilly on 16 April 2018. Mr Reilly was the passenger in a car being driven on Bilsland Drive
2
at its junction with Maryhill Road, Glasgow. A stolen Ford S Max pulled up alongside. A
back seat passenger, thought to be Mr Kennedy, opened the door of the Ford and fired 6
shots, 5 of which missed the deceased's car and one of which delivered a fatal blow to the
deceased's forehead. The offence was aggravated by a connection with serious organised
crime (Criminal Justice and Licensing (Scotland) Act 2010, s 29). The accused were found
guilty of an additional charge of attempting to defeat the ends of justice by setting fire to the
Ford after the murder.
[2]
The appellants were both sentenced to imprisonment for life on the murder
conviction with a concurrent 5 years imprisonment on the additional charge. Mr Eadie, who
had organised the shooting in retaliation for an assault with machetes on his friend Ryan
McAteer on 8 April 2018, was given a punishment part of 24 years. Mr Kennedy's
punishment part was set at 26 years, because of his more extensive record.
Statutory provisions
[3]
Part 1 of the Serious Crime Act 2007 introduced the serious crime prevention order to
England and Wales. The provisions were extended to Scotland by amendments effected by
the Serious Crime Act 2015. An SCPO can be made in one of two ways: first, on an
application to the civil courts (Court of Session or a sheriff court (s 1(1A)); and, secondly, on
conviction in the High Court or sheriff court (s 22A(2)). In each case the test is whether the
person has been involved in serious crime and the court "has reasonable grounds to believe
that the order would protect the public by preventing, restricting or disrupting involvement
by the person in serious crime" (ss 1(1A)(b); 22(A)(2)). The order may contain such
prohibitions, restrictions or requirements and such other terms as the court considers
appropriate for the order's central purpose (ss 1(3) and 22A(4)).
3
[4]
An SCPO is defined, for the purposes of part 1 of the Act, as including both a " stand
alone" order from the Court of Session or the sheriff court under section 1(1A) and an order
of the High Court or the sheriff court under section 22A (s 1(5)). If that is correct, then
sections 16 to 18 must apply to both. Section 16 of the Act provides that an order must
specify when it is to come into force and when it is to cease (s 16(1)). An order has a
maximum duration of 5 years (s 16(2)) but a new order may be made, including one in
anticipation of an earlier order ceasing to be in force (s 16(5) and (6)). Although highly
unusual, and surprising, the Court of Session or the sheriff court (the "appropriate court")
appear to have been given the power to vary an order (s 17(1A) made by either a criminal or
a civil court. In that respect, proceedings in either the High Court or a sheriff court under
section 22A (ie in a criminal court) are defined as "civil proceedings" (s 36A(1)). If an
application is by the affected person (s 17(3)) it can only be made on a change of
circumstances since the order was made (s 17(4)). If it is on the application of the police, it
has to be made to the Court of Session and cannot be made to the sheriff (s 17(7A)). The
Court of Session may discharge an order in a similar way; ie a change of circumstances.
The applications
[5]
On 9 March 2022 the Crown applied for SCPOs under section 22A. Mr Eadie was 30
and had previously been a scaffolder. The application cited his 10 previous convictions.
These were almost all relatively minor public order or road traffic offences. However, in
August 2019 he was sentenced to 22 months imprisonment, with an eleven months
supervised release order, for assault to injury and the danger of life involving the use of a
hammer. The application referred to certain pending cases, including assault and assault to
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injury and the danger of life, but at least some of these had been disposed of without any
culpability attaching to Mr Eadie.
[6]
Mr Kennedy was 41. It was not known how he supported himself since he was
unemployed, but not in receipt of benefits. He had 8 previous convictions, including a
firearms offence (which did not result in any sentence), assault to injury, misuse of drugs
and housebreaking. There was reference to Mr Kennedy being involved in another murder
some 12 years ago but his involvement in that was not established.
[7]
In what was described by the trial judge as a "very concise" submission, the
Advocate depute argued that there were reasonable grounds to believe that the SCPO
would protect the public by preventing, restricting or disrupting involvement by the
appellants in serious crime. There was a real risk of further offending which rendered the
order appropriate. The appellants argued that it was not appropriate to make an order
which would not take effect for at least 24 years. The Parole Board's discretion should not
be fettered. The future risk must be a real or significant one and not just a possibility. .
[8]
The trial judge imposed an order; the statutory conditions having been met. The
order was for a period of five years after release from prison. The judge did not consider
that either appellant would be harmless upon release. Parole Board licensing conditions
notification requirements in relation to addresses, the ownership and use of motor vehicles,
phones or computers, firearms and travel outside Scotland. There was a requirement to
report to the police twice a year; a prohibition on associating or communicating with the co-
accused (other than between Mr Eadie and his co-accused father); and a limitation on their
possession of more than £1,000 in cash.
5
Submissions
[9]
The appellants expanded upon the submissions which had been made to the trial
judge. There was a material difference between determinate and indeterminate sentences.
Although an order could be made when an indeterminate sentence had been imposed (R v
Dunning [2018] EWCA Crim 3018), the circumstances had to be special. The court was
concerned with future risk. That risk had to be real, or significant, not a bare possibility (R v
inevitably engage Article 8 of the European Convention. The order must be commensurate
with the risk (ibid at para 10).
[10]
An analogy could be made with violent offences prevention orders in Northern
Ireland (Justice (NI) Act 2015 part 8). These too could be "free standing", that is made on
application to a civil court, or part of a sentencing process (R v Hanrahan [2019] NICA 75 at
para 32). The court had to focus on the post-release phase (ibid at para 40). With a free
standing order, the court's forecast was of the immediate future whereas, with an order to
take effect at the expiry of a long sentence, assessment will be more difficult. The more
distant liberty was, the more challenging the application of the test (ibid paras 43-44). The
most significant imponderable would be the person's progress in prison. "The sentencing
judge's armoury did not include a crystal ball" (ibid para 46).
[11]
If the decision were left to be made following a later free standing order, a much
more informed decision could be made (ibid para 47). An order made at a sentencing diet
risked operating as a disincentive to rehabilitation (ibid para 48). Given the licence regime
for the release of life prisoners, an SCPO would only be necessary where the Parole Board
failed to exercise its functions. There was a presumption that, if released on parole, the
convicted person no longer posed a risk to the public. If the appellants were released on
6
licence, they could be recalled by the Board or, in an emergency, by the Scottish Ministers.
In any event, the conditions in relation to motor vehicles, associations, possession of cash
and phones etc were unnecessary and disproportionate.
[12]
The Crown responded that Parliament must have considered that the orders would
supplement the system of parole (R v Hall at para 31). A risk could be so serious that an
order subsequent to even an indeterminate sentence would be appropriate (R v Dunning at
para 15). The trial judge felt able to assess the risk on the information before him, including
the convictions. The test for release on parole (Prisoners and Criminal Proceedings
(Scotland) Act 1993, s 2(5)) did not involve that release being entirely risk free. The judge
was best placed to determine whether an order was necessary and proportionate. He had
applied the correct test and had not erred in his assessment.
Decision
[13]
Section 22A(2) of the Serious Crime Act 2007 provides that the High Court can make
a serious crime prevention order in respect of a person who has been convicted of a serious
offence if there are reasonable grounds to believe that the order would protect the public by
preventing, restricting or disrupting the person's involvement in serious crime. 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.
7
[14]
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] NICA 75; albeit in a different
but analogous context. As he put it (at para 44):
"The more distant the first day of liberty for the sentenced [accused] the more
challenging the application of the statutory test will be".
[15]
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. 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.
