Scottish prosecutors to go after 'Mr Untouchables' in civil courts

His latest stretch started in 2009 when a court in St Helier gave him 13 years for his part in a plot to smuggle cannabis on to the island. Locking him up, Judge Sir Richard Tucker called Warren a "mastermind".

Jersey

Back in mainland Britain, authorities were already thinking ahead. What will happen when Warren gets out? English prosecutors began what was to be a civil action against the gangster designed to end his criminal career. They sought and obtained a Serious Crime Prevention Order or SCPO, a "super-ASBO" as Fleet Street tabloids called it.

Warren was to be banned from having more than one mobile, one landline and one computer, which he must make available to the police. He will not even allowed to use payphones or public WiFi. Why? To frustrate any attempt to go back in to the drugs business. Breaching the terms of this order would put him back in jail.

Courts in England and Wales have dished out hundreds of SCPOs since they order was introduced in 2007. The Warren case was different though. Why? It was not issued upon conviction. It was a "standalone". This was a purely civil action, not a civil action added on to a criminal one.

A decade after England, Scottish prosecutors were given the power to seek SCPOs. Sparingly, they have sought and obtained some 30 of the orders, including for some of the highest profile gangland figures jailed in recent years. All the SCPOs were granted upon conviction.

But change is coming. The Crown Office, The Herald on Sunday can reveal, is now looking at its own Warrens. Senior prosecutors have drawn up a candidate list for "standalone" SCPOs. Suddenly some of Scotland's biggest organised criminals face potentially crippling court-imposed restrictions, whether they have been convicted of anything or not.

Andrew Laing, Deputy Procurator Fiscal for Specialist Casework, said there were currently two such cases in the pipeline. "We are looking at two cases where we are considering whether it would be appropriate to seek standalone SCPOs.

"We think there are things we could do with SCPOs that would mitigate risk to communities. These are both people in prison at the moment, so they are not presenting a risk. But we are thinking ahead to when they get released."

The Herald on Sunday understands one of the individuals Mr Laing is talking about is linked to organised crime and the other is not.

But, speaking more generally, the prosecutor made it clear that this was a tactic that had been carefully weighed up. The Crown, Mr Laing said, did not expect courts - or those targeted by standalone SCPOs - to roll over.

He explained: "The court would still have to be satisfied that the person had been involved in serious crime.

"So instead of having a criminal conviction which proves that, the Crown would have to satisfy a court that there was evidence they had been involved."

South of the border, where only Warren has faced such action, case law suggests to that a standalone SCPO would be judged on a criminal burden of proof - beyond reasonable doubt. In Scotland, standalones would be subject to the civil proof, on the balance of probabilities. That is no mere detail.

Mr Laing said: "We are conscious of the fact that you would want to satisfy the court that this had been done appropriately and that we are not trying to take a shortcut, that we are not lazy in deciding not to prosecute people any more.

"Generally speaking, you would pursue a criminal case if you can. I think that is why these ones will be rarer: that should be our default position, a criminal prosecution. When we don't have enough for a criminal prosecution, we have to think quite carefully before we go down the route of an SCPO 'standalone'.

"There are cases that could genuinely stand alone, ones where someone may never have been convicted of anything but we are convinced that person has been involved in serious crime, Mr Untouchables, who don't get their hands dirty, they get other people to do it, they are clean, or they appear to be clean.

"There may be genuine cases where we can't bring a criminal case but nevertheless we think the public needs protection. We will have to think about human rights, about article two rights to life. But we can't just throw up our hands and say there is nothing we can do. People's lives may be at risk. Maybe we have a duty to pursue every available opportunity to target that person?"

The prospect of non-conviction SCPOs comes after Scotland has made only limited use of the order for those convicted. In fact, the Crown was criticised for this, after only two SCPOs issued in the first year after they came in to force.

The first ever order of the kind was issued to a chain-smoking granny in a wheelchair, Isabella Jackson, rather than a hardened gangland figure.

Jackson, 74, was jailed in 2017 for sending death threats to Theresa May. She is out now, and her SCPO is active, the only one in actual force on a freed prisoner.

Theresa May, when Home Secretary, faced death threats

Graeme Pearson, a former MSP and senior police officer who made his name taking on the country's most serious gangsters, questioned the slow pace. Back in 2017, he told the Sunday Mail: "We have loads of criminals who have been prosecuted for organised crime, so why have we not had more of these orders?

“They just aren’t used. We need to look at why that is.

“Have they not been effective in what they are supposed to do, or has it just been that there has been a reluctance to get into it and use them?"

Mr Laing reckons Scotland was right not go to gung-ho on "super-Asbos". Prosecutors - and police, who would have to supervise any order - want to make sure the restrictions work, and that means that they have to be properly monitored and designed.

Mr Laing said: "Mrs Jackson is now out. She was the lady who had been sending threatening messages continually. So even though she had convictions for doing so and was out on probation she found herself in a similar situation. The case we had was her threatening to kill Theresa May.

"She had difficulty in behaving. She felt some compulsion to act like this. Perhaps the prosecution service would not have naturally thought of that has being our first SCPO.

"SCPO do not have to be for organised crime but they tend to be. They are quite well suited for that."

Mr Laing stressed that SCPOs were not being designed to catch people out, and force them back behind bars for failing to meet their terms. So the Jackson case, he said, was a good example of the system working.

He said: "Local police officers have much more interaction with her, monitoring her. My understanding is that they have actually established a good rapport with her and she quite likes the police attention. Hopefully that will keep her on the straight and narrow."

Other convicted people who will be subject to SCPOs when they leave jail include Martin Watt, the surgeon found with three machine guns and an assassination list; and gangland figures involved in recent tit-for-tat violent feuding in Glasgow, such as David Sell. Only one of the SCPOs sought in Scotland so far has been contested.

Mr Laing hopes the orders can offer gangsters a way out of a life of crime. He said: "I like the thought of someone getting out of prison who has a whole series of conditions who knows that if they breach those conditions they are going back inside. And I like the idea of them being able to say to those who are trying to get them back in to crime "Listen, I've got a SCPO. I am not allowed to associate with you' If I do, I am in breach. It is safer if you don't contact me, if you don't use me.'

"I am not sure how realistic that is going to be but anything we can do that helps people."

"This is a new way of looking at justice. Rather than 'job done', when a person has a sentence and when they are out there are no conditions at all. We are moving to a situation where that is not the end of the story. For these people there is a period of three to five years where they are subject to a whole host of conditions."

Those conditions are tailor-made. Right now, as with Warren, they routinely involve ways of restricting contacts with known criminal associates, although this can prove tricky. Mr Laing, however, has suggested the Crown could seek more innovative measures. Like what?

He said: "By way of an example - and we are certainly not going down that road yet - apps are available that indicate where you are. Those are the sort of things could be thought about in the future as to whether you should have a device, should it be enabled, so that people actually know where you are.So, technically speaking, you could trace 'nominals' and see where they are in Scotland.

"A condition could be that you are required to have a phone.That might be a lot less invasive than having the bracelet that everyone knows who you are."

The Crown does not take SCPO lightly. Only the Lord Advocate can seek one. But it does already have other measures it can use to disrupt what Mr Laing calls "Mr Untouchables". These include civil actions under Proceeds of Crime legislation.

The English SCPO goes down that route too, making it hard for the gangster to access money when he gets out. He will be banned from holding more than £1000 in cash and will have to keep the National Crime Agency informed of every penny he earns, every holiday he takes, ever car he drives.