On 7 April 1999, Francis Kevin Kelly appeared at the High Court in Dundee, where he pleaded guilty to two serious sexual offences committed on the same day. The first charge involved an indecent breach of the peace, during which he masturbated and exposed his private parts to a female complainant. The second charge was for assaulting another female complainant: he placed his hand over her mouth, pulled her to the ground, compressed her mouth and nose, compelled her to lie face down, lifted her clothing, handled her buttocks, seized hold of her, and forced her to take him to a particular house, entering it with her, all to her injury. These acts were explicitly sexual in nature and demonstrated a pattern of predatory behaviour towards women.
Kelly's criminal history exacerbated the severity of the case. In August 1988, he was convicted of assaulting a young female in Airdrie Sheriff Court, involving an attempt to force her to masturbate him while under the influence of alcohol; he received 18 months' detention. In February 1991, he was convicted in Glasgow Sheriff Court of two charges of assault and robbery against prostitutes, which included sexual elements related to disputes over payment. In June 1995, he was sentenced to four years' imprisonment in Edinburgh High Court for assault and robbery without a sexual element. At the time of the 1999 offences, Kelly was on licence from this sentence, which had been recalled in February 1999 after 51 days on remand.
Psychiatric reports by Professor Cooke, available to the sentencing judge, indicated a high risk of Kelly reoffending in a sexual manner, with concerns that his behaviour might escalate to more serious offences. A supplementary report noted difficulties in predicting treatment outcomes, recommending several years of intervention for the best chance of success. A social enquiry report from Dundee City Council described Kelly as presenting a serious risk of re-offending with high potential harm to victims, though it observed that the structure of a finite sentence could incentivise participation in sex offender programmes.
On 4 June 1999, Lord Cowie sentenced Kelly to a discretionary life imprisonment, designating a minimum custodial period of three years and six months before parole eligibility, without backdating due to his prior licence recall. This sentence aimed to protect the public indefinitely, with lifelong supervision if released. Kelly appealed, arguing for an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995, introduced in 1998 to combine a custodial term with up to 10 years' community supervision for sexual or violent offenders.
The appeal was heard by the High Court of Justiciary on 21 and 22 June 2000, with the opinion delivered on 9 August 2000 by Lord Justice-General Rodger, alongside Lord Allanbridge and Lord Caplan. The court allowed the appeal, ruling that the life sentence was excessive given the availability of extended sentences designed for public protection in sexual offence cases. As per the court's opinion: 'Where such a finite sentence can provide the necessary protection, Parliament's intention must have been that a finite sentence should be preferred to an indefinite life sentence.' They quashed the life sentence and imposed an extended sentence: a custodial term of seven years (deeming this appropriate based on the offences and prior convictions, aligning with guidance from O'Neill v HM Advocate 1999 SCCR 300) and the maximum extension period of 10 years for supervision. Kelly could be considered for release after half the custodial term (3.5 years) and must be released after two-thirds (approximately 4 years 8 months), remaining on licence until the extension's end. Recall for breaches could extend detention up to the full 17 years. The decision emphasised that this structure sufficiently protected the public while adhering to parliamentary intent (2001 J.C. 12).