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SHERIFF APPEAL COURT
[2024] SAC (Crim) 9
SAC/2024/000138/AP
Sheriff Principal A Y Anwar
Sheriff Principal S F Murphy KC
Appeal Sheriff B A Mohan
OPINION OF THE COURT
delivered by SHERIFF PRINCIPAL A Y ANWAR
in
Bill of Suspension
by
THOMAS KITSON
Complainer
against
PROCURATOR FISCAL, STIRLING
Respondent
Complainer: MacFarlane (sol ad); Collins & Co (for Dalling Solicitors, Stirling)
Respondent: Glancy KC, AD; Crown Agent
20 August 2024
Introduction
[1]
On 13 June 2022 at Stirling Sheriff Court, the complainer pled guilty to the following
charges:
"(001) On 24th April 2020 at 114 Hilton Cowie, Stirling, you THOMAS ROBERT
KITSON did produce a controlled drug, namely Cannabis a Class B drug specified in
Part II of Schedule 2 to the Misuse of Drugs Act 1971 in contravention of Section 4(1)
of said Act;
2
CONTRARY to the Misuse of Drugs Act 1971, Section 4(2)(a)
(002) Between 19th April 2020 and 22
nd
April 2020, both dates inclusive at 114 Hilton
Cowie, Stirling, you THOMAS ROBERT KITSON were concerned in the supplying of
a controlled drug, namely Cannabis a Class B drug specified in Part II of Schedule 2
to the Misuse of Drugs Act 1971 to another or others in contravention of Section 4(1)
of the aftermentioned Act;
CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)"
[2]
Sentence was deferred to obtain a Criminal Justice Social Work Report and a
Restriction of Liberty Assessment. Thereafter sentence was deferred on five occasions due
to either reports not being available or the complainer failing to attend for sentence. A
warrant to apprehend the accused was granted on 30 November 2022. He appeared in
answer to the warrant on 27 February 2023 when the sentencing diet was again adjourned
for reports. He was ultimately sentenced to a 12 month Restriction of Liberty Order
("ROLO") on 29 March 2023 requiring him to remain within his home address between the
hours of 4.00pm and 4.00am, as a direct alternative to a custodial sentence.
[3]
That disposal was appealed to this court. On 28 June 2023 the complainer's appeal
against sentence was granted. The ROLO was quashed and this court imposed a new ROLO
requiring the complainer to stay at his home address between the hours of 7.00pm
and 7.00am until 29 March 2024.
[4]
Several breach reports were submitted to Stirling Sheriff Court alleging repeated
failures to comply with the ROLO between October 2023 and January 2024. The complainer
denied these breaches. He failed to appear at a hearing to answer the breach. A warrant to
apprehend him was granted. He appeared from custody on 26 January 2024 and a proof
diet was assigned. The complainer was remanded in custody.
[5]
On 20 February 2024, the complainer's agent invited the court to revoke the ROLO.
He explained that concerns had been raised regarding the psychiatric condition of the
3
complainer. He was described as presenting bizarrely in prison and was not engaging with
treatment there. The sheriff revoked the ROLO and instead made an Assessment Order in
terms of section 52D of the Criminal Procedure (Scotland) Act 1995. Sentence was deferred
until conclusion of the Assessment Order. The complainer was transferred to Forth Valley
Royal Hospital for the purposes of the Assessment Order.
[6]
On 19 March 2024 the case called again in Stirling Sheriff Court. A psychiatric report
confirmed that the complainer did not have a mental disorder and did not require ongoing
treatment. His previous behaviour was described as being related to drug induced
psychosis and was resolved without treatment. The ROLO having been revoked, the sheriff
imposed a sentence of three months' imprisonment reduced from a headline figure of
six months.
Submissions for the complainer
[7]
The solicitor advocate for the complainer moved the court to quash the order of the
sheriff on 19 March 2024 and to make no further order. Any breach of the ROLO ought to
have been placed before this court, not Stirling Sheriff Court, given that this court had
allowed the complainer's appeal against sentence and issued a new ROLO on 28 June 2023.
The process in the sheriff court was, therefore, incompetent.
[8]
The complainer had been in custody for 84 days until he was granted interim
liberation on 19 April 2024. In view of the time already served, the complainer's position
was that no further order should be issued.
[9]
It was accepted that the ROLO was revoked further to a motion by the complainer on
20 February 2024; however, notwithstanding that, the position remained that the process in
the sheriff court was incompetent.
4
Submissions for the Crown
[10]
The advocate depute accepted that, in terms of sections 245F of the Criminal
Procedure (Scotland) Act 1995, only the court that imposed the ROLO could determine any
breach of it. The breaches made by the complainer ought to have been reported to this
court. That being so, the advocate depute submitted that the revocation of the ROLO by the
sheriff and the following procedure amounted to a fundamental nullity.
Legislation
[11]
The following provisions of the Criminal Procedure (Scotland) Act 1995 were
referred to:
"245E. Variation of restriction of liberty order
(1)
Where a restriction of liberty order is in force either the offender or any person
responsible for monitoring his compliance with the order
a)
may except in the case to which paragraph (b) applies, apply to the court
which made the order; or
b)
where a copy of the order was, under section 245A(5)(a)(ii) or this Act or
subsection (7)(a) below, sent to the clerk of a different court, apply to that
different court (or, if there has been more than one such sending, the
different court to which such a copy has most recently been so sent) for a
review of it.
245F. Breach of restriction of liberty order
(1)
If at any time when a restriction of liberty order is in force it appears
a)
except in a case to which paragraph (b) below applies, to the court which
made the order or
b)
where a copy of the order was, under section 245A(5)(a)(ii) or 245E(7)(a)
of this Act, sent to the clerk of a different court, to that different court (or,
if there has been more than one such sending, the different court to which
such a copy has most recently been so sent),
that the offender has failed to comply with any of the requirements of the order
the court in question may issue a citation requiring the offender to appear before
it at such time as may be specified in the citation or, if it appears to that court to
be appropriate, it may issue a warrant for the arrest of the offender.
. . . .
5
(2) If it is proved to the satisfaction of that court that the offender has failed without
reasonable excuse to comply with any of the requirements of the order it may by
order--
(a) without prejudice to the continuance in force of the order, impose a fine
not exceeding level 3 on the standard scale;
(b) vary the restriction of liberty order; or
(c) revoke that order."
Decision
[12]
The question in this appeal is whether the sheriff at first instance can competently
entertain breach proceedings in respect of a ROLO imposed by the Sheriff Appeal Court
("SAC") following a prior appeal. The short answer to that question is: no.
[13]
The import of section 245F(1) is clear; if at any time when the ROLO is in force, it
appears "to the court which made the order" that the offender has failed to comply with any
of the requirements of the ROLO, "the court in question" may require that the offender be
brought before the court by citation or by arrest. Sections 245A(5)(a)(ii) or 245E(7)(a) do not
apply to the present case; they apply where the offender resides or proposes to reside in a
place outwith the jurisdiction of the court which made the ROLO. Where, upon
determination of an appeal, the SAC imposes a ROLO, it is "the court which made the
order"; that accords with the ordinary and natural meaning of the language in
section 245F(1). It follows that in those circumstances, only the SAC may cite the offender or
issue a warrant for his apprehension where it appears to it that the offender has failed to
comply with any of the requirements of the ROLO. We note that the complainer's solicitor
invited the sheriff to revoke the ROLO imposed on 29 March 2023, however, the proceedings
before the sheriff were incompetent; the ROLO imposed by the SAC could not be revoked
by the sheriff.
6
[14]
We shall pass the Bill. We were not invited to address the complainer's alleged
breaches of the requirements of the ROLO. We note that the complainer has been denied his
liberty for a period of 84 days; that is a matter to which this court will have regard, should
the alleged breaches of the ROLO be reported to this court.
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