Appellant: McIntosh, Advocate; John Pryde & Co, Edinburgh

Respondent: Kearney, AD; Crown Agent

10 September 2013

[1] On 15 August 2012 the appellant pled guilty to a charge of being in possession in a public place of a knife contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 49(1). On 12 September 2012, after obtaining reports, Sheriff Miller imposed a community payback order with an offender's supervision requirement for a period of 18 months and a restriction of liberty order imposed under section 245A(1) of the Criminal Procedure (Scotland) Act 1995. The latter order required that, for a period of four months, the appellant must remain within his stated domicile, an address in Riddrie in Glasgow, between the hours of 7.30 pm and 7.30 am each day. In January 2013 the court received a breach report from the company that was responsible for monitoring the appellant's restriction of liberty order. The appellant denied the alleged breach of the restriction of liberty order and, following sundry procedure, a proof was fixed for 14 March. On that date the proof called before Sheriff Reid, who heard evidence and found it established that the appellant had failed to comply with the requirements of the restriction of liberty order. He accordingly adjourned the diet to obtain a criminal justice social work report and continued the case to call again before Sheriff Miller who had imposed the original sentence.

[2] Sheriff Reid made detailed findings in fact following the proof. So far as material, these are as follows. Between 28 December 2012 and 12 January 2013, the appellant was not within his domicile address between the specified hours, 7.30 pm and 7.30 am. On 28 December 2012 the appellant had committed a criminal offence. We were informed that this was a domestic breach of the peace. As a result he was lawfully arrested by police officers at his home and was held in custody pending his first appearance before a court. He appeared in Glasgow Sheriff Court on 31 December and tendered a plea of guilty to that offence, the breach of the peace. Thereafter he was again remanded in custody until 21 January 2013 pending sentence. On the latter date he was liberated from custody. During the period when he was in custody the electronic monitoring equipment required to enforce the restriction of liberty order was removed from the appellant's house. At the proof, the appellant's solicitor submitted that a case of breach had not been made out and invited dismissal of the application. This was refused and evidence was led from the appellant. The appellant admitted that he had been arrested on 28 December and had thereafter been in custody until 21 January. Consequently he had not been at his home address as required by the restriction of liberty order between those dates. He stated that he had not asked to be released from custody because there was no chance that that would be granted. Sheriff Reid held that, on the basis of the whole evidence, he was satisfied that the appellant had, without reasonable excuse, failed to comply with a requirement of the restriction of liberty order, namely that for a period of four months he should be within his domicile address each day between 7.30 pm and 7.30 am. The sheriff stated that if one were to take a narrow approach it might possibly be argued that the appellant's absence from his domicile address was attributable to matters outwith his control. On that basis it might be said that there was no breach of the restriction of liberty order or that the appellant had a reasonable excuse for his non-compliance. The sheriff nevertheless rejected such a construction. He took the view that the reason that the appellant was in custody was because he had committed a further criminal offence and had been lawfully arrested consequentially upon that. Consequently the fact that he was not at his domicile address during the specified period was a direct, natural and foreseeable consequence of his own voluntary criminal act.

[3] The appellant has now appealed against the sheriff's decision. At an earlier stage it was decided that the appeal might competently proceed as a sentence appeal and that is the procedure that has been followed. It appears that there is no authority directly addressing the meaning of the expression "reasonable excuse" in the context of restriction of liberty orders. For the appellant it was submitted that there was a reasonable excuse in this case when the order was read in context. The appellant had no say in his arrest on 28 December and did not leave his home voluntarily at that point. He had no option other than to comply with the requirements of the police officers who arrested him and, consequently, he had a reasonable excuse for not complying with the terms of the order.

[4] We heard submissions for the Crown. It was submitted by them that the appellant's argument involved separating the appellant's custody from the offence that gave rise to custody. The advocate depute submitted that that was wrong. The custody was a direct and foreseeable consequence of the appellant's committing the offence. That was in effect what the sheriff had said. The advocate depute also drew our attention to the case of D v Kennedy, 1988 SLT 55. This was a case under section 32 of the Social Work (Scotland) Act 1968, the issue being whether a child had failed to attend school regularly without reasonable excuse. The child had in fact been excluded from the school as a result of certain allegations made against him. These were unproven. The advocate depute drew our attention to the opinion of the Lord President who stated that, on the facts of that case, because the allegations were unproven it could not be said that the child had failed to attend school without reasonable excuse. The Lord President went on, and this is the point on which the advocate depute founded, to recognize that the answer might have been different if it had been established that an exclusion order had been made necessary by reason of actings of misconduct on the part of the excluded child. Two points are relevant here. First, the Lord President made it clear that the court were not expressing any concluded opinion on what the result might have been if it were established that the exclusion was the result of the child's own actings. Secondly, that case was concerned with very different legislation from the legislation which we have to consider in the present case. In the present case, we are concerned with a sentence which involves penal restrictions on an accused person. For that reason we do not find any help in the case of D v Kennedy.

[5] In the light of the submissions that we have heard we are of the opinion that this appeal must be allowed. When the appellant was taken into police custody on 28 December 2012 he had no say in the matter. He was arrested for another offence and was thereafter kept in custody, first, in the police station and thereafter in prison. If he had failed to comply with the instructions of the police officers who arrested him, he would undoubtedly have committed a criminal offence. In these circumstances it seems clear to us that the appellant had a reasonable excuse for not being within his domicile address during the specified periods. He was unable to be there because he was in custody, under compulsion. Moreover, committing a further offence is not a breach of a restriction of liberty order according to the terms of section 245A of the 1995 Act. It would be anomalous if the commission of an offence were treated as giving rise to a breach through its indirect effects.

[6] The sheriff rejected these arguments. He accepted that on a narrow approach it might plausibly be argued that the appellant's failure to comply with the restriction of liberty order was attributable to matters outwith his control. He rejected such an argument, however, on the ground that the appellant must take responsibility for his own voluntarily action in committing a criminal offence, and for the direct, natural and foreseeable consequences of that voluntary action. Consequently the sheriff held that the fact that the appellant was in custody was not a reasonable excuse.

[7] In our opinion, this attaches too much importance to the voluntary nature of the act that led to the appellant's arrest and remand in custody and insufficient weight to the fact that it was the appellant's arrest and remand that prevented him from complying with the order. In this case, the appellant admitted that he had committed an offence during the currency of the restriction of liberty order and pled guilty at the earliest opportunity, on 31 December 2012. He could, however, have been arrested and remanded on a charge to which he pled not guilty and of which he was subsequently acquitted. In such a case it could not be said in any sense that the apparent contravention of the order was the result of the appellant's voluntary act. Equally, the appellant might have been arrested and remanded on a charge relating to events before the restriction of liberty order took effect. In that event, it could not be said that the apparent contravention of the order was the result of a voluntary act during the order, and in that event possible contravention of the order could not be said to be a realistic possibility when the voluntary act was committed. The crucial point is, in our opinion, that the arrest and remand in custody were not voluntary in any real sense. On that basis we consider that there must be a reasonable excuse for non-compliance in any case where a person subject to a restriction of liberty order is taken into custody. Indeed, that conclusion appears to us to represent common sense.

[8] For the foregoing reasons, this appeal is allowed.

SM