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Cite as: [2024] SACCRIM 9

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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

Bill of Suspension

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;

CONTRARY to the Misuse of Drugs Act 1971, Section 4(2)(a)

(002) Between 19th April 2020 and 22

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

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.

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

may except in the case to which paragraph (b) applies, apply to the court

which made the order; or

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

except in a case to which paragraph (b) below applies, to the court which

made the order or

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.

. . . .

(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

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.

[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.