Bail condition not to contact former partner both ‘lawful and appropriate’, appeal judges rule

The Appeal Court of the High Court of Justiciary ruled that the special condition, which was imposed by the sheriff to prevent further offending, was both “lawful” and “appropriate”.

‘Threatening behaviour’

The Lord Justice General, Lord Carloway, sitting with Lord Drummond Young and Lord Turnbull, heard that the appellant Ross Pollock-Smith, 45, appeared from custody on 19 September 2018 on a complaint which libelled a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, namely behaving in a “threatening or abusive manner” likely to cause a reasonable person to suffer “fear or alarm”, by shouting, swearing and uttering offensive remarks and threats of violence towards the police.

The offence, which was said to have been racially aggravated and occurred after the appellant had called for police assistance while intoxicated, was committed when he was on four bail orders.

Having been remanded in custody the appellant pled guilty on 1 October 2018, but sentence was deferred on several occasions, partly because the appellant had a number of outstanding complaints, including a domestic fire-raising involving his former partner “LM” and her mother, for which he was sentenced to 10 months’ imprisonment.

When the case called on 9 January 2019 sentence was deferred again for six months so that a supplementary criminal justice social work report (CJSWR) could be prepared, but the date selected coincided with the appellant’ s prospective date of release from custody, which would then allow the sheriff to consider imposing some form of supervision in the community.

Although the offence did not involve Ms M, the CJSWR stated that the appellant “continued to be vitriolic about Ms M and mother” and that, given his “attitude, history of chaos and ongoing chronic alcohol issues”, he was at “imminent risk of re-offending”.

‘Special condition’

The case called on 11 July 2019 and was deferred again until 30 October 2019 for the appellant to be of “good behaviour”, but for the reasons given in in the CJSWR it was made a condition of bail that the appellant should not contact or communicate with Ms M or attempt to do so.

The sheriff considered that the special condition was “necessary” to secure with the compliance with the standard bail condition not to commit further offences.

However, the appellant challenged the bail condition, only for his appeal to be refused by the Sheriff Appeal Court on the basis that section 24(4)(b) of the Criminal Procedure (Scotland) Act 1995 provided that the test for the imposition of a condition was that it was “necessary to secure…that the standard conditions are observed”, which was what the sheriff had reasoned when, as a matter for his discretion, he imposed the condition.

The appellant then appealed to the High Court of Justiciary, arguing that the condition was unnecessary.

It was pointed out that, when sentencing the appellant for the offence involving Ms M, the sheriff had not imposed a non-harassment order or any period of post-release supervision.

Given that one of the standard bail conditions was not to re-offend, there was already a sanction for further offending.

It was argued that the bail order had only been imposed in order to allow the special condition to be imposed, and therefore it could not be said that the condition was necessary to secure compliance with the standard conditions.

It was also submitted that the appellant was no longer in a relationship with Ms M, who suffered from mental health and addiction problems, and that he had “no desire” to resume any such relationship.

‘Fully merited’

Refusing the appeal, the judges ruled that special bail condition imposed was appropriate in the circumstances.

Delivering the opinion of the court, the Lord Justice General said: “The sheriff has attempted to address the appellant’s problems, which, for a man of his age, are of relatively recent origin and are alcohol-related.

“The sheriff has done this by trying to ensure that, post-release, the appellant keeps out of trouble by making sure that he is subject to bail conditions pending final disposal of the case.

“The special condition selected is fully merited given the information in the CJSWR. There is a rational connection between the condition and the need to prevent further offending.

“The condition is not disproportionate. It is necessary to prevent the appellant from committing further offences, particularly those involving Ms M. As such it is, in terms of section 24 of the 1995 Act, birth lawful and, as a matter for the sheriff’s discretion, appropriate.”