Sheriff Appeal Court rules SAC-imposed Restriction of Liberty Order could not be revoked by a sheriff

About this case:

• Citation:
  [2024] SAC (Crim) 9
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

Complainer Thomas Kitson had been made subject to a ROLO after pleading guilty to two charges of contraventions of the Misuse of Drugs Act 1971 in relation to production and supply of cannabis, which was later revoked by a sheriff at Stirling Sheriff Court who imposed a sentence of three months’ imprisonment. His agent argued that the sheriff’s order to quash the ROLO was incompetent and that the matter of any breach ought to have been placed before the SAC.

The bill was considered by Sheriffs Principal Aisha Anwar and Sean Murphy, with Appeal Sheriff Brian Mohan. MacFarlane, solicitor advocate, appeared for the complainer and Glancy KC for the Crown as respondent.

Fundamental nullity

Following the complainer’s plea of guilty on 13 June 2022 and deferrals in the sentencing diet relating to the unavailability of reports or the complainer failing to attend court, he was eventually sentenced to a 12-month ROLO on 29 March 2023. That disposal was appealed to the SAC, which imposed a new ROLO requiring the complainer to stay at his home address between the hours of 7pm and 7am until 29 March 2024.

Between October 2023 and January 2024 several breach reports were submitted to Stirling Sheriff Court alleging repeated failures to comply with the ROLO. The complainer denied these breaches but failed to appear at a hearing to answer the breach. A warrant to apprehend him was granted, and he was remanded in custody in January 2024 to await a proof diet.

On 20 February 2024 the complainer’s agent invited the sheriff to revoke the ROLO on the basis of concerns raised about his psychiatric condition while in prison. The sheriff revoked the ROLO and made an Assessment Order, for which the complainer was transferred to Forth Valley Royal Hospital. When the case called again in March 2024 and it was confirmed that the complainer did not have a mental disorder, the sheriff imposed a sentence of three months’ imprisonment.

For the complainer it was submitted that any breach of the ROLO ought to have been placed before the SAC given it had allowed his appeal against sentence and issued a new ROLO. In view of the 84 days he had been in custody, it was argued that no further order should be issued. The advocate depute accepted that the breaches ought to have been reported to the SAC, but submitted that the revocation of the ROLO by the sheriff therefore amounted to a fundamental nullity.

Short answer is no

Delivering the opinion of the court, Sheriff Principal Anwar summarised: “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 following a prior appeal. The short answer to that question is no.”

Turning to the specific provisions of the Criminal Procedure (Scotland) Act 1995, she explained: “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.”

She continued: “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).”

The Sheriff Principal concluded: “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.”

The Bill of Suspension was therefore passed, with Sheriff Principal Anwar noting in postscript: “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.”