High Court quashes sheriff’s findings of breach of release conditions due to unfair hearing

About this case:

• Citation:
  [2025] HCJAC 44
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Doherty

Appellant Ryan Shields was sentenced to nine months’ imprisonment for the alleged breach of his SRO. On appeal his counsel argued that the sheriff had conducted the hearing in respect of the alleged breaches in an irregular manner and failed to have regard to the legitimate issues raised by the appellant about the reasonableness of the order’s conditions.

The appeal was heard by Lord Doherty, Lord Armstrong, and Lord Clark. W Culross, advocate, appeared for the appellant and Harper KC, advocate depute for the Crown.

Fundamentally unfair

On 18 October 2024, the appellant pled guilty to a charge of behaving in a threatening and abusive manner contrary to section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and to a further charge of assault to injury, both directed at his partner, X. He was sentenced to 22 months’ imprisonment, to be followed by a nine-month supervised release order. Condition 9 of the order obliged him to comply with any written instructions from his supervising officer.

At a meeting four days before his release, the appellant’s supervising officer advised him of three written instructions made in terms of Condition 9. Condition 9(i) stated he was not to contact X or other named individuals, Condition 9(ii) restricted him from going to Motherwell without prior approval, and Condition 9(iii) required him to reside at approved accommodation. A property in Kilsyth had been identified for him in connection with Condition 9(iii).

The appellant considered Conditions 9(ii) and (iii) to be unreasonable, as his family lived in Motherwell and he had the tenancy of a house there. Additionally, in April 2020 he had been acquitted of a charge of murder having advanced a defence of self-defence, and he considered Kilsyth unsafe for him as members of the deceased’s extended family lived there. On the day of his release, he reiterated that he intended to reside at the house where he had a tenancy and did not attend at the Housing Department.

On 15 January 2025, the appellant’s phone was inspected. Examination of it suggested that on 13 January he had made 15 attempts to contact X, which he denied making. Before the sheriff, the appellant, who was unrepresented, admitted that he had refused to accept the written directions which he found unreasonable, and he was found in breach of the SRO.

It was submitted that the appellant had made it tolerably clear that his position was that Conditions 9(ii) and (iii) were unreasonable. Instead of duly recording these matters and having a proof on the disputed issues, the sheriff quizzed the appellant on the content of the breach reports and proceeded to find the breaches were established. The procedure followed was fundamentally unfair, and there were cogent arguments that the disputed conditions were unreasonable in the circumstances.

Intrusive, insistent, and interrogatory

Lord Doherty, delivering the opinion of the court, began by observing: “It is clear from the terms of section 18 [of the Prisoners and Criminal Proceedings (Scotland) Act 1993] that if an accused denies a breach the proper procedure is for there to be a proof on the disputed matters, with evidence led by the Crown and the defence (if they so elect).”
He then noted the personal circumstances of the appellant, adding: “In some cases, where an unrepresented accused’s position as to an alleged breach is unclear, it may be appropriate to give him the opportunity to clarify matters. However, in such circumstances great care is required that the accused understands the purpose and significance of any questions he is asked; and that, once he has indicated denial of the breach, he is not required to answer further questions in relation to that unless, in the course of a proof, he elects to give evidence.”

Considering the appropriateness of the procedure in the present case, Lord Doherty said: “The sheriff may have been motivated by a desire to deal with the case efficiently. Unfortunately, while progress was swift, there was procedural impropriety and unfairness. The sheriff’s questioning of the appellant went far beyond the proper bounds of careful enquiry to clarify whether the alleged breaches were denied.”

He concluded: “Our clear impression is that the nature of the ‘discussion’ was too intrusive, insistent, and interrogatory. Moreover, the sheriff went so far as to purport to reject the appellant’s clearly stated denial of attempting to contact X in breach of Condition 9(i). That was wholly inappropriate. Like the other disputed matters, it was a matter which could only be determined by hearing evidence.”

The High Court therefore allowed the appeal and quashed the findings of breach and the sentence of imprisonment.