Proof, Not Interrogation: Contested SRO Breaches Require an Evidential Hearing and Strict Fairness Protections — Shields v HMA [2025] HCJAC 44

Proof, Not Interrogation: Contested SRO Breaches Require an Evidential Hearing and Strict Fairness Protections — Shields v HMA [2025] HCJAC 44

Citation: [2025] HCJAC 44 (Appeal Court, High Court of Justiciary, Scotland). Opinion of the Court delivered by Lord Doherty, with Lord Armstrong and Lord Clark concurring.

Procedural posture: Appeal under section 19 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 against findings of breach of a Supervised Release Order (SRO) and a sentence of 9 months’ imprisonment imposed for that breach.

Disposition: Findings of breach and sentence quashed. No further proceedings to be taken, the appellant having served the sentence.

Introduction

This appeal arose from the handling of alleged breaches of a supervised release order imposed on Ryan Shields following convictions for domestic abuse-related offending. The Appeal Court was invited to scrutinise the sheriff court procedure under section 18 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (the 1993 Act) after a sheriff, in the absence of defence representation, conducted what he described as a “discussion” with the appellant, treated matters as admitted, and rejected a denial of another alleged breach without hearing evidence.

The central legal issue was procedural: what process is required under section 18 of the 1993 Act when an alleged breach of an SRO is not admitted? The broader questions engaged were the limits of judicial questioning in contested breach proceedings, the safeguards owed to unrepresented accused persons, and the status and reasonableness of supervising officers’ written directions issued under an SRO.

The Crown accepted the appeal, acknowledging that the sheriff’s approach was “irregular and fundamentally unfair.” The Appeal Court quashed the findings and sentence, emphasising that a contested SRO breach must be established by proof, not by inquisitorial judicial questioning or informal “discussion.”

Summary of the Judgment

  • Section 18 of the 1993 Act requires that, where an alleged breach of an SRO is denied, the court conducts a proof (i.e., an evidential hearing) on the disputed matters. This is so even though section 18(3) provides that the evidence of one witness is sufficient.
  • The sheriff’s procedure—engaging in a detailed “discussion,” pressing the unrepresented appellant on the contents of breach reports, treating refusals as admissions of breach, and purporting to reject a clear denial of a no-contact breach—all without hearing evidence—was a procedural impropriety and fundamentally unfair.
  • Particular care is required when the person alleged to be in breach is unrepresented; judicial questioning must not stray beyond clarifying whether the breach is admitted or denied.
  • The Appeal Court quashed the findings of breach and the 9-month sentence. Given that the appellant had already completed half of that sentence and had been unconditionally released (per section 18(4)), the Court directed that there be no further proceedings on the alleged breaches.
  • While not determining the point, the Court noted that there were “cogent arguments” that certain written directions (a blanket exclusion from Motherwell and a requirement to reside in Kilsyth) may have been unreasonable on the facts.

Detailed Analysis

A. Statutory Framework (Section 18 of the 1993 Act)

Section 18 governs breach proceedings for SROs. Key features include:

  • Trigger: The court is informed of a failure to comply by statement on oath from an appropriate officer (s18(1)).
  • Procedure and proof: If it is proved to the satisfaction of the court that there has been a failure, specific sanctions follow (s18(2)). Crucially, if the alleged breach is denied, proof is required. Section 18(3) modifies ordinary Scottish corroboration rules by providing that “evidence of one witness shall be sufficient.”
  • Sanctions: The court may order return to prison for a specified period calibrated to the interval between the “first proven failure” and the SRO end date (s18(2)(c)); or may vary the SRO as could have been done under s15(4) (s18(2)(b)).
  • Unconditional release: Upon expiry of the ordered return period, the person is released unconditionally (s18(4)).

The architecture of section 18 presupposes a properly constituted evidential hearing on disputed facts. It also requires identification of the “first proven failure,” a temporal datum central to calculating any return-to-prison period. Without proof, this cannot lawfully be determined.

B. Precedents Cited

The opinion did not cite prior case authorities; the Court’s analysis turned on the structure and requirements of section 18 and on general principles of procedural fairness. The absence of external citation underscores the clarity of the statutory pathway and the obviousness of the procedural error.

Although not expressly invoked in the judgment, the Court’s approach coheres with foundational adversarial principles and fair-hearing guarantees: where a material fact is disputed, it must be resolved by admissible evidence tested in open court, not by judicial interrogation or administrative assumptions.

C. The Court’s Legal Reasoning

The Court’s reasoning may be distilled into several propositions:

  • Denial means proof. The accused clearly denied the alleged breaches. Section 18 requires the court to adjudicate disputed allegations by receiving evidence. The sheriff’s substitution of “discussion” for proof was a legal error.
  • Limits on judicial questioning. While a court may clarify whether alleged breaches are admitted or denied—especially where the accused is unrepresented—judicial questioning must not become intrusive or interrogatory. It must not extract quasi-admissions or resolve contested facts without evidence. The sheriff’s approach crossed that line.
  • Rejection of a denial requires evidence. The sheriff purported to “reject” the appellant’s denial of no-contact attempts based on a breach report and perceived inconsistencies, without calling the supervising officer or any witness. That was “wholly inappropriate.”
  • Candour about efficiency cannot trump fairness. The Court accepted the sheriff may have sought efficiency but held that expedition is never a lawful substitute for due process. The procedural safeguard of proof is not optional.
  • Unrepresented accused require heightened vigilance. The Court highlighted the need for special care with unrepresented persons—particularly those with possible educational or neurodiverse needs—to ensure understanding and to avoid unfair pressure. Questioning must remain carefully limited once a denial is registered, unless and until the accused elects to give evidence at proof.

D. Reasonableness and Scope of Written Directions under SRO Condition 9

The SRO here contained standard requirements, including Condition 1 (reporting) and Condition 9 (compliance with written instructions of the supervising officer). Three written directions were issued pre-release:

  • No contact with the complainer and three others (9(i)).
  • Do not enter Motherwell without prior approval (9(ii)).
  • Reside only at accommodation approved by the supervising officer—identified as a property in Kilsyth (9(iii)).

The appellant argued that 9(ii) and 9(iii) were unreasonable: his family and tenancy were in Motherwell, he would be isolated in Kilsyth, and he had safety concerns tied to a prior case. While the Appeal Court did not decide the reasonableness point, it noted “cogent arguments” that these directions may indeed have been unreasonable in the circumstances.

Important implications flow from this:

  • Directions must be rational, necessary, and proportionate. Supervising officer directions are not freestanding penal measures. They must be anchored in the statutory purpose of supervision and tailored to risk management and rehabilitation. A blanket town-wide exclusion or forced relocation may require especially strong justification.
  • Temporal application. Directions communicated before release only bite upon release; refusal to “accept” a direction pre-release does not itself constitute a breach during custody. Alleged breach must be grounded in post-release conduct contrary to an extant requirement.
  • Pleading clarity. Breach reports must clearly specify the condition/direction allegedly breached and the conduct relied upon. Ambiguity (as here, where the first report did not specify 9(ii) or 9(iii)) complicates proof and can prejudice fairness.

E. The Addendum Allegation: No-Contact Breach via Phone Calls

The addendum alleged that phone inspection suggested 15 attempted contacts with the complainer on 13 January. The appellant denied this. The sheriff accepted the addendum and rejected the denial without sworn testimony. The Court held that such a contested factual allegation required proof—calling the supervising officer (the “one witness” sufficient under s18(3)), establishing the provenance and interpretation of the phone data, and permitting cross-examination. Without that process, the sheriff’s finding could not stand.

F. Remedy and Disposition

Given the fundamental procedural defect, the Court quashed the breach findings and the 9-month sentence. Ordinarily, such an outcome could be coupled with a remit for a fresh, fair hearing. Here, the Court directed that there be no further proceedings because the appellant had already served half of the sentence and had been unconditionally released under section 18(4). In context, this was a pragmatic justice-based endpoint, avoiding duplication and additional unfairness.

Impact and Future Implications

This judgment has immediate practical consequences for the conduct of SRO breach hearings in Scotland:

  • Non-admission requires proof. Courts must hold an evidential hearing whenever an alleged SRO breach is denied. “Paper” determinations or judicial interrogation are impermissible substitutes.
  • Bench conduct in unrepresented cases. Sheriffs should:
    • Clearly explain the purpose of the hearing and the options (admit/deny).
    • Confirm whether the accused wishes to seek or re-engage legal representation; consider a short adjournment to facilitate that.
    • Once a denial is recorded, refrain from substantive factual questioning; proceed to proof.
    • Give appropriate directions about the right to give evidence or to remain silent.
  • Prosecutorial practice. Breach reports should specify:
    • The precise condition/direction allegedly breached.
    • The conduct relied upon and the date of the “first proven failure,” in terms compatible with s18(2)(c)(ii).
  • Supervising officers’ directions. Officers should ensure that written directions are:
    • Proportionate to risks and needs, evidenced, and capable of being defended as reasonable.
    • Feasible for the supervisee to comply with (e.g., address housing availability, safety concerns, family ties).
    • Properly recorded and communicated, with clarity on when they take effect.
  • Defence practice. Practitioners should:
    • Challenge overbroad or unreasonable directions, especially blanket geographic bans or mandated relocation, with supporting evidence.
    • Insist on proof where allegations are disputed, highlighting the one-witness sufficiency rule but the necessity of live evidence.
  • Fairness culture. The decision reinforces that efficiency cannot displace due process. It aligns with broader fair-trial norms that factual disputes must be resolved by admissible evidence in an adversarial hearing.

Complex Concepts Simplified

  • Supervised Release Order (SRO): A court-imposed post-custody supervision regime with conditions, aimed at safe reintegration and public protection.
  • Condition 9 “written directions”: Directions given by the supervising officer which the person must obey; they must be reasonable, proportionate, and connected to the supervision aims.
  • Proof (Scottish procedure): An evidential hearing (trial) at which witnesses give sworn evidence and are cross-examined; the court makes findings based on that evidence.
  • Section 18(3) “one witness sufficient”: In SRO breach proceedings, corroboration is not required. A single credible witness can suffice—but still must give evidence at proof if matters are denied.
  • “First proven failure” (s18(2)(c)(ii)): The date of the earliest breach established by proof; it determines the maximum return-to-prison period the court may order.
  • Unconditional release (s18(4)): Once the ordered period of return to prison ends, release is without licence conditions. This underscores why accuracy and fairness at the breach stage are critical.
  • Judicial questioning limits: Judges may clarify procedural posture but must not conduct inquisitorial interrogation to resolve contested facts; resolution requires evidence.

Key Observations Specific to This Case

  • Pre-release “refusal” is not a breach. Directions communicated on 30 December could not be breached until the SRO took effect on release. Treating refusal to accept them as an immediate breach was conceptually unsound.
  • Misalignment between breach report and findings. The first breach report did not specifically refer to 9(ii) or 9(iii), yet the sheriff treated those as the foundation for findings. Precision in the report and proof is essential.
  • Vulnerability considerations. The appellant’s history of dyslexia and ADHD (not known to the sheriff) illustrates why guarded judicial handling of unrepresented persons is critical.
  • No-contact allegation required proof. Phone-based allegations (15 attempted calls) demand evidential presentation and testing; they cannot be upheld on the papers or by judicial evaluation of an untested report.

Conclusion

Shields v HMA [2025] HCJAC 44 sets a clear procedural baseline for supervised release order breach proceedings in Scotland: when an alleged breach is denied, the court must hold a proof. Judicial “discussion” or interrogation cannot replace evidence, and unrepresented accused must be protected from undue pressure or inadvertent self-incrimination. The decision also signals that supervising officers’ written directions—especially sweeping geographical exclusions or forced relocation—are open to reasonableness scrutiny.

The ruling strengthens the fairness architecture of SRO enforcement by insisting on formality where liberty is at stake. It will guide sheriffs, prosecutors, defence practitioners, and supervising officers alike. The key takeaway is simple but vital: proof, not interrogation, decides a denied breach.

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