Summary of Opinion — Appeal Court, High Court of Justiciary ([2025] HCJAC 44)
Factual and Procedural Background
The Appellant was indicted and at first diet on 18 October 2024 at the Sheriff Court. He pled guilty to an offence of threatening and abusive behaviour contrary to section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 and to an assault to injury charge. The alleged victim in both charges was the Appellant's partner, referred to in the opinion as the complainant.
On 15 November 2024 the Appellant was sentenced to 22 months' imprisonment, to be followed by a supervised release order (SRO) of 9 months. The custodial sentence was backdated to 5 February 2024.
The SRO included Condition 1 (reporting to a supervising officer) and Condition 9 (complying with any written instructions from the supervising officer). On 30 December 2024, the supervising officer conveyed three written instructions under Condition 9: (i) no contact with the complainant and three other specified persons; (ii) not to enter a particular town ("The City") without prior approval; and (iii) to reside only at accommodation approved by the supervising officer (a property in another town, "The Town", had been identified).
At the 30 December meeting the Appellant indicated he considered instructions (ii) and (iii) unreasonable, explaining his family lived in The City and he held a tenancy there. He expressed safety concerns about living in The Town due to prior events (the opinion records an acquittal on a different serious charge in April 2020 and that extended family of the deceased lived in The Town). He was told he would be collected from prison on the day of release by his supervising officer at 11am and was warned that failure to comply with the conditions would amount to immediate breach and would lead to a breach report.
On 3 January 2025 the Appellant left prison in the company of family rather than waiting to be collected by the supervising officer; he later attended a meeting with that officer, reiterated his intention to live at his tenancy in The City, but did not attend the Housing Department as requested.
A breach report dated 3 January 2025 assessed the Appellant as in breach of Condition 1 and of the residence requirement. An addendum dated after 15 January recorded alleged attempts (15 attempts) on 13 January 2025 to contact the complainant; the Appellant denied making those attempts.
A hearing on the alleged breaches was held on 4 March 2025 before a Sheriff. The Appellant was initially represented by a solicitor but was unrepresented when the case called for hearing. The Sheriff questioned the Appellant at length, recorded that the Appellant admitted refusing to accept written directions under Condition 9 (specifically instructions (ii) and (iii)), and rejected the Appellant's denial of attempting to contact the complainant. The Sheriff found breaches of the SRO, remanded the Appellant, and on 7 March 2025 sentenced him to 9 months' imprisonment for the breach.
The Appellant appealed the findings and sentence in terms of section 19 of the 1993 Act. When the appeal was lodged the Appellant was serving the 9‑month sentence; shortly before the appeal hearing he had been released after serving half the sentence, which the court notes resulted in unconditional release under section 18(4) of the 1993 Act.
Legal Issues Presented
- Whether, where an accused denies breach of a supervised release order, the correct procedure under section 18 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 is to hold a proof with evidence, and whether the Sheriff erred by dispensing with such a proof.
- Whether the procedure adopted by the Sheriff in questioning an unrepresented Appellant (including intrusive and interrogatory questioning and rejection of a clear denial) was irregular and rendered the proceedings fundamentally unfair.
- Whether the particular conditions imposed (Conditions 9(ii) and 9(iii)) were unreasonable in the circumstances such that they affected the fairness of the breach process (as raised in submissions).
Arguments of the Parties
Appellant's Arguments (as advanced by counsel)
- The hearing procedure was unprecedented, irregular, and fundamentally unfair.
- Section 18 requires that, where a breach is denied, there should be a proof with evidence led by the Crown and the defence; the Appellant clearly denied the breaches and that should have been recorded and investigated by way of proof.
- Instead of conducting a proof, the Sheriff conducted an intrusive questioning session, effectively putting the Appellant on trial without evidence being led and without the protections of a proof.
- The Appellant had made it clear he considered Conditions 9(ii) and 9(iii) unreasonable; that issue and other disputed facts should have been subject to a proper evidential process.
Respondent's Position (as represented in the appeal)
- The advocate depute conceded that the procedures at the sheriff hearing were irregular and fundamentally unfair and accepted that the findings of breach and the sentence should be quashed.
- It was also accepted that there were arguable points that the relevant Conditions (9(ii) and 9(iii)) might have been unreasonable in the circumstances and thus merited proper consideration by way of proof.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court began by citing the relevant provisions of section 18 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 and observed that the statute plainly contemplates that, if a person denies a breach, the proper procedure is for a proof to be held with evidence led by the Crown and, if the defence elects, by the defence.
The Court then considered the particular circumstances of the Appellant. The Justice Social Work Report disclosed that the Appellant had additional educational and behavioural needs during childhood, left school early, and had dyslexia and attention deficit hyperactivity disorder; although the Sheriff who conducted the hearing was unlikely to have known those personal circumstances, the Court noted them in assessing the fairness of questioning of an unrepresented accused.
The Court accepted that, in some cases, limited questioning of an unrepresented accused to clarify an unclear position may be appropriate, but stressed that great care is required: an accused must understand the purpose and significance of questions, and once an accused has indicated denial of a breach, he should not be required to answer further questions on disputed matters unless he elects to give evidence in the course of a proof.
Applying those principles, the Court found that the Sheriff's approach on 4 March 2025 went beyond acceptable clarification. The questioning was described as intrusive, insistent, and interrogatory; the Sheriff proceeded to reject the Appellant's denial of contact with the complainant—an issue that could only properly be determined by hearing evidence. The Court considered these actions to amount to procedural impropriety and unfairness.
Because the statutory process for resolving disputed facts was not followed and the Appellant did not receive the protections appropriate to a proof, the Court concluded the findings of breach and the subsequent custodial sentence were unsafe.
Holding and Implications
Holding: The Court allowed the appeal and quashed the findings of breach and the 9‑month custodial sentence imposed for the breach.
Implications:
- The direct effect of the decision is that the findings of breach and the sentence are set aside. The Court noted that the Appellant had already served the 9‑month sentence (or half of it before unconditional release under section 18(4)), and therefore held that there should be no further proceedings concerning the alleged breaches recorded in the breach reports.
- The opinion emphasises the procedural requirement under section 18 that disputed breach allegations be resolved by proof, and it underscores the duty of a presiding sheriff to take particular care when questioning an unrepresented and potentially vulnerable accused. The Court did not purport to lay down new law beyond applying the statutory procedure and established principles of fairness; the decision is founded on the facts and the statutory requirement for a proof where breach is denied.
This summary is a faithful, anonymized account of the opinion as provided. No information has been added that was not present in the opinion.