Ross Pollock-Smith v. Procurator Fiscal, Stirling [2019] HCJAC 67

Description

Appeal from the sheriff court in terms of section 184ZB of the Criminal Procedure (Scotland) Act 1995:- On 19 September 2018, at Stirling Sheriff Court, the appellant appeared from custody in relation to a charge of shouting, swearing and uttering offensive remarks and threats of violence towards the police contrary of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. The appellant was on four bail orders and the offence was racially aggravated. The appellant was remanded in custody to reappear on 1 October 2018 when he pled guilty to the charge. Sentence was deferred on a number of occasions due to the appellant having a number of outstanding complaints including one relating to a domestic fire-raising involving LM and her mother for which he was sentenced to 10 months imprisonment. On 9 January 2019 sentenced was deferred further until 11 July 2019 when he was ordained to appear and for the court to obtain a supplementary Criminal Justice Social Work Report. The date of the deferred sentence coincided with the appellant’s date of release from his earlier prison sentence. When the complaint called on 11 July 2019 sentence was deferred to 30 October 2019 for the appellant to be of good behaviour. Whilst the section 38(1) charge did not relate to LM the author of the supplementary CJSWR expressed concerns regarding comments made by the appellant about LM and her mother and the sheriff had imposed an additional condition of bail that the appellant should not contact or communicate with LM or attempt to do so to ensure the compliance with the standard conditions of bail, namely, not to commit further offences. The appellant appealed against the imposition of the additional bail condition. The Sheriff Appeal Court, having regard to section 24(4)(b) of the Criminal Procedure (Scotland) Act 1995 which provides that the test for the imposition of a condition was that it was “necessary to secure – (i) that the standard conditions are observed”, refused the appeal. The appellant appealed against the decision of the SAC. It was submitted that the sheriff who sentenced the appellant in relation to the offence involving LM had not imposed a Non-Harassment Order or any period of post release supervision. It was submitted that one of the standard bail conditions was for the person subject to the conditions not to re-offend, as such, there was already a sanction in place in the event that the appellant re-offended. The bail order was only imposed to enable the court to impose the special condition so it could not be said that the imposition of the special bail condition was necessary to ensure compliance with the standard conditions. It was further submitted on behalf of the appellant that he was no longer involved in a relationship with LM and was not interested in re-establishing one, albeit LM had sought to contact the appellant for assistance, LM being someone who suffered from addiction and mental health problems. Here the court refused the appeal. The court considered that what the sheriff had attempted to do was to seek to ensure that once the appellant was released from custody he was to keep out of trouble and be aware of being subject to the special bail condition prior to his sentencing on 30 October 2019. The court was of the view that the special bail condition was appropriate and necessary in light of the concerning contents of the supplementary CJSWR and the sheriff was correct to exercise his discretion in the way he did to seek to ensure the appellant did not commit further offences involving LM.