Scottish Sheriff Court Decisions

NOTE:-

This Note concerns an application by the pursuers for an interim anti-social behaviour order pursuant to the Crime and Disorder Act 1998 ("the 1998 Act"). Both parties were represented by counsel. Mr Healy appeared on behalf of the pursuers. Mr Jamieson appeared on behalf of the defender.

The matter was originally set down for the purposes, inter alia, of dealing with the defender's plea as to time bar. Mr Jamieson informed me that he was no longer insisting upon this plea. The summary application originally called on 23 July 2004. There was no order made for answers.

Mr Healy sought to move a minute of amendment the effect of which was to amend the crave. There was no objection. I accordingly allowed the minute of amendment.

I was informed by Mr Jamieson that an application for an interim anti-social behaviour order had been made in another process and that the refusal of the order was the subject of an appeal to the Sheriff Principal. The appeal is set down to be heard on 5 October 2004. As I have a discretion as to the hearing of the motion of an interim order, Mr Jamieson invited me not to deal with the matter until after the Sheriff Principal had issued his Note on what both parties agree are novel and difficult statutory provisions. Mr Jamieson did not submit that Mr Healy's motion was incompetent.

In reply, Mr Healy informed me that he did insist upon his motion.

It seemed to me that if the pursuers insist upon their motion then I ought to hear it.

I summarise Mr Healy's argument as follows. Mr Healy invited me to look at the material before me as an accumulation of conduct. Although the principal victims were Mr and Mrs Walsh there were other neighbours affected by the conduct of the defender. I should say at this point that the pursuers have an identical motion in a case against the defender's wife, Isobel O'Donnell. The averments in that case are identical to the averments in the present case. For the purposes of this Note I see no purpose in distinguishing between the two defenders. My conclusion, and its reasoning applies equally to both cases.

Mr Healy referred me to Section 19(2A) of the 1998 Act. In Mr Healy's submission, in approaching the question of the grant of an interim order there are three stages: (1) I should take the pursuers' averments pro veritate and decide whether the conduct is a course of anti-social behaviour; (2) I should then, in the exercise of judicial function, decide whether an order is necessary; (3) I should then reach a conclusion whether, in the exercise of discretion, an order should be granted. Mr Healy referred me to the decision of the House of Lords in the case of R (McCann) v Manchester Crown Court [2003] 1 AC 787.

In Mr Healy's submission that there may be a denial of the allegations in the pursuers' writ might have some impact on stages (2) and (3) of the tests he set out but that it should not be determinative. If interim orders were refused just because the allegations were denied there would never be circumstances in which they could be granted. Furthermore the terms of the orders sought do not make an impact on the liberties of the parties. Although there are separate actions against Mr and Mrs O'Donnell, the averments against the other are relevant to background to the particular defender under consideration.

Mr Healy then referred me to a number of specific Articles of Condescendence, namely 8, 11, 14, 18, 19, 26, 29, 32, 35 and 37. He accepted that there had been nothing more recent since 8 June 2004. He was not contending that the dog referred to was itself a dangerous breed but it was still capable of causing injury and alarm. In Mr Healy's submission the averments amounted to conduct likely to cause distress or alarm.

So far as necessity is concerned, the conduct complained of had already been the subject of action by Glasgow City Council, the police and the procurator fiscal, all without success. There was therefore a necessity for the grant of an order. The fixing of a proof might serve to inflame passions further, which made the need for an interim order all the much greater. Mr Healy highlighted the apparent acceptance by Mrs O'Donnell of unacceptable behaviour in paragraphs 10 and 16 of her affidavit. Threats of eviction had not abated the defender's conduct nor had execution of a good neighbour letter.

So far as discretion is concerned, there was no reason why the order should not be granted. The purpose of the order is to maintain the status quo. Indeed, for the defenders to succeed the pursuers would have to have engaged in a conspiracy to commit perjury. The sanction for the breach of an order involved the bringing of a criminal prosecution which would require an assessment of the relevant material both by the police and the procurator fiscal. Mr O'Donnell was in the same position as Mrs O'Donnell. He had been the subject of warnings and advice from both Glasgow City Council, the pursuers and the police. The restrictions being imposed upon him were minor. Any restriction he might face was outweighed by the need for an order.

In response, Mr Jamieson also referred to the case of McCann and the comments from members of the Judicial Committee as to the policy behind the legislation. In the present case there was a real factual dispute between the parties. The court ought to hesitate before granting an interim order. He did not accept that the orders sought by the pursuers were minor; they amounted to attempts by the pursuers to control the actions of the defenders. Mr Jamieson contrasted the factual position with that in the case of McCann (and the case considered along with it, that of Clingham). In this case the defenders were aged 63 and 54 respectively. If one contrasted the factual position here with those in such cases as had been reported they came nowhere near the level of seriousness in those cases.

Mr Jamieson then took me through, in detail, the factual position as contended by his clients. I intend no discourtesy to Mr Jamieson's thorough submission if I summarise it by saying that the defenders strongly dispute the factual allegations made against them and indeed contend that Mr and Mrs Walsh, the principal complainers in this matter, have themselves conducted a campaign of harassment against the defenders. Criticism, and indeed complaints, were levelled at the staff of the pursuers. I summarise the allegation as saying that the pursuers had behaved in a high handed way.

I do not think Mr Jamieson disputed Mr Healy's approach to the interpretation of Section 19(2A) although Mr Jamieson emphasised the discretionary nature of the order and suggested to me that it was at the point of exercising my discretion that I ought to take into account the fact that there was competing material before me.

In reply, Mr Healy accepted that it could not be said that the court was not entitled to have regard to competing material and that, in this case, I should attach little weight to the defender's position.

I should add that I referred both counsel to the case of Furber v Furber 1999 SLT (Sh Ct) 26. I did so because I wished to be addressed upon the use of the word "satisfied" where it appears in Section 19. Both counsel agreed that, at the stage of an interim order, the word "satisfied" does not involve any standard of proof.

In view of the novelty of the application and the care with which this matter had been both prepared and argued before me I made avizandum.

Anti-social behaviour orders were introduced by the 1998 Act, an Act of the United Kingdom Parliament. Section 19 was, in so far as it applies to Scotland, amended by Section 44 of the Criminal Justice (Scotland) Act 2003. I set out the necessary parts of Section 19, as amended:-

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The legislation has been the subject of judicial interpretation. I have already referred to the McCann case. Although this was a case relating to English law, Lord Hope does make reference to Section 19 at paragraphs 52 to 55 of his speech. In particular, Lord Hope stated that the broad aim of the legislation is the same in both jurisdictions and that Parliament has decided that proceedings for such an application should, in Scotland, be made by way of summary application. Lord Steyn at paragraph 16 and Lord Hope at paragraph 42 set out the policy issues which gave rise to the legislation. I refer to both these passages because it does seem to me by reference, in particular, to the speech of Lord Steyn, that the social problem identified by his Lordship is at some considerable remove from the facts averred by the pursuers in this case. The issue in the McCann case (and indeed the case of Clingham, heard along with it) was whether the proceedings for an anti-social behaviour order are civil or criminal and what standard of proof fell to be applied. Both cases concerned final, not interim, orders. Nonetheless, there are certain dicta of Lord Steyn and Lord Hope which I find helpful in resolving the interpretation of Section 19. In paragraph 37, Lord Steyn invited the Judicial Committee to hold that magistrates ought to adopt the criminal standard of proof in deciding evidential matters in final orders. His Lordship went on to say that the enquiry under Section 1(1)(b), the equivalent to Section 19(1)(b), involved the exercise of judgement or evaluation.

At paragraph 55, Lord Hope commented that the ground upon which applications for anti-social behaviour orders may be made in both jurisdictions are similar and the consequences of the making of an anti-social behaviour order are the same. The making of such an order has the character of a civil interim interdict but carrying with it criminal sanctions in the event of a breach. At paragraph 76, Lord Hope commented that restrictions are imposed upon defendants for preventative reasons, not as punishment. The test which has to be applied is confined to what is necessary for the purpose of protecting persons from further anti-social acts by the defendants. The court has not been required, nor indeed is it permitted, to consider what an appropriate sanction would be for the defendants' past conduct. Moreover, while the court may restrict the defendants' liberty where this is shown to be necessary to protect persons in the area from further anti-social acts by him, it may not deprive him of it nor may it impose a fine on him. At the end of the day, the Judicial Committee did indeed hold that the standard of proof to be applied should be that of the criminal standard.

The procedure in Scotland involves commencement by way of summary application and that involves the service of a writ upon the defender. If the defender does not appear to answer the writ then the court may make an order under Section 19(3). If the application is defended there is likely to be an order for answers and further procedure, culminating in a proof. I do observe that Section 1(4) of the 1998 Act requires that conditions for making the order are "proved" whereas Section 19(3) requires that the court be "satisfied". Whether, if at all, a Scottish court requires to make any enquiry at the stage of granting an order under Section 19(3), in circumstances where the defender does not appear, is a matter which does not arise in this case and I express no view thereon.

Section 44 of the Criminal Justice (Scotland) Act 2003 inserted sub-section (2A) into Section 19 and it is this provision which confers upon the court a power to make an interim order. There is also an Act of Sederunt (Act of Sederunt (Summary Applications, Statutory Applications and Appeal Etc Rules) Amendment (Anti-Social Behaviour Orders) 2003 - No 319/2003) setting out the procedure to be followed where an interim order is sought. In short, the pursuer must crave an interim anti-social behaviour order and then make application by way of a motion. The rules require that service be effected upon the defender before an interim order may be sought. This does no more than replicate what is said in Section 19(2A) itself.

In my opinion, the starting point of Section 19(2A) is that the court is given a discretion as to whether to grant an interim anti-social behaviour order or not. The discretion is not unfettered. It is constrained by Section 19(2A)(a) and (b).

One of the major difficulties in the grant of all interim orders is that, almost by definition, such applications proceed upon unproven facts. The facts may be hotly contested. Over the years, rules have evolved in dealing with interim interdicts. In the case of the former, the well-recognised tests are that in order to succeed, a pursuer must set out a prima facie case and satisfy the court that, on a balance of convenience, an interim order should be granted. In practice, such difficulties only usually arise when the defender has had notice of the application and disputes the grant of the order. In Section 19(2A) the only procedural safeguard for any defender is that the writ should be served upon him before any interim application can be applied for.

Here, the power to grant an interim order is statutory and does not rest on any common law power. As I have already said, it appears to me that the statute confers upon the sheriff a discretion as to whether to grant the order. However, there are two things of which the sheriff must first be "satisfied". I drew counsel's attention to the dicta of Sheriff Principal Bowen QC in the case of Furber v Furber. That case concerned the use of the word "satisfied" in the Protection from Harassment Act 1997. His Lordship commented that the meaning of "satisfied" will depend upon its statutory context (see p 27F). I note that the word "satisfied" appears both in Section 19(2A) and Section 19(3). It may be that "satisfied" does not necessarily have the same meaning in both sub-sections. I agree with counsel that "satisfied" in Section 19(2A) does not refer to any particular standard of proof. At the stage of an interim order the question of proof, in the context of evidence to be led, does not arise.

It seems to me that, before the discretion conferred in Section 19(2A) can be exercised, two conditions must first be fulfilled, ie those contained in paragraphs (a) and (b).

Mr Healy suggested to me that Section 19(2A)(a) requires that I must accept the pursuers' averments pro veritate. I put the matter differently. It seems to me that paragraph (a) requires the sheriff to be satisfied that, were the conduct complained of "established" (which I take to mean admitted or proved) such, in this case, "conduct" would amount to anti-social conduct. In other words, it is not that I must take the pursuers' averments as being true. Rather, it is a case of being satisfied that, assuming everything the pursuers say is true, it would amount to anti-social conduct. If the authority brings forward material which, even if true, could never amount to anti-social conduct then the discretion cannot be exercised at all. More importantly, in this context, paragraph (a) is not dealing with the question of what happens if there is factual material of a contrary nature.

The second condition as to the exercise of the discretion is that the interim order is not just "necessary" but necessary for a particular purpose, namely that set down in Section 19(1)(b).

I pause to observe that it seems to me that the two conditions I have set out above accord with the criteria called for in sub-section (3) which relate to the making of a final order. The statutory test for the granting of an interim order should be no less than the granting of a final order. The sanctions for disobedience are the same and the only practical difference concerns how the court deals with material at an interim stage.

In relation to the question of whether an order is "necessary" in the cases referred to by Lord Steyn and Lord Hope it is hard to see that there could be much room for argument that an order is necessary. In cases of rampaging youths it may be that the only way to give a community peace is to exclude the youths from certain areas or otherwise moderate their conduct but I daresay even that conclusion arises because there is no other way of resolving the issue. For example, the police clearly cannot be everywhere at all times and individual prosecutions may be difficult to prove from lack of evidence and ineffective to regulate future conduct. The test is "necessity" not whether something is preferable or even desirable. It seems to me that the test of necessity is a high one.

Although I hesitate to refer to authorities to which counsel did not refer me, I am struck by the similarities between the structure of Section 19 of the 1998 Act and Section 4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 particularly as it has been interpreted by the courts (see the case of Bell v Bell 1983 SLT 224; Smith v Smith 1983 SLT 275; Ward v Ward 1983 SLT 472 and McCafferty v McCafferty 1986 SLT 650). That said I have reached my view by reference to the 1998 Act.

I have read the material placed before me which takes the form of the averments and the two initial writs, the productions for each of the parties and the affidavits of the two defenders.

The material is very different from the facts in the two cases before the House of Lords and is also very different from the policy considerations set out by Lord Steyn. Although there is a reference to other persons, the real dispute lies between Mr and Mrs Walsh and their next door neighbours Mr and Mrs O'Donnell. The initial dispute seems to be over the parking of Mr O'Donnell's car. Mr O'Donnell said he has lived in his property for some 18 years without any previous difficulty. Mr and Mrs Walsh are, by contrast, relative newcomers.

The pursuers allege "anti-social conduct" which is defined in Section 19(1)(a)(ii) as a course of conduct that caused or was likely to cause alarm or distress. Whatever the initial source of friction may have been I do not think it much matters now. It is well-known that the most minor and trifling disputes between neighbours can escalate, sometimes leading to violence and disorder. The fact that this may have begun as a dispute between neighbours does not of itself mean that the resulting behaviour cannot fall within the statutory definition of anti-social behaviour. Each case must turn upon its own facts.

Accordingly, applying the proviso in Section 19(2A)(a), have the pursuers averred conduct which, if admitted or proved, would satisfy the definition of anti-social conduct in Section 19(1)(a)?

Read short, the pursuers aver persistent swearing and verbal abuse by the defenders or either of them; deliberate obstruction by them of the Walsh's driveway; a dog attacking certain individuals; disputes over parking; use of wheely bins designed to annoy the Walshes; leaving a dog to bark. I am not minded to include averments as to the parking of vehicles by third parties. There is no averment that the actions of the third parties were at the direction or subject to the control of the defenders. I am prepared to hold that at the interim stage such averments, if proved or admitted, would amount to anti-social conduct.

That takes me to the next question, is such an order necessary? In my view, I am entitled, at this stage, to include in my assessment of necessity the material put forward by the defenders. They paint a very different picture from that put forward by the pursuers. The defenders go further than a bare denial of the allegations made against them. I do not think I need rehearse all of the material put forward. I refer to a number of examples. Mr O'Donnell said he does no more than put his bins where he has done for the last 18 years; that the Walshes object to the disabled parking place for his wife; that the dog broke free on one occasion and was kicked by Mr Walsh; that an alleged incident involving a van concerned delivery by Council employees of material to Mr O'Donnell's house. The defenders also allege that they have been the victims of high handed treatment by the pursuers who have sided with the Walshes and ignored the O'Donnells. In short, at the very least, I have material before me which sets out a sharply divergent account of events. There have been no events referred to since June 2004. I am not attracted by the suggestion that there is no reason why the order should not be granted and that it does not involve a significant restriction on liberty of the defenders. Perhaps put another way, such an order will only restrict them from doing things they ought not to be doing. However, that is not the test that I am enjoined to apply. The test is that of necessity. On my evaluation of the material before me I cannot see that it is necessary that at this stage an order be granted.

As I have said, the issue is, at root, one for my discretion. On the basis of the material before me and for the same reasons as relate to the question of necessity, I am not of a mind to grant an interim order at this stage. Having regard to all of the circumstances this is not, at this stage, a case in which an interim order ought to be made.

I want to comment on the procedure so far.

The pursuers' averments contain within them numerous references to "witness statements". Mr Healy tried, valiantly, to defend their use on the basis that it showed the diligence of the pursuers in collecting information. These "witness statements" are incorporated into the pleadings. Mr Healy was not so ungallant as to abjure the pleadings as not his own but I am sure they are not. I am not being pedantic when I comment on their use in this way. A witness statement sounds to me like a precognition. Precognitions do not appear in pleadings. Nor should the court, or for that matter the defender, have to trawl through material in inventories of productions to see if the pursuers have averred a relevant case. The rules say the procedure should proceed by way of summary application. That means the relevant assertions should appear in the initial writ.

The defenders have lodged affidavits in response to the initial writ. No order had been made for answers at earlier callings of the case. The relevant rules of court are silent as to the use of affidavits. I do not criticise the defenders' advisors for using them on this occasion but it seems to me the better course of action is for answers to be lodged. In applications under the Prevention of Abuse Act 2001 and the Prevention of Harassment Act 1997 affidavits are used as a matter of course. In my experience in dealing with such cases at the interim stage, the affidavits never add anything to the writ and on some occasions the writ and affidavits are barely distinguishable. Their use merely adds to the volume of material to be read, adds cost to the proceedings (often at the expense of public funds) and does not add to the knowledge of the circumstances.

In short, in my opinion, the parties should adhere to the rules and rely upon pleadings and productions, where such productions are truly documents independent of the pleadings.

As discussed with counsel I shall fix a further hearing on this matter to deal with expenses and to determine further procedure. Given the nature of the competing allegations contained in this action, in my view, steps should be taken to bring the case to an early proof.