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Cite as: [2004] ScotSC 71

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B191/04

JUDGMENT OF SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the cause

GLASGOW HOUSING ASSOCIATION LIMITED

PURSUERS

against

DAVID SHARKEY

DEFENDER

Act: Heaney, Advocate, instructed by Solicitor to Glasgow Housing Association.

Alt: Jamieson, Advocate, instructed by Livingston Brown.

GLASGOW, 4 November 2004.

The Sheriff Principal having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor complained of dated 4 March 2004; finds the no expenses due to or by either party in respect of the appeal; certifies the cause as suitable for the employment of junior counsel for the purposes of the appeal; remits to the sheriff to proceed as accords.

NOTE:
[1] This is a summary application in which the pursuers seek an anti-social behaviour order in respect of the defender under the provisions of Section 19 of the Crime and Disorder Act 1998 as amended by the Criminal Justice (Scotland) Act 2003. The pursuers are a "relevant authority" for the purposes of that section which provides as follows:

"19(1) A relevant authority may make an application for an order under this section if it appears to the authority that the following conditions are fulfilled with respect to any person of or over the age of 16, namely -

(a) that the person has -

(i) acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause alarm or distress or

(ii) pursued a course of anti-social conduct, that is to say, pursued a course of conduct that caused or was likely to cause alarm or distress,

to one or more persons not of the same household as himself (and in this section 'anti-social acts' and 'anti-social conduct' shall be construed accordingly) and

(b) that such an order is necessary to protect relevant persons from further anti-social acts or conduct by him.

(2) An application under subsection (1) above shall be made by summary application to the sheriff within whose sheriffdom the alarm or distress was alleged to have been caused or to have likely to be caused;

(2A) On an application made under subsection (1) above, being an application of which the person in respect of whom it is made ha received intimation, the sheriff may, pending its determination, make such interim order as the sheriff considers appropriate provided that he is satisfied -

(a) that were the actings or conduct complained of in the application established, the condition mentioned in paragraph (a) of that subsection would be fulfilled; and

(b) that such an interim order is necessary for the purpose mentioned in paragraph (b) of that subsection".

[2] A motion for an interim order under the provisions of Section 19(2)(a) was made on 13 February 2004. That motion was continued until 4 March and answers appointed to be lodged within 10 days. At the same time 10 May 2004 was assigned for a full hearing. Answers were lodged; to a significant extent what was said in these answers amounted to a straight denial of the allegations contained in the summary application, although there were admissions of activity by the defender on 15 March 2003 which gave rise to a conviction for vandalism, and admissions that the defender had received a series of warnings from the pursuers as to his conduct.

[3] These answers were before Sheriff McFarlane when the motion for an interim order was renewed on 4 March. Noting that in terms of these answers the defender refuted many of the detailed averments by the pursuers, and that a full hearing was set down for 10 May, the sheriff declined to accede to the pursuers' motion. The sheriff did not refuse it, but continued consideration of it until the date of the full hearing. That interlocutor is the subject of this appeal.

[4] The argument presented to the sheriff on 4 March appears to have been a relatively brief one. According to the sheriff's Note he pointed out to the agent for the pursuers that to grant the interim order sought at that stage would amount to the acceptance pro veritate of the pursuers' averments in the summary application. The sheriff indicated that he was not prepared to take that step in the light of the detailed answers. He was met with the response that he was obliged to take the pursuers' averments pro veritate by virtue of the provisions of sub-section (2A) above quoted. The sheriff makes no comment on this observation and merely records that in the exercise of his discretion and standing the proximity of the date fixed for the full hearing he was not prepared to grant the pursuers' motion.

[5] In the written grounds of appeal and in submissions no attempt was made to support an argument that Section 19(2A)(a) had the effect of requiring the sheriff to accept the pursuers' averments pro veritate for the purpose of considering whether an interim order was appropriate. By the stage of the appeal hearing the provisions of Section 19 of the 1998 Act had been considered in greater detail by Sheriff Holligan who issued a judgment dated 4 August 2004 in the case of Glasgow Housing Association Ltd v John O'Donnell. In that case it was submitted to Sheriff Holligan that Section 19(2A)(a) required him to accept the pursuers' averments pro veritate for the purposes of considering whether to make an interim order. Sheriff Holligan did not accept that submission. He said this:

"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".

In my judgment that interpretation of Section 19(2A)(a) cannot be open to serious question and the pursuers' counsel in the present appeal conceded the soundness of Sheriff Holligan's approach to that extent.

[6] Counsel for the pursuers further accepted that the use of the word "may" in Section 19(2A) gave the sheriff hearing the application an overriding discretion, and agreed, as noted by Sheriff Holligan, that before the discretion could be exercised the conditions set out in both paragraphs (a) and (b) had to be fulfilled. After being satisfied that the conduct alleged was capable of constituting "anti-social conduct in law", the sheriff had then to consider whether the making of an interim order was necessary for the protection of relevant persons. This, he argued, Sheriff McFarlane had failed to do on 4 March. Whilst he accepted that Sheriff Holligan had addressed the issue in the case of O'Donnell, he maintained that he had fallen into error at the second stage of his consideration because he had concluded that the test of "necessity" in Section 19(2A)(b) was a high one. "Necessity" had been described by Sheriff Holligan as not simply meaning that something was preferable or even desirable. Counsel maintained that the correct test should be that an order will only be unnecessary when further anti-social conduct is not anticipated. He gave as an example, a situation where the defender had moved away from his premises where the conduct complained of was said to have been carried out, or where a dog that had been the cause of the problem had been destroyed.

[7] The equivalent provisions applicable in England, namely Section 1 of the 1998 Act were considered in detail by the House of Lords in the case of R (McCann & Ors) v Crown Court at Manchester & Or, 2003 1 AC 787. Lord Steyn had observed (at p 800F) that:

"The inquiry under Section 1(1)(b), namely that...an order is necessary to protect persons from further anti-social acts...does not involve a standard of proof: it is an exercise of judgement or evaluation".

On that approach counsel in the present case submitted that what was required was consideration to whether an interim order would stop the conduct being repeated. It was quite wrong to give any weight to the fact that there was a factual dispute. In permitting interim orders Parliament should be taken to have known that such an order would be made on less material than would justify a final order. In the context in which it appeared the requirement for "necessity" for an interim order simply prevented one being granted when it was not necessary.

[8] In his Note Sheriff Holligan drew attention to similarities between the structure of Section 19 of the 1998 Act and Section 4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Counsel accepted that these similarities existed but pointed out that an Exclusion Order, as provided for in Section 4 of the 1981 Act was in the nature of a remedy of "last resort" having regard to the possible use of a matrimonial interdict (Section 14) to which a power of arrest could be granted (Section 15). You would expect a high test, he contended, for a remedy of last resort. The present remedy was not in the same category. A Housing Association, as a last resort had power to seek an order for possession under Section 14 of the Housing (Scotland) Act 2001. Counsel sought to reinforce this submission by reference to certain passages in the Opinions given by the Second Division in McCafferty v McCafferty, 1986 SLT 650 (for example, Lord Robertson at p 654L and Lord Dunpark at p656D).

[9] As a matter of general approach counsel stressed that the proceedings were by way of a civil remedy. There was no reason to presume that Parliament intended to make interim orders particularly difficult to obtain in such a process. The court should not be unduly restrictive in its interpretation of legislation which provided a such a remedy.

[10] Reverting to the approach of Sheriff McFarlane counsel maintained that he had not directed himself to the correct test. There was no doubt that if the averments in the writ were made out the case for a final order would have succeeded. Taking into account that it was still 13 weeks before the proof the sheriff ought to have considered the necessity of making an interim order for the protection of relevant persons. Looking for example, to the terms of the defender's affidavit which was available to the court there were indications of an acceptance of irrational conduct related to alcoholic intake, to a tendency to be verbally abusive, and a failure to co-operate with the Housing Authority. In all these circumstances an interim order could readily be seen to be "necessary".

[11] Counsel for the defender maintained that one could not criticise the approach of either of the sheriffs. It was speculation to suggest that Sheriff McFarlane had applied the "incorrect tests"; in view of the manner in which the matter had been approached he had not been asked to decide whether the making of an interim order was necessary. Having regard to the fact that detailed answers to the pursuers' averments had been lodged and to the imminence of the proof it could not possibly be said that, in the exercise of his discretion, the decision not to make an interim order was incorrect. The court would only be justified in interfering if it was considered that Sheriff McFarlane was "completely wrong": see the remarks of Lord President Dunedin in New Mining and Exploring Syndicate v Chalmers & Hunter 1909 2 SLT 236.

[12] Insofar as the judgment of Sheriff Holligan was concerned the approach suggested, namely that an order would only be unnecessary where further anti-social conduct was not anticipated, would leave little room for the exercise of judicial discretion. Sheriff Holligan's observations about the circumstances in which an interim order would be "necessary" had to be read against the background of the facts in the O'Donnell case, which was essentially a dispute between neighbours, contrasted with the facts in R (McCann & Ors), a case involving rampaging youths and serious public disorder. It was obvious that there was a higher degree of necessity in the latter type of case than there was in a neighbourhood dispute. Sheriff Holligan had properly considered the test of necessity as related to the facts and had arrived at the correct decision in O'Donnell. This was clearly a situation in which each case turned on its own facts, a matter which was observed in relation to the Exclusion Order provisions in Bell v Bell, 1983 SLT 224 at 227.

Decision
[13] The substance of Sheriff Holligan's decision - which was to refuse the motion for an interim anti-social behaviour order - is not the subject of this appeal. As counsel for the present defender contended, however, there seems little doubt that the view that the necessity for an order in that case was not established is not one which is open to challenge. The only question in relation to Sheriff Holligan's decision is accordingly whether the observation that the "test of necessity is a high one" should be given approval. If that observation was intended as a general guide to the approach to interpretation of Section 19(2A)(b) in my judgement it does go too far. The examination of what is "necessary" in any given set of circumstances is plainly a matter of fact to be decided in each individual case. Lord Steyn's remarks in R (McCann & Ors) are apt. The inquiry does not involve a standard of proof or achievement of a particular level of "necessity"; it is simply an exercise of judgment or evaluation. The circumstances which require such evaluation will include the nature of the allegations made in support of the application and if these disclose a situation of series public disorder the "necessity" for the granting of an order will plainly be more compelling than the type of neighbourhood dispute which Sheriff Holligan was concerned with in O'Donnell. In considering whether an order is necessary, the sheriff will no doubt also have to take into account such factors as the likely period of delay before a proof, and the position of the defender in relation to the allegations being made against him. It does not seem to me to be necessary to give any further guidance beyond that.

[14] So far as the decision of Sheriff McFarlane under appeal is concerned counsel for the pursuers quite properly did not invite me to consider the motion for an interim order afresh upon the view that this was a matter to be considered in the light of prevailing circumstances. I make this observation at the outset because it does appear to me that, for reasons which are perhaps understandable in the light of the manner in which the application was presented to him, it cannot in my judgement to be said that Sheriff McFarlane exercised his discretion upon the matter to which he was directed in terms of the statute. On a broad view it may well have been a reasonable decision not to pronounce an interim order standing the fact that the pursuers' averments were denied and that the proof was 13 weeks away. There is, however, no doubt that what was required was an examination of the "necessity" for making an anti-social behaviour order, and consideration ought to have been given to that particular question.

[15] In these circumstances, in the normal course, this might well have been a situation in which, being of the view that the sheriff had exercised his discretion on an incorrect basis, I would have proceeded to consider matters myself. It is not, however, appropriate for me to do so and in these circumstances I shall simply refuse the appeal and remit the matter to the sheriff to proceed as accords. As this decision reflects a degree of divided success, I shall find no expenses due to or by either party.

[16] I have only to add, for the avoidance of doubt, that by virtue of the provisions of Section 21(9)(a) of the 1998 Act as amended an appeal granting or refusing an interim anti-social behaviour order is an appealable interlocutor. The interlocutor pronounced by Sheriff McFarlane did not fall into either category and a motion for leave to appeal was properly made and granted.