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Cite as: [2005] ScotSC 10
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Fife Constabulary, Re An Order Under the Anti-Social Behaviour (Scotland) Act [2005] ScotSC 10 (03 February 2005)

Case Number:

B25/05

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT KIRKCALDY

NOTE BY SHERIFF WILLIAM HOLLIGAN

in

APPLICATION FOR CLOSURE ORDER

pursuant to Part 4 of the

Antisocial Behaviour etc (Scotland) Act 2004

in respect of premises at 25 LETHAM TERRACE, LEVEN

[1]      The applicant in this matter is Superintendent Alan McIlravie of Fife Constabulary ("the applicant"), who sought an order pursuant to Part 4 of the Antisocial Behaviour etc (Scotland) Act 2004 ("the 2004 Act"). At this stage I shall also refer to the Act of Sederunt (Summary Applications, Statutory Applications and Appeals, etc Rules) Amendment (Antisocial Behaviour etc (Scotland) Act 2004) 2004 ("the 2004 Rules"). The application relates to 25 Letham Terrace, Leven ("the premises").

[2]      This matter called before me on 21 January 2005. For reasons I shall come to, I gave my decision that day. I said I would issue written reasons therefor, which I now do.

[3]      Miss Campbell appeared on behalf of the applicant. Mr Jackson initially appeared on behalf of the tenant of the premises, Scott Wallace ("Mr Wallace"). After initial submissions in support of a motion, which I refused, Mr Jackson sought and was granted leave to withdraw. The matter then proceeded. I heard Miss Campbell in support of the application.

[4]      Before I deal with the facts, I will deal with the relevant parts of Part 4 of the 2004 Act and the 2004 Rules.

In summary, Section 26 empowers a senior police officer to authorise the service of what is termed a "closure notice" prohibiting access to the premises by any person other than a person who habitually resides in the premises or the owner of the premises. By virtue of Section 143(2) and Section 19(1) "senior police officer" is defined as being a police officer of, or above, the rank of superintendent. Such a notice may only be authorised where the conditions set out in Section 26(3) are satisfied. Section 27 sets out in detail how such a notice must be served.

I set out the relevant parts of Section 28 and Section 30 as these are of particular importance to this application:-

Section 28(2) - A senior police officer shall apply to the sheriff for a closure order in respect of the premises specified in the notice.

  1. Subject to subsection (4), an application under subsection (2) shall be made no later than the first court day after the day on which paragraph (a) of Section 27(2) is fulfilled in relation to the notice.

  2. The sheriff may, on cause shown, allow an application which is late to proceed.

  3. An application under subsection (2) shall -

    1. specify the premises in respect of which the closure order is sought;

    2. state the grounds on which the application is made; and

    3. be accompanied by such supporting evidence (whether in documentary form or otherwise) as will enable the sheriff to determine the application.

.............

Section 30(1) - On an application under Section 28, the sheriff may, if satisfied that the conditions mentioned in subsection (2) are met, make a closure order in respect of premises.

  1. Those conditions are:

    1. that a person has engaged in antisocial behaviour on the premises;

    2. that the use of the premises is associated with the occurrence of relevant harm; and

    3. that the making of the order is necessary to prevent the occurrence of such relevant harm for the period specified in the order.

  1. A sheriff shall, in determining whether to make a closure order in respect of premises, have regard to -

    1. the ability of any person who habitually resides in the premises to find alternative accommodation; and

    2. any vulnerability of any person such as is mentioned in paragraph (a) who has not been engaged in antisocial behaviour which has occurred in the premises;

  1. Subject to subsection (5), a sheriff shall determine an application under Section 28 no later than the second court day after the day on which the application is made.

  2. The sheriff may postpone determination of the application for a period of not more than fourteen days to enable a person mentioned in subsection (6) to show why a closure order should not be made.

  3. Those persons are -

    1. the occupier of the premises specified in the closure notice upon which the application proceeds;

    2. any person who has control of or responsibility for those premises;

    3. any other person with an interest in those premises;

  1. Where, under subsection (5), the sheriff postpones determination of an application, the sheriff may order that the closure notice upon which the application proceeds shall continue in effect until the determination of the application.

 

"Relevant harm" is defined in Section 40 as meaning:-

"(a) significant and persistent disorder; or

(b) significant, persistent and serious nuisance to members of the public."

 

"Antisocial behaviour" is defined in Section 143(1) as being:-

"(1) for the purposes of this Act .......... a person ("A") engages in antisocial behaviour if A -

    1. acts in a manner that causes or is likely to cause alarm or distress; or

    2. pursues a course of conduct that causes or is likely to cause alarm or distress

to at least one person who is not of the same household as A; and "antisocial behaviour" shall be construed accordingly."

 

[5]      Rules 3.27.6, 3.27.7 and Forms 25, 26 and 27 of the 2004 Rules set out the form of the application for a closure notice, certificate of execution and application for a closure order.

[6]      Section 29 provides that a closure order may be made in respect of all or any part of the premises set out in the notice for a period not exceeding three months. An order may make provision for access. Section 33 allows for revocation of an order but only on certain grounds. Section 36 provides inter alia that a decision concerning a closure order may be appealed to the Sheriff Principal and that the decision of the Sheriff Principal shall be final. Read short, Section 37 provides that breach of a closure notice or a closure order may amount to a criminal offence.

[7]      In the course of very helpful submissions and in exchanges with me, Miss Campbell identified a number of issues which arise in interpreting and implementing Part 4 of the 2004 Act.

[8]      There is a difference between a closure notice and a closure order. On the facts of this case, the distinction is of considerable importance. A closure notice does not prohibit the owner of the premises or a person who habitually resides in the premises from having access thereto. On the facts of this case, Mr Wallace qualifies as a person under Section 26(1)(a) and therefore the issue of the notice would not apply, directly at least, to him. A closure order does, however, affect him. That distinction is particularly important in construing Section 30(5) and (7). If the initial application is adjourned the closure notice may continue in effect if an order to that effect is made by the sheriff.

[9]      One of the most striking features of Part 4 is the timetable which is prescribed. The effect of Sections 28 and 30 is that, once the requirements of Section 27(2)(a) as to the service of the notice are satisfied (and it is worth noting the limited scope of Section 27(2)(a), as opposed to both paragraphs (a) and (b)), the applicant must make application to the sheriff no later than the first court day after Section 27(2)(a) is satisfied. Section 28(4) allows for an application to be lodged outwith that period on cause shown. Section 30(4) requires that the sheriff determine the application no later than the second court day after the application is made. I assume for present purposes that an application is "made" when it is lodged with the Sheriff Clerk. I take "determine" as meaning the making of a decision. That therefore imposes upon the applicant an obligation to act with considerable dispatch and the sheriff to issue a decision within a very short time thereafter. Section 30(5) allows the sheriff to postpone determination of the application for a period not more than fourteen days to enable the limited category of persons set out in Section 30(6) to show cause why a closure order should not be made. Paragraph 5 of Form 25, which prescribes the form of the closure notice, gives details as to when and where the application for the closure order will be made. At the point at which the notice is served, no application has been lodged. Form 27 prescribes the form of interlocutor to be issued when the application is lodged. It is only at that point that the court assigns a hearing. It follows that the closure notice must specify details of a hearing which a court has not fixed and, for aught seen, may not proceed. However, that seems an inevitable consequence of the timetable prescribed.

[10]      Part 4 does not specify that applications are summary applications (contrast Section 4(10)). It seems to me that the intention of the legislature is that Part 4 specifies its own code for the determination of such applications. However, that leaves the court with a potential difficulty in deciding how disputed applications should be determined. On the one hand, the legislature has enjoined that such applications should, initially, be determined within two days of the making of the application. On the other hand, there may be genuine issues to be tried which cannot be dealt with within such a timetable. I shall return to this issue.

[11]      It is at this point I return to the application before me. Mr Jackson appeared on behalf of Mr Wallace. Mr Jackson considered that he had a general mandate to represent Mr Wallace and, indeed, had done so earlier that day in relation to a continued hearing of an interim antisocial behaviour order. Mr Jackson had been made aware of the matter calling before me. Neither he nor, it was said, his client, had any knowledge of this matter calling. He therefore sought an adjournment of the hearing before me. Miss Campbell opposed the motion. She informed me that service of the notice had been made personally at 2.00 pm the previous day upon Mr Wallace. Police officers and housing officers were in attendance. The terms and consequences of the application were explained to Mr Wallace in detail. He was advised to attend the hearing and to seek advice from a solicitor. He was advised of the homeless service of the council and that he could avail himself of that if he wished. I was also informed that, during that meeting, he said that if an application were to be granted, he would hand in his keys and surrender the tenancy. I was also informed that, for technical reasons, the interim antisocial behaviour order, which called earlier in the day, had been dismissed. I was also told there were criminal proceedings involving Mr Wallace, which involved him in giving, as his bail domicile, his mother's address and not the address of the premises. Miss Campbell also referred me generally to the background to this case.

[12]      On the face of Section 30, it seemed to me that the legislature had gone to some length to prescribe a timetable which prima facie has the effect of displacing the court's power at common law to adjourn proceedings. The effect of Section 30(6) is not only to limit the power to adjourn, but also to provide that it is then up to the person to show why an order should not be made. That suggests to me an assumption that the grounds for making the order have already been satisfied. I decided that, on the facts of this case, I ought not to accede to Mr Jackson's motion. There was a long history to the issue of Mr Wallace's behaviour to which I was entitled to have regard and it seemed to me that Mr Wallace had had an opportunity to seek advice and chose not to do so. I therefore refused the motion. At that point, Mr Jackson very properly sought, and was granted, leave to withdraw.

[13]      Although it is strictly unnecessary for me to state a view on the matter of the timetable, as it was touched upon in the hearing before me and this is the first application brought pursuant to Part 4 of the 2004 Act, it may be helpful if I express a tentative view. There may be circumstances in which there are genuine issues to be tried as to the making of a closure order and resolving such issues will involve the determination of disputed matters of fact. It seems to me this may attract the provisions of Article 6 of the European Convention on Human Rights and may also involve Article 1 to the First Protocol. Should that arise, the timetable provisions may have to be read subject to the Convention. Whether that falls to be considered pursuant to Section 29 of the Scotland Act 1998 or Section 3 of the Human Rights Act 1998, or both, and what the consequences might be, is a matter upon which I express no view.

[14]      One of the issues raised before me by Miss Campbell was the material to be placed before the court for the making of an order and what form that material should take. Sections 28(5) and 30 are relevant to this issue. Section 28(5) provides that the application specify the premises, the grounds for the application and be accompanied by "such supporting evidence (whether in documentary form or otherwise) as will enable the sheriff to determine the application". Section 30(1) provides that the sheriff may, if satisfied that the conditions mentioned in Section 30(2) are met, make a closure order. Form 27 follows the provisions of Section 28(5). In my opinion, care must be taken to specify the premises. In this case, at one point, although there was no doubt as to the extent of what I would describe as the residential part of the premises there was some initial doubt as to the extent of the garden ground attaching to the lease of the premises and any rights in common enjoyed by other persons. There ought to be no doubt as the extent of the premises covered by the closure order. Section 40 does define "premises" but the definition does not seem to me to advance matters greatly. Given that the consequences of a breach of an order are penal, the premises must be clearly defined. Both relevant parties and police officers called on to enforce the order should be in no doubt as to what premises the order applies. In my opinion, the order ought to specify clearly what the premises are. I do not go as far as to say that the definition of the premises should be a full conveyancing description although if such a description is available it should be used. Indeed, it may be that no such description is available. Whereas I do not say that it is necessary to do so, there seems to me to be no reason in principle why description of "premises" could not include reference to a plan annexed to the application and identified as such. If a plan is included and an order sought in terms thereof, there will have to be sufficient copies to annexe to any interlocutor pronounced. Whatever route is followed, premises must be clearly and unambiguously defined. It may also be helpful if there is produced to the sheriff a photograph of the relevant premises.

[15]      Before a closure order can be made, the sheriff must be "satisfied" as to the conditions set out in Section 30(2). In my opinion, the "grounds" referred to in Section 28(5)(b) are linked to the conditions set out in Section 30(2). Unless the grounds satisfy the conditions set out in Section 30(2), no order can be made. Having said that, the grounds do not equal the conditions, by which I mean the grounds must set out material which enables the sheriff to hold that the conditions are satisfied. I do not think the legislature intended that the grounds should simply repeat the wording and definitions of the conditions. Section 28(5)(c) prescribes that there be "supporting" evidence. The use of that word suggests to me that the crucial matters are the "grounds". In my opinion, Section 28(5) envisages something akin to relevant averments which satisfy the conditions set out in Section 30(2).

[16]      One of the key words in Section 30(1) is "satisfied". The use of this word arises in other, similar, pieces of legislation: Section 8(5)(b)(ii) of the Protection from Harassment Act 1997; Section 19 of the Crime and Disorder Act 1998 (as amended); Section 1(2) of the Protection from Abuse (Scotland) Act 2001. Indeed, it appears in Section 4(1) of the 2004 Act. Sheriff Principal Bowen QC commented in Furber v Furber 1999 SLT (Sh Ct) 26 at 27F, that the meaning of "satisfied" will depend upon its statutory context. With that observation I respectfully agree. Miss Campbell observed that there was some uncertainty as to the meaning of "satisfied" in the context of this legislation and how the applicant ought to satisfy the sheriff of the relevant matters. In my opinion, the legislature has provided that it is the application which ought to form the basis upon which the court must be satisfied. Put another way, paragraph 5 of the application ought to have the necessary averments to fulfil the conditions set out in Section 30(2). Part 5 can be supplemented by documentary evidence but, in my opinion, care should be taken as to what material is placed before the sheriff. It is likely, as in this case, that the application to the sheriff will be the last in a long history of events. If reference is to be made to documents, it should be made clear precisely which documents are relied upon and what conclusions are to be drawn therefrom. One of the reasons I say this is that a number of files were lodged with the application which, I understand, set out the entire history of this matter. I fully understand that, in the absence of any guidance, the files were lodged out of an abundance of caution. However, in my opinion, it is up to the applicant to satisfy the sheriff that an order should be made. I envisage this being done by a carefully drawn application and, in particular, paragraph 5, along with reference, if so advised, to specific documents supplemented by ex parte statements made by or on behalf of the applicant. If, having regard to the provisions of Section 30(2) the conditions are met, the sheriff may then decide, in the exercise of his discretion whether to make a closure order. There is another reason why I favour this interpretation. Should an appeal be marked, the sheriff ought to be in a position to write a note as to the material put before him. The one reservation I do have is the one matter upon which I have already touched upon, namely what procedure should be followed in the event that the application is opposed. As this matter was not the subject of debate before me, I express no concluded view thereon.

[17]      Turning to the facts of this case, Miss Campbell referred me to the application and, in particular, paragraph 5 thereof. She supplemented its terms by the following submission. Mr Wallace is aged 18. He became a tenant of the premises in or about 20 January 2003. He has no dependants and is believed to live alone. The premises are within a council estate and comprise the upper flat of a block of four flats. Beneath him lives Mr M (I shall not refer to the neighbours by name), aged 98, a veteran of two world wars, who has lived in his house for 40 years. His health has suffered as a result of Mr Wallace's behaviour. Through the wall, on the same floor, lives a lady in her twenties. Diagonally across from the premises lives a lady in her forties who suffers from severe learning difficulties. Since Mr Wallace moved in his neighbours, both immediately and further afield, have suffered from his antisocial behaviour. In particular, he has many parties which go on until the early hours of the morning and, sometimes, until dawn. There is loud music. The windows of the premises are left open. Many people come and go at all hours in the night and day. There is a lot of shouting to people outside from the premises and shouting back. There is a lot of banging of doors and stomping on floorboards. Cars come and go, often accompanied by loud screeching of tyres. Between 1 January 2003 and 14 January 2005, 37 calls have been made to the police in relation to incidents at the premises. In or about summer 2003, the local councillor called a public meeting about this specific issue and no fewer than 60 persons attended to complain. Some of the persons who did attend were too frightened to pursue their complaint. Fife Council runs an out-of-hours service to assist members of the public affected by antisocial behaviour. It involves persons from Fife Council attending at the complainer's premises and sometimes witnessing for themselves, the behaviour to which the complainer is subjected. Between 31 October 2004 and 2 January 2005, there were 26 such calls. Proceedings for recovery of heritable property had been commenced on the grounds of antisocial behaviour but had been discontinued as Mr Wallace had absented himself from the premises from January to June 2004. Fresh proceedings seeking a compulsory move had commenced in November 2004. A summary application for the grant of an antisocial behaviour order began in December 2004. An interim order was granted on 14 January 2005 but recalled later for technical reasons. I was told that shortly after the interim order had been granted Mr Wallace allegedly behaved in such a way as to show complete disregard for its terms and, indeed, was arrested for breach of the order. He was granted bail on a special condition that his bail domicile was that of his mother's address. Throughout, Mr Wallace had been spoken to by both police and housing officers. He had been offered alternative accommodation, which he had refused. He had said at one point, that he had no intention of complying with orders of court although, as I have said, at a later point he did say that if an order were granted under Part 4 of the 2004 Act he would surrender the keys to the premises. The only point during which his neighbours had had respite from his behaviour was the period between January and June 2004, when he was absent from the premises. There was no-one else living in the premises. Mr Wallace had been informed that homeless accommodation would be available to him for a period of 28 days, after which he would be entitled to make an application for a further tenancy. On Miss Campbell's submission, the statutory conditions were satisfied and I ought to make an order for a period for three months.

[18]      Applying this material to Section 30(2), I do not think I need engage upon an analysis of the wording of Section 30(2)(a) and (b) as defined by Section 40 and Section 143(1). It seems to me that, on any view of these provisions, the conditions are satisfied. The remaining question is whether the making of an order is "necessary" to prevent the occurrence of relevant harm for the period specified in the order. Again, the use of the word "necessary" is a common feature of legislation, such as the Crime and Disorder Act 1998; Protection from Abuse (Scotland) Act 2001; and, perhaps more significantly, the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and, in particular, Section 4 thereof. The test of necessity also appears in Section 4(2)(c) of the 2004 Act. The use of the word "necessary" was the subject of considerable analysis by the Inner House in a number of cases under Section 4 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. I refer, in particular, to the cases 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. It was in the course of these cases that a number of observations were made as to the proper interpretation of the word "necessity". Given that the legislature has enacted further legislation using the same term, it may be that there is a presumption of Parliament intended that the language used should be given the same meaning as that judicially attributed to it (Barras v Aberdeen Steam Trawling and Fishing Co 1933 SC (HL) 21 at 50; Stair Memorial Encyclopaedia, Volume 12, para 1159; Bennion "Statutory Interpretation" 4th Edition at pages 152-3). Sheriff Principal Bowen QC has referred to the test of necessity in the case of Glasgow Housing Association v Sharkey (4th November 2004). I think all I need say is this. In deciding whether to make a closure order the court must be satisfied that it is necessary to prevent the occurrence of relevant harm. It is the last of the three conditions in Section 30(2). It is a high test in the sense set out in the Inner House cases to which I have referred. On the facts of this particular case, the test of necessity is well satisfied in that the antisocial behaviour is of significant duration, is of a significant burden to neighbours and many attempts have been made by a number of agencies to try and resolve the matter, all to no avail.

[19]      I accordingly granted the closure order. I granted it for three months having regard to the background. In my opinion it was necessary to prevent the occurrence of Mr Wallace's behaviour. I did have regard to alternative accommodation for Mr Wallace (Simpson v Edinburgh Corporation 1960 SC 318). There were no persons known to the applicant falling within Section 30(3)(b).

[20]      The interlocutor I pronounced reserved to Fife Council, the heritable proprietors and persons acting on their behalf, access for the purposes of repair and maintenance. As it appeared that part of the garden ground might be common to one or more of Mr Wallace's neighbours, I excluded such rights from the extent of the order. I also allowed access to Mr Wallace, on certain specific conditions, to allow him to uplift his personal possessions. I suggested it might be helpful in any future application for the applicant to provide a draft interlocutor, which it is proposed the Sheriff should grant. Such draft should deal, in particular, with any rights of access which require to be reserved. The statutory power to make an application is vested in a police officer. In this case, I was much assisted by Miss Campbell. Whereas it will, of course, be up to each senior police officer to decide, it does seem to me that the complexities of this legislation suggest that legal representation is desirable.

 

 

 

3rd February 2005

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