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Cite as: [2005] ScotSC 13

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Sinclair v. Sinclair & Ors [2005] ScotSC 13 (18 February 2005)

SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT DINGWALL

A192/04

		JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC
		in the cause
		KENNETH SINCLAIR
		Pursuer and Respondent
		against
		JOHN SINCLAIR
		First Defender and Appellant
		JOHN WILLIAM SINCLAIR
		Second Defender and Appellant
		and
		MORRIS SINCLAIR
		Third Defender and Appellant

Act: Mrs Karen Cowan, solicitor, Macleod & MacCallum, Inverness

Alt: (1) Mr Stuart Nicoll, advocate, instructed by James Stewart & Co, Inverness

(2) Mr Martin Smith, solicitor, South Forrest, Inverness

(3) Mr R M McCheyne, solicitor, Munro & Noble, Inverness

Dingwall: 18^th February 2005

The sheriff principal, having resumed consideration of the cause, refuses the appeals and adheres to the interlocutor of the sheriff dated 27September 2004 under deletion of the words: "On the motion of the first defender - of consent of the pursuer and not opposed by the second and third defenders - sists the cause for negotiations and assigns 16December 2004 at 10.00 am as a diet for a review of same"; directs that the expenses of the appeal should be expenses in the cause; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

[1] In this case the pursuer and the second and third defenders are brothers and the first defender is their father. In terms of crave 1 the pursuer asks the court to interdict the defenders from molesting him by threatening him, from putting him in a state of fear and alarm or distress by using or threatening violence towards him and from approaching him at Crofts 9 Lochussie, 10, 11 & 12 Lochussie, 13 & 14 Lochussie, 15 & 16 Lochussie or elsewhere within the sheriffdom, and to grant interim interdict. In terms of crave 2 he asks the court to attach a power of arrest to the interdict and interim interdict sought in terms of crave 1 in terms of section 1 of the Protection from Abuse (Scotland) Act 2001 ("the Act").

[2] Section 1(1) of the Act provides that a person who is applying for, or who has obtained, an interdict for the purpose of protection against abuse may apply to the court for a power of arrest to be attached to the interdict under the Act. Section 1(2) provides, inter alia, that the court must, on such application, attach a power of arrest to the interdict if satisfied that ........ (c) attaching the power of arrest is necessary to protect the applicant from a risk of abuse in breach of the interdict. Section 1(3) provides that the court, on attaching a power of arrest, must specify a date of expiry for the power, being a date not later than three years after the date when the power is attached.

[3] In terms of section 7 of the Act, unless the context otherwise requires, "abuse" includes violence, harassment, threatening conduct, and any other conduct giving rise, or likely to give rise, to physical or mental injury, fear, alarm or distress. "Conduct" includes (a) speech; and (b) presence in a specified place or area.

[4] The effect of attaching a power of arrest is spelled out in section 4 of the Act. Section 4(1) provides that, where a power of arrest attached to an interdict has effect, a constable may arrest the interdicted person without warrant if the constable - (a) has reasonable cause for suspecting that person of being in breach of the interdict; and (b) considers that there would, if that person were not arrested, be a risk of abuse or further abuse by that person in breach of the interdict. Section 4(2) provides that a person who is arrested under section 4(1) must be informed immediately of the reason for the arrest and must thereafter be taken to a police station as quickly as is reasonably practicable and detained until - (a) accused on petition or charged on complaint with an offence in respect of the facts and circumstances giving rise to the arrest; or (b) brought before a court under section 5. Section 5(1) provides that, if the procurator fiscal decides that no criminal proceedings are to be taken in respect of the facts and circumstances which gave rise to the arrest, the detained person must wherever practicable be brought before the sheriff sitting as a court of summary criminal jurisdiction for the district in which the person was arrested not later than in the course of the first day after the arrest, such day not being a Saturday, a Sunday or a court holiday for that court. Section 5(3) provides in short that, when the detained person is brought before the sheriff, the procurator fiscal must present to the court a petition giving certain specified information about the facts and circumstances of the case. Section 5(4) provides that, if it appears to the sheriff, after affording the detained person the opportunity to make representations, that - (a) the information presented to the court discloses a prima facie breach of the interdict by that person; and (b) there would, if further detention were not ordered, be a substantial risk of abuse or further abuse by that person in breach of the interdict, the sheriff may order that person to be detained for a further period not exceeding two days. Section 5(5) provides that, if the sheriff does not order further detention, the detained person must, unless in custody in respect of any other matter, be released from custody.

[5] In article 2 of the condescendence the pursuer avers that he is the owner/occupier of Croft 9 Lochussie. He says that his father, the first defender, is the owner of Crofts 10, 11 & 12 Lochussie, 13 & 14 Lochussie and 15 & Pt 16 Lochussie and that he (the pursuer) is the tenant of these crofts. In article 3 the pursuer avers that his tenancy of these crofts has been the subject of a long running dispute between the parties. He says that on 23 September 1998 the first defender applied to the Crofters Commission to re-let the crofts to him. This re-let was approved by the Crofters Commission on 23 November 1998 and intimated to him and the first defender on 27 November 1998. However, according to the pursuer, the first defender failed to give up his occupation of the crofts in favour of the pursuer and was obstructive towards him in his working of the crofts. It is said that the first defender, along with the second and third defenders, placed goods and obstacles on the croft land and in sheds and buildings forming part of the croft (sic), blocking the pursuer's access to and interfering with his working of the crofts. In January 2001 the pursuer raised an action in the Scottish Land Court to determine that he was the tenant of the crofts, and by order of the Land Court dated 29 November 2001 he was indeed found to be the tenant of these crofts.

[6] In article 4 the pursuer avers that following on the order of the Land Court the defenders continued to obstruct him in his working of the crofts. He gives various details of this obstruction and then avers that in February 2002 he raised an action against the first defender in this court in which, inter alia, he sought to have the first defender interdicted from interfering with his right to possess the whole of the croft land as tenant without interruption or disturbance by entering thereon and parking or depositing any caravan or any other vehicle and any other moveable items, goods and gear. The pursuer avers that an order of interim interdict was granted at Inverness (sic) Sheriff Court on 1 February 2002.

[7] In article 5 the pursuer avers that despite the interim interdict, the defenders failed to remove said items from the croft land and continued to harass the pursuer in breach of the interim interdict. It is said that they were verbally abusive and threatening towards the pursuer on numerous occasions. An action for breach of interdict was then raised at this court.

[8] In article 6 the pursuer avers, in short, that the first defender indicated an intention to appeal against the order of the Land Court which had been made on 29 November 2001. The pursuer avers: "After discussion between the parties' agents, it was agreed that the breach of interdict action should be dismissed and the interdict action sisted pending the outcome of the first named defender's said appeal. Said appeal was refused on 18 November 2002".

[9] In article 7 the pursuer avers that the defenders have, since April 2002, continued to intimidate him "which has included physical and verbal abuse and threats and the continued obstruction of the pursuer in his working of his crofts". It is said that the local police have been contacted on numerous occasions and are aware of the situation but to date no charges have been brought.

[10] The pursuer goes on in article 7, and also in articles 8, 9, 10 and 11, to give details of a variety of incidents between November 2003 and August 2004 involving himself and the defenders, or one or other of them. The averments about these speak for themselves and it is unnecessary to rehearse them here.

[11] Finally in article 12 the pursuer avers: "The pursuer believes that said abuse will continue unless he has a court order of interdict and interim interdict to prevent said abuse. He requires the protection of an interdict and interim interdict under the Protection from Abuse (Scotland) Act 2001 and requires a power of arrest to be attached to said interdict".

[12] On 17 September 2004 the sheriff granted an initial warrant to cite the defenders and appointed parties to be heard on 23 September 2004. In the meantime he granted interim interdict in terms of crave 1. On 23 September 2004, on the pursuer's motion and of consent, the sheriff continued the hearing until 27 September 2004 and meantime continued the interim interdict previously granted in terms of crave 1.

[13] On 27 September 2004 the sheriff pronounced an interlocutor, the material part of which reads:

The Sheriff, Having Heard Parties Procurators Interdicts the Defenders, until the further orders of Court, from molesting the Pursuer, by threatening him, from putting him in a state of fear and alarm or distress by using or threatening violence towards him and Attaches a Power of Arrest thereto for a period of 12 months from this date.

[14] It is this interlocutor which is the subject of the present appeals. But it is clear from the notes of appeal which were lodged on behalf of each of the defenders that they challenged only that part of the interlocutor in terms of which the sheriff had attached a power of arrest to the interdict which he had granted. It was said that the sheriff had misdirected himself in law in that he had indicated that, if persuaded that the interim interdict should be continued, he had no discretion but to attach a power of arrest to the interim interdict in terms of the Act. It was said further that the sheriff had erred in law on this point since the effect of section 1 was to confer a discretion upon him in that he had to be satisfied that the attaching of a power of arrest was necessary to protect the pursuer from a risk of abuse in breach of the interdict.

[15] In response to the appeals the sheriff wrote a careful note explaining why he had pronounced his interlocutor dated 27 September 2004. For present purposes it is necessary to notice only what he had to say about the attachment of a power of arrest to the interdict which he had granted. After quoting the relevant part of section 1 of the Act he continued:

Although I have not kept a note of what I said on 27 September 2004, my recollection is as indicated in the three notes of appeal. My view at the time was that I could not envisage any set of circumstances amounting to a breach of this particular interdict which would not present a risk of abuse to the pursuer. I also failed to see how an arrest in exercise of the power of arrest could do other than protect the pursuer from the risk of abuse in breach of the interdict. In addition I was mindful of the mandatory nature of the direction to the court contained in section 1(2). In those circumstances I indicated that I thought that I had no discretion but to attach the power of arrest sought.

With the benefit of re-reading section 1, I should not have said that; a situation might arise in which the pursuer was faced with a risk of abuse in breach of the interim interdict but power of arrest was unnecessary to protect him from such abuse.

However, given the nature of the allegations made by the pursuer, in my view a power of arrest is on any view justified in this case. In addition to affording the protection envisaged by section 1(2)(c), it would serve to underline to the defenders the importance of behaving appropriately and responsibly whenever they came across the pursuer and that abuse in breach of the interim interdict was unjustifiable. Even with the power of arrest in force, it could only lead to an actual arrest if a constable, in addition to having reasonable cause for suspecting a person of being in breach of interdict, considered that there would, if the defender in question were not arrested, be a risk of abuse or further abuse by that person in breach of the interdict (Section 4(1)(b) of the 2001 Act). Accordingly, the attachment of a power of arrest does not endow the pursuer with the untrammelled right to insist on the arrest of any of the defenders on a bald assertion of breach of interdict.

[16] At this point it should be recorded that at the hearing on 27 September 2004, in addition to hearing submissions from the parties' solicitors, the sheriff had before him not only the initial writ but also the third defender's defences (no. 8 of process) and affidavits from the pursuer, two of his neighbours, Mr and Mrs Calder, the first defender and his wife, Mrs Mary Sinclair (who is thus the mother of the pursuer and the second and third defenders) and the second defender. These are nos. 9 to 14 of process respectively. Finally there were productions lodged by the first and third defenders (nos. 6/1 and 6/2 of process). These incorporate copies of three letters dated 30March and 15 and 23 August 2004 from a Police Inspector at Dingwall. All these documents speak for themselves and it is unnecessary to repeat them at length here.

[17] Opening the appeals, counsel for the first defender submitted that, the sheriff having erred in law in reaching his decision to attach a power of arrest to the interdict which he had granted, the issue whether or not a power of arrest should be attached was at large on appeal. Counsel submitted that, in light of the material before the court, such a power of arrest was not justified upon an application of the correct test in terms of section 1 of the Act with the result that that part of the interlocutor of the sheriff in terms of which he had granted the power of arrest should be recalled. Counsel drew attention in particular to the fact that there had been no suggestion of any continuing wrongdoing on the part of the defenders following the grant of the original interdict on 17 September 2004. Moreover, there was evidence of a willingness on the part of the defenders to engage in mediation as proposed by the police in terms of the correspondence which had been produced. Furthermore there was, said counsel, an absence of any material to justify the view that there would be a risk of breach of the interdict in the form of conduct that might give rise to a risk of abuse in breach of the interdict. In these circumstances the court, exercising its discretion reasonably, could not be satisfied that it was necessary to grant a power of arrest to protect the pursuer from a risk of abuse in breach of the interdict.

[18] The solicitor for the second defender endorsed the submissions of counsel for the first defender. He pointed out that, in considering whether or not a power of arrest was necessary, the position of each of the three defenders should be considered separately. He proceeded to examine the contents of the affidavits which had been produced and in short submitted that the material available to the court fell far short of demonstrating the necessity of a power of arrest in this case.

[19 The third defender's solicitor submitted that, if the sheriff had erred in law, then the cause should be remitted to him to consider of new whether or not a power of arrest should be attached. Failing this, then it was accepted that the question should be treated as being at large on appeal. In this event I should refuse to attach a power of arrest. Reference was made to Thomson v Thomson 2002 SLT (Sh.Ct.) 97 and an article by Sam Middlemiss entitled "Substantial Relief for Victims of Abuse" which appears in 2001 SLT (News) 6. Reference was also made to some explanatory notes on the Act which are recorded as having "been prepared by the Non-Executive Bills Unit of the Scottish Parliament on behalf of the convener of the Justice 1 Committee".

[20] In response, the pursuer's solicitor accepted that the matter was at large on appeal. She too examined the affidavits which had been produced and submitted in short that there was ample material before the court to support the conclusion that there was a risk of abuse on the part of the defenders in breach of the interdict and that it was necessary to attach a power of arrest to protect the pursuer from this risk of abuse. The appeals should therefore be refused.

[21] In my opinion the submissions for the pursuer are to be preferred. The sheriff has quite properly acknowledged in his note that he misdirected himself in law in deciding to attach a power of arrest in this case. In this situation I see no reason to depart from the normal practice of treating the matter as at large on appeal. The question which I have to ask myself is whether, looking at each of the three defenders in turn, I am satisfied that attaching a power of arrest is necessary to protect the pursuer from a risk of abuse in breach of the interdict pronounced by the sheriff. If I am so satisfied, then I must attach the power of arrest. And, since I have to consider the position in relation to each of the defenders separately, it is open to me, for example, to attach a power of arrest in relation to two of them and not the third.

[22] This question divides itself into two separate questions, namely (1) whether there is a risk of abuse in breach of the interdict, and (2) if so, whether attaching a power of arrest is necessary to protect the pursuer from this risk of abuse. It follows therefore that, if the risk of abuse is not demonstrated, there can be no necessity to attach a power of arrest to the interdict.

[23] In this case all three defenders have been interdicted "from molesting the pursuer, by threatening him, from putting him in a state of fear and alarm or distress by using or threatening violence towards him". As indicated, the first question is whether there is a risk of abuse (as defined in section 7 of the Act) by any of the defenders in breach of this interdict. Here it is important not to lose sight of the fact that this is not a case in which the dispute between the parties has blown up in the last few months. On the contrary, it has evidently been simmering (to put it no higher) since at least November 1998. So there has been plenty of time for the parties' mutual antipathies to fester and develop. For better or for worse they also live in close proximity to one another so that there are frequent opportunities for them to meet. There has evidently been quite a number of incidents between them as narrated in the pursuer's averments, the third defender's defences and the various affidavits which have been produced. I do not think that I need to rehearse all the details of these here. Not surprisingly the accounts given by the parties of these incidents do not always coincide, and it is impossible for the court to determine at this stage in the proceedings where the truth lies. I recognise too that there have been no incidents since the interim interdict was originally pronounced by the sheriff on 17 September 2004 and that, according to the defenders, they at least were willing to attend for the process of mediation proposed by the police. Nonetheless, it seems to me in all the circumstances of this case to be plain that there is indeed a risk of abuse by each and every one of the defenders in breach of the interdict pronounced against them by the sheriff. I do not of course say that I think that there will be such abuse. All that has to be demonstrated is that there is a risk of such abuse, and of this I am quite satisfied.

[24] It is perhaps more difficult to say whether attaching a power of arrest is necessary to protect the pursuer from this risk of abuse. The considerations to be taken into account here are very much the same as those to which I have referred in the preceding paragraph. In view of the length of time that this family dispute has subsisted and the strength of the hostile emotions which have evidently been generated by it, it seems to me that some form of compulsitor is necessary to remind the defenders, especially in the heat of the moment when they meet the pursuer, that they must be careful not to act in breach of the interdict. As the sheriff puts it in his note, a power of arrest "would serve to underline to the defenders the importance of behaving appropriately and responsibly whenever they came across the pursuer and that abuse in breach of the interim interdict was unjustifiable". In all the circumstances I am persuaded that this is a case where it is necessary to attach a power of arrest in relation to each defender to protect the pursuer from risk of abuse in breach of the interdict.

[25] I should perhaps add that, reading the third defender's defences and the affidavits by the first defender, his wife and the second defender, I suspect that this might be one of those cases in which an interdict against the pursuer with a power of arrest attached thereto might be as well justified as the interdict and power of arrest which the sheriff has granted against the defenders. But the fact that there may be fault on the part of the pursuer as much as on the part of the defenders is not of itself a reason for not attaching a power of arrest in the pursuer's case if, as I am satisfied, such a power of arrest is necessary to protect him from the risk of abuse in breach of the interdict. It may of course be said in this situation that the pursuer might seek to abuse the power of arrest that has been granted. In my opinion the answer to this is that the power is given, not to him, but only to a police constable who in turn may only exercise it if both the conditions specified in section 4(1) of the Act are satisfied.

[26] On the whole matter I am persuaded that, notwithstanding that he misdirected himself in law, the sheriff was correct to attach a power of arrest to the interdict which he pronounced on 27 September 2004. I have therefore refused the appeals by all three defenders.

[27] Counsel for the first defender and the solicitors for the second and third defenders all proposed that the expenses of the appeal should follow success. But the solicitor for the pursuer proposed that, whatever the outcome of the appeal, the expenses of the appeal should be expenses in the cause. The pursuer having been successful in the appeal, I have adopted the course proposed by his solicitor.