Scottish Sheriff Court Decisions

(B581/05)

JUDGMENT OF

SHERIFF PRINCIPAL EDWARD F BOWEN QC

in the appeal

in the cause

THE CITY OF EDINBURGH COUNCIL

Pursuer and Appellant

against

DONALD ALFRED GIBSON

Act: McCaig, Solicitors, The City of Edinburgh Council

Alt: Sabir, Solicitor, Somerville & Russell

EDINBURGH, 31 MARCH 2006

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor of 15 December 2005; finds the pursuers and appellants liable to the defender and respondent in the expenses occasioned by the appeal and remits the account thereof when lodged to the Auditor of Court to tax and to report thereon.

NOTE:

1. This appeal raises a short but perhaps important point as to the "necessity" for the making of an interim Antisocial Behaviour Order under section 7 of the Antisocial Behaviour Etc (Scotland) Act 2004.

2. The pursuers and appellants, being The City of Edinburgh Council, presented an application under section 4 of the Act for an Antisocial Behaviour Order in respect of the defender and respondent prohibiting him from (1) shouting at, swearing at, verbally threatening or abusing staff and fellow patients at Edinburgh Royal Infirmary, its surrounding car parks and in particular within the Renal Unit of said Infirmary; (2) physically approaching, intimidating or assaulting staff or fellow patients at the same locus and (3) loitering in or around Edinburgh Royal Infirmary its car parks and common areas "except for the purposes of attending for emergency treatment, medical appointment or dialysis due to him every Monday, Wednesday and Friday between 0800 and 1400 hours". On 15 December 2005 the Sheriff heard an application for an interim Order under section 7 of the Act. Sub-section 2 thereof sets out the conditions on which the Sheriff requires to be satisfied before making such an order. These include "(c) that an Antisocial Behaviour Order is necessary for the purpose of protecting relevant persons from further antisocial behaviour by the specified person". The Sheriff refused to make an interim Order holding that it was not necessary.

3. On one view the case for making an interim Antisocial Behaviour Order was overwhelming. From the terms of the application, it appears that the defender is a patient who requires to attend regularly at Edinburgh Royal Infirmary for dialysis treatment. Article 5 of the Condescendence in the pursuers' application reads: "During the defender's attendance for treatment the defender has regularly threatened abused and intimidated Edinburgh Royal Infirmary staff and other patients therein causing them to suffer fear, alarm, anxiety and distress. The defender has a personality disorder. He does not suffer from any psychiatric disorder and is fully responsible for his actions". The detailed averments and supporting productions amply support this general outline of the pursuers' concerns. The defender has been convicted on at least one occasion of breach of the peace committed within the Royal Infirmary, and has been charged on other occasions. It is said that a security guard has been employed "solely to monitor the defender's behaviour whilst within the hospital grounds".

4. When the case called before the Sheriff he was informed that the defender was already the subject of an interim interdict granted in the Court of Session. That interim order had been obtained in proceedings at the instance of Lothian Health Board and arose out of concerns on the part of the petitioners for the safety of their staff and patients at the Royal Infirmary. On 25 November 2005 the Lord Ordinary pronounced interim interdict against the defender "from molesting the petitioners' staff, patients and visitors by abusing them verbally, threatening them, placing them in a state of fear and alarm or distress or using violence towards them".

5. The Sheriff records that when the application for an interim ASBO came before him "it was not explained....that the interim order sought would give any added protection to the members of staff concerned". A similar position pertained before me. The agent for the appellants drew attention to the criteria for making an interim Antisocial Behaviour Order in terms of section 7 of the Act but failed to explain on what basis the making of an order would provide any additional protection to staff, patients and visitors at the Hospital beyond that already provided by the Court of Session interim interdict. His position appeared to be that whilst the appellants had title to bring the present proceedings Lothian Health Board did not; the appellants had a wider responsibility than that of the Health Board, and that was sufficient to justify making the application.

6. Part of the argument advanced on behalf of the defender in response was that the making of an interim ASBO would place him in "double jeopardy". I am not much impressed by that suggestion. The issue of "double jeopardy" would only arise were the defender to find himself in two separate courts facing allegations of breaches of court orders on a single set of circumstances. It might be argued at that stage that he would be subject to double jeopardy if dealt with on each occasion. But that stage has not yet been reached and can be avoided by the defender himself refraining from the behaviour complained of.

7. I am therefore inclined to reject the defender's "double jeopardy" submission, but on the other hand take the view that no convincing reason was advanced either to the Sheriff or to me for the making of an order which on the face of it has no greater effect that the interim interdict pronounced in the Court of Session. On reflection, however, I consider that there is an important distinction which, if founded on, could in appropriate circumstances justify the making of an interim ASBO alongside an interim interdict. That relates to the ability to enforce the order of the court. The interim interdict pronounced by the Court of Session did not have attached to it a power of arrest. It could only be enforced by the institution of proceedings for breach of interdict, in effect a form of contempt of court. Breach of an interim ASBO on the other hand is a matter which constitutes an offence in terms of section 19 of the 2004 Act. If an order were to be made and the defender were to breach it, he could be subject to immediate detention by the police. It is not hard to see that this could have practical advantages.

8. Whilst there may be benefit in that immediate power of detention being available in this, and indeed in many cases, I am not of a mind to grant an order on the basis of a submission not advanced before me. I am even less inclined to take the view that the Sheriff exercised his discretion wrongly when any potential advantage of this nature was not mentioned to him. In all these circumstances whilst it might be said that as a matter of generality the making of an interim Antisocial Behaviour Order should not be excluded simply because an interim interdict in similar terms is in force I do not propose to allow this appeal, particularly as I was informed that there had been some signs of improvement in the defender's behaviour.

9. I would only add had I been disposed to make an order sought by the pursuers I would have I would not have been inclined to allow part 3 which embraces "loitering in or around Edinburgh Royal Infirmary". Whilst I can see that in certain circumstances "loitering" might constitute "antisocial behaviour" from which relevant persons are entitled to be protected it is debatable whether in the circumstances of this case an order against loitering would be appropriate. Moreover the qualification whereby attendance for emergency treatment is excluded appears to me to open up a number of possible areas of uncertainty. In short I consider that the order sought in that particular respect is too vague.