NOTE

 

by

 

SHERIFF D C W PYLE

 

in causa

 

THE HIGHLAND COUNCIL

 

against

 

ALAN MICHAEL DEWAR

 

 

 

 

 

13 June 2007

 

Introduction

 

This is a summary application under the Antisocial Behavior etc (Scotland) Act 2004. The pursuers are a local authority. (I prefer to use the plural noun, notwithstanding the use of the singular in the application.)

 

On 6 June 2007, the sheriff granted the pursuers an interim anti-social behavior order in terms of parts 1 and 2 of the first crave. The case came before me for consideration of the making of a final order. The pursuers were represented by Ms Dewar, solicitor. The defender, who is only 16 years of age, was unrepresented. I asked him whether he still wished to instruct a solicitor to appear for him. He said he did not care and was "not bothered" about it at all. It was a show of bravado which I did not believe was the defender's honest view of the proceedings. Nevertheless, there seemed no prospect of his now seeking legal representation. I therefore decided to proceed on the basis that the defender was not wishing to dispute the averments of fact contained in the application. I thought it safe to assume that he was still technically opposing the grant of the application and, in any event, I considered that I myself still had to be satisfied that the pursuers were entitled to the order sought.

 

 

Legislation

 

Section 4 of the 2004 Act provides, inter alia,:

"(1) On the application of a relevant authority, the sheriff may, if satisfied that the conditions mentioned in subsection (2) are met as respects the person to whom the application relates (the "specified person"), make an antisocial behaviour order.

(2) Those conditions are-

(a) that the specified person is at least 12 years of age;

(b) that the specified person has engaged in antisocial behaviour towards a relevant person; and

(c) that an antisocial behaviour order is necessary for the purpose of protecting relevant persons from further antisocial behaviour by the specified person.

(3) For the purpose of determining whether the condition mentioned in subsection (2)(b) is met, the sheriff shall disregard any act or conduct of the specified person which that person shows was reasonable in the circumstances...

(4)...

(5) Subject to subsections (6) and (7), an antisocial behaviour order is an order which prohibits, indefinitely or for such period as may be specified in the order, the specified person from doing anything described in the order.

(6) The prohibitions that may be imposed by an antisocial behaviour order are those necessary for the purpose of protecting relevant persons from further antisocial behaviour by the specified person.

(7) If an antisocial behaviour order is made on the application of a local authority the order may, in addition to imposing prohibitions that are necessary for the purpose mentioned in subsection (6), impose such prohibitions as are necessary for the purpose of protecting other persons ("affected persons") from further antisocial behaviour by the specified person.

(8) - (12)...

(13) In this section, "relevant person" means-

(a) in relation to an application by a local authority, a person within the area of the authority..."

 

 

The Application

 

The pursuers in their crave seek an anti-social behaviour order for a period of three years, which would prohibit the defender from,

"1. Leaving the house and garden ground at 43 Carnarc Crescent, Inverness between the hours of 7pm and 7am, daily;

2. Generating excessive levels of noise at said house at 43 Carnarc Crescent, Inverness and in the garden ground thereof by the playing of loud music in said house or permitting others to do so and by the revving of the engines of motor cars in said garden ground;

3. Entering that area of ground at South Kessock, Inverness, shown delineated in red on the Plan annexed and signed as relative hereto between the hours of 7am and 7pm, daily, but excepting therefrom said house and garden ground at 43 Carnarc Crescent, Inverness and the retail premises known as "The Spar", 45 Thornbush Road, Inverness and for the purpose of taking access to and egress from said house and retail premises by legal means only, the roads at Carnarc Crescent, Kessock Avenue, Kessock Road and Thornbush Road, South Kessock, all as said house and garden ground and said roads are shown delineated in yellow and coloured blue on said Plan."

 

The pursuers aver in the condescendence that the defender lives with his mother in the end terraced house forming 43 Carnarc Crescent. She is a tenant of the pursuers. They have lived there since November 2006. The pursuers go on to aver numerous incidents involving the defender. These can be usefully classified under a number of headings:

(1)   Excessive noise

The pursuers aver that between November 2006 and April 2007 the defender has persistently generated or has permitted others to generate an excessive level of noise at his house at all times of day and night by playing music loudly both inside the house and in the rear garden by congregating with groups of associates and by drinking alcohol. He has also generated excessive levels of noise late at night and into the early hours of the morning in the playing fields known as West Fields (immediately behind the defender's house) by carrying out work to motor cars parked there and by revving their engines. Without prejudice to the foregoing generality, the pursuers go on to aver specific incidents during that period, namely

(a)    on 7 January 2007 at 3am, a neighbour was awoken by the sound of the defender revving the engine of a motor car in his garden. This lasted for up to 45 minutes. The defender apologised to the neighbour;

(b)   on 12 January 2007, the same neighbour and his children were prevented from sleeping at 12.30am by the excessive noise of music emanating from the defender's house;

(c)    on 19 and 20 January 2007, the same neighbour was disturbed by the excessive noise coming from the defender and his associates being present in the defender's garden and in which they were drinking alcohol;

(d)   on 28 January 2007 after 11pm, the same neighbour was prevented from sleeping by the defender and his associates playing loud music within the defender's house. The noise was so loud that the party wall between the defender's house and the neighbour's house was vibrating;

(e)    on 5 February 2007 at 11pm, the same neighbour was again disturbed by the excessive level of noise created by the defender and his associates in his house, where they were playing loud music and were under the influence of alcohol. After being requested to do so, the noise abated, but began again at 1.20am and woke the neighbour;

(f)     on 28 February 2007, the defender was again playing music at an excessive noise level within his house. It was so loud that it obliterated the sound of the television in the neighbour's house;

(g)    on 3 March 2007 during the evening, the defender was again playing music at an excessive noise level within his house. The police became involved, about which the defender complained to the neighbour. The defender said that there was a fault with his stereo equipment and promised not to cause disturbance in the future;

(h)    on 4 and 7 March 2007, despite that promise, the defender again played music at an excessive noise level within his house;

 

(2)   Contraventions of the Road Traffic Act

The pursuers aver that over the same period the defender has persistently caused alarm and distress to his next door neighbours by driving motor vehicles on the streets of South Kessock at excessive speeds and in a dangerous or careless manner whereby the neighbours are prevented from permitting their children to go outside to play, and has persistently contravened the Road Traffic Act 1988 by driving without a licence or insurance. Without prejudice to the foregoing generality, the pursuers go on to aver specific incidents during that period, namely

(a)    on 5 or 6 November 2006, the defender broke into a garden shed at 30 Thornbush Road and stole a moped which he then drove on various occasions over the next three days on Thornbush Road, Anderson Street and other roads in Inverness. He had neither a licence or insurance for the vehicle. He subsequently pleaded guilty to these offences at Inverness Sheriff Court and sentence was deferred for him to be of good behaviour until 24 May 2007;

(b)   between 1 and 17 January 2007, the defender drove a motor vehicle over West Fields and collided with goal posts which have since been repaired at a cost of £152;

(c)    on 28 January 2007 at about 11pm, the defender's neighbour was alarmed and distressed to observe the defender driving a motor car from his rear garden to Carnarc Crescent from where he accelerated at speed, causing the wheels to spin. He drove back into Carnarc Crescent at excessive speed, skidded to a halt and carried out a hand brake turn. He continued these manoeuvres over a period of two hours;

(d)   on 29 January 2007, the defender again drove the car on the streets of South Kessock, causing alarm and distress to his neighbour. His behaviour was reported to the police;

(e)    on 30 January 2007, the defender did the same again. On this occasion he drove dangerously and at excessive speed and collided with a fence and lamp post outside his house. Several neighbours were alarmed and distressed. His behaviour was reported to the police;

(f)     on 21 February 2007 at 11.44pm, the defender again drove a motor car along Carnarc Crescent. He was prosecuted for driving without a licence or insurance and without an MOT certificate, and that subject to two bail aggravations The trial diet was fixed for 11 June 2007;

(g)    on 1 March 2007 at 12.30pm, the defender repeated the same offences along Carnarc Road. On the same date the defender also resisted arrest and committed a breach of the peace by shouting, swearing and uttering threats of violence. He was again prosecuted, with a trial diet being fixed for 11 June 2007;

(h)    on 9 or 10 March 2007, at 58 Craigton Avenue the defender stole a motor car and then drove it along Rosehaugh Road and elsewhere - again without a licence or insurance He also drove it at excessive speed along Rosehaugh Road and collided with a parked car, causing damage to both cars. He failed to stop or report the accident. He was prosecuted for these offences, which included bail aggravations. The trial diet is fixed for 20 June 2007. The defender was released on bail but subject to a special curfew condition that he remain within his house from 9pm to 7am.

(i)      on 23 March 2007 at 4.30pm, in Old School Place, Inverness, the defender drove a motor cycle - again without a licence, insurance or MOT certificate. He was also not wearing a helmet. He has been prosecuted for these offences, which again included bail aggravations. The trial diet is fixed for 11 July 2007.

 

 

(3)   Other criminal behaviour

The pursuers also aver that over the same period the defender has caused distress and alarm to persons in South Kessock by damaging goal posts in West Fields, by swearing at and verbally abusing a neighbour at Carnarc Crescent, by assaulting persons on Rosehaugh Road and Grant Street, by stealing and damaging motor vehicles in Thornbush Road and Rosehaugh Road and by resisting police arrest at Carnarc Crescent. Without prejudice to the foregoing generality, the pursuers go on to aver specific incidents during that period, namely:

(a)    on a date between 17 January and 6 March 2007, the defender jumped and swung on the goal posts on West Fields, causing damage which cost £152 to repair;

(b)   on 27 January 2007, (i) while acting along with another, the defender broke into the house at 93 Rosehaugh Road with intent to steal, (ii) on the same date at 97 Rosehaugh Road, the defender punctured with a hammer the tyres of a motor vehicle, and (iii) on the same date at 46 Rosehaugh Road, whilst acting with another, stole a motor vehicle. He was prosecuted for these offences. The trial diet has been fixed for 25 July 2007;

(c)    on 1 March 2007, at Carnarc Crescent the defender resisted two police constables in the execution of their duty and struggled violently with them He also shouted, swore, uttered threats of violence and committed a breach of the peace. He was prosecuted for these offences. The trial diet was fixed for 11 June 2007;

(d)   on 10 March 2007, at 65 Rosehaugh Road the defender assaulted a fifteen year old girl by pulling her to the ground and repeatedly punching and kicking her on the head and body, all to her injury. He also assaulted a woman by punching her on the head and body to her injury. He was prosecuted for these offences, which included bail aggravations. A trial diet has been fixed for 20 June 2007;

(e)    on 26 March 2007 at 9.15pm, at 31 Carnarc Crescent the defender broke a window by throwing a spanner at it. The repair cost was £470.61. He was prosecuted for this offence, to which he pleaded guilty. Sentence was deferred to 8 May 2007 for background reports;

(f)     On 30 March 2007 at 2.54pm, at 37 Carnarc Crescent the defender conducted himself in a disorderly manner, shouted and swore, brandished a knife, threatened the lieges with violence and committed a breach of the peace. He was prosecuted for the breach of the peace and the possession of the knife as well as bail aggravations. A trial diet has been fixed for 19 July 2007. The defender was initially remanded in custody, but was released on bail by the High Court of Justiciary on appeal;

(g)    On 17 April 2007 at 6.53pm, in Telford Street, Lochalsh Road and Dunabban Road, all Inverness, the defender conducted himself in a disorderly manner, shouted and swore, challenged the lieges to fight and committed a breach of the peace. He was also in possession of a glass bottle. On the same date in Dunabban Road he assaulted a 55 year old man by repeatedly striking him on the head with a bottle, whereby he fell to the ground and was injured. The defender was prosecuted for these offences, which included bail aggravations. A trial diet was fixed for 28 May 2007. He was remanded in custody.

 

 

Discussion of the approach to be adopted

 

It is beyond dispute that the first two conditions of sub-section 4(2) of the 2004 Act have been met, namely that the defender is at least 12 years of age and has engaged in anti-social behaviour towards relevant persons - indeed it is difficult to envisage a more obvious example of the very behaviour about which the Act is concerned.

 

The statutory test is that the order - and the prohibitions it contains - must be necessary for the purpose of protecting relevant persons from further anti-social behaviour by the defender. This test was emphasised in R (McCann) v Manchester Crown Court [2002] 4 All ER 593 (also reported in (2003) 1 AC 787, although I have not had sight of that report). The purpose of an order is not to punish a defender for anti-social conduct, but to prevent its repetition. (Lord Steyn at p605 (d-f); Lord Hope of Craighead at p614 (c-d))

 

The Act offers no guidance about how the test of necessity should be construed. That is a matter for the court to determine. As was said by Sheriff Principal Bowen in Glasgow Housing Association v Sharkey (2005 SLT (Sh Ct) 59 (at p63), it is "simply an exercise of judgment and evaluation".

 

McCann also decided that the proceedings were civil, not criminal. (This was an English appeal, but Lord Hope of Craighead discussed the same question in connection with the equivalent Scottish proceedings - at p613ff.) It therefore follows that the civil rules of pleading and evidence apply. These include a duty upon the party bringing a summary application to make averments which pass the test of relevancy and sufficiency and give fair notice to the defender of what facts in support of the application it is intended to prove.

 

As I have said, I am in no doubt that the pursuers have more than sufficiently set out averments that the defender has engaged in anti-social behaviour to relevant persons. Nor, in my view, do the pursuers need to make any other averments of fact to satisfy the test that an order in some form is necessary for the purpose of protecting relevant persons from further anti-social behaviour by the defender.

 

In my opinion, however, the pursuers in an application such as this one must go further in their pleadings and in what they offer to prove. They must also apply their mind to the tests set out in sub-sections 4(6) and 4(7), namely what prohibitions should be contained in the order for the purposes set out in those sub-sections. Of course, in many cases it may be that little more need be averred or proved, on the basis that the prohibition sought is so obvious. A prohibition, for example, not to perform any illegal act could scarcely be described as unnecessary. This is similar to the standard molestation interdict in matrimonial proceedings; it must be obvious to any defender that he should not commit a crime, whether he chooses to do so or not. The purpose of a molestation interdict, particularly where a power of arrest has been granted, is to ensure that a breach can be dealt with promptly and effectively. The same can be said of anti-social behaviour orders which contain such a prohibition.

 

The situation is, however, different where the prohibitions sought go further than that. It is one thing to prohibit a defender from doing something which he has no right to do in the first place; it is quite another where the prohibition has the effect of restricting his liberty.

 

In my opinion, the pursuers require to aver and to offer to prove why such a prohibition is necessary to protect persons from further anti-social behaviour by a defender. Much will turn on the facts and circumstances of each case - and it may well be that only the briefest averments will be required in a case where as a matter of commonsense the proposed prohibition is necessary. It might, for example, be sufficient to state that the police support the application. But it seems to me that the more the proposed prohibition restricts the liberty of a defender, the more the pursuers will have to aver detailed reasons why it is considered that the prohibition will achieve the aim of the Act.

 

That there is a burden on the pursuers to prove the necessity of any proposed prohibition is supported by Lord Hope of Craighead in McCann, when he said (at p620 (g-h)):

"An anti-social behaviour order may well restrict the freedom of the defendant to do what he wants and to go where he pleases. But these restrictions are imposed for preventive reasons, not as punishment.... The court is not being required, nor indeed is it permitted, to consider what an appropriate sanction would be for his conduct. Moreover, while the court may restrict the defendant's liberty where this is shown [my italics] 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."

 

The pursuers' averments in support of the prohibitions craved are limited. In Article 6 of Condescendence, they aver:

"The Defender's behaviour as hereinbefore condescended upon is affecting the lives of his neighbours and other persons in the local authority area for which the Pursuer is responsible."

In the light of the defender's admitted behaviour, the truth of that averment is self evident.

 

The pursuers go on to aver:

"In light of the Defender's behaviour, an Antisocial Behaviour Order is necessary to protect such persons from further antisocial acts or conduct by him. Reference is made to Section 4(7) of The Antisocial Behaviour etc. (Scotland) Act 2004."

I agree with these averments, except that the reference ought to have been to sub-section 4(2)(c) of the Act. Furthermore, the pursuers' earlier averment shows that they are concerned about the protection of "relevant persons", not "affected persons", and are therefore relying upon sub-section 4(6), not 4(7).

 

Then the pursuers aver:

"The Pursuer seeks an Order having effect for three years. In the light of the history of the Defender's behaviour, the Pursuer considers that a period of three years is a reasonable period in which to assess whether an indefinite order is necessary to protect persons in the authority's area from further antisocial acts or conduct by the Defender."

In Article 7, the pursuers aver:

"The Pursuer has consulted with the Chief Constable of Northern Constabulary before seeking a warrant on this summary application. The Chief Constable concurs with and supports the presentation of this summary application to the Court."

 

The pursuers' solicitor added little to these averments, except to tell me that the pursuers' policy is to review such orders on a regular basis. She said that she would not allow the order to remain in force for longer than was necessary and "as an officer of court" would ensure that an application to review or revoke the order would be presented the moment that point was reached. As I remarked, it was not obvious to me how she could give such a personal undertaking on behalf of her employers.

 

My first and overriding problem is with the period of three years sought for the order. The pursuers simply aver that they need three years to decide whether or not they need an indefinite order. In my opinion, that alone does not satisfy the necessity test. The manner in which the application is framed is almost to suggest that it is a concession by the pursuers, with the approval of the police, not to seek an order for an indefinite period. The Act does allow for the possibility of such an order, but in my view the pursuers have misconstrued the test of necessity if they think that it is enough simply to seek an order for a fixed period as a preliminary to an order for an indefinite period. Such a latter order in the instant case conjures up a picture of an old age pensioner stealing cars and vandalising property. I say that not to be flippant, but to illustrate the absurdity of the pursuers' position and their failure properly to consider the test of necessity in framing their crave. In any event, the pursuers have not explained why it will take them three years to decide whether an order for an indefinite period is necessary.

 

In my opinion, there are a number of relevant considerations which the pursuers might have addressed. I give the following only as examples:

1. The defender is new to the adult criminal system, although he has been very active in discovering its operation since his 16^th birthday. No consideration seems to have been given to what, if any, effect that system has had on him or might have on him in the future. In saying that, I am careful not to suggest that the purpose of the order is to punish the defender. But it seems to me that any punishment he has in fact suffered since the behaviour occurred is a relevant consideration in determining, for example, whether there has been any change of attitude by him about future offending, which might affect the necessity of the prohibitions sought.
2. Do the police have any experience of other cases where orders for such a length of time have been in operation? Or do they have knowledge of the experiences of other forces?
3. What, if any, has been the involvement of the pursuers' social work department in the defender's life?
4. Had he appeared before the Children's Hearing? If so, what has been the results?

 

It is, in my view, significant that the first proposed prohibition, namely a curfew for three years, is three times the maximum length of a Restriction of Liberty Order under Section 245A of the Criminal Procedure (Scotland) Act 1995 - a sentence which may be imposed for an offence punishable by imprisonment. There are many objectives which a sentencer may have in mind when deciding what sentence to impose. These include punishment, protection of the public, denunciation and rehabilitation (Nicholson, Sentencing, Law and Practice in Scotland, 2^nd edit, p178ff). Another objective is deterrence of the accused from committing further crime, which, expressed as prevention, is the same (and only) objective for anti-social behaviour orders. It will often be the case that a sentence will be more severe where more than the deterrence objective comes into play. It would therefore be surprising that on the one hand Parliament considered that a maximum of one year is sufficient for a Restriction of Liberty Order (in effect a curfew with technology) where all the sentencing objectives might be relevant, and on the other contemplated an order of three times its length where only deterrence is the objective. I emphasise again that a curfew under an anti-social behaviour order is not intended to be a punishment, (although I doubt that the defender sees it that way), but I consider it legitimate to make a comparison with a form of punishment which has the same practical effect.

 

It is not uncommon for the court to grant bail in criminal proceedings with a curfew condition attached. In practice, this can last for up to six months. It seems to me that a prohibition for that period, at least in the absence of any other factors presented to me by the pursuers, should be sufficient to test the willingness of the defender to mend his ways.

 

As regards the second proposed prohibition, there is plainly not the same difficulty - in that it seeks to prohibit only what would be criminal conduct anyway. Nevertheless, I consider, again in the absence of any other factors presented to me by the pursuers, that a period of six months is long enough to discover whether or not the defender intends to continue his anti-social behaviour.

 

I turn now to the third proposed prohibition. On any view, this is a severe restriction of the defender's liberty. Its effect would be that the defender would be unable to go anywhere within the district of the city where he lives other than the road in and out of it, his house and the local convenience store. Nevertheless, it can be regarded as a type of restriction which might in appropriate circumstances be warranted as a means of preventing further anti-social behaviour. On the other hand, some of the behaviour complained of occurred in streets along which he would still be allowed to travel. Moreover, the majority of the complaints relate to behaviour which affected residents of Carnarc Crescent itself. Now, that is not to say, of course, that even one incident affecting other persons should not merit such a prohibition. But it seems to me that it is not self evident in the whole circumstances of this case that such a prohibition is necessary, particularly where other prohibitions are to be granted. As I have said, the pursuers offered no further evidence, such as the experience of the police in dealing with other offenders whether in Inverness or elsewhere, which would have allowed me to apply the test of necessity in an informed, rather than simply intuitive, way.

 

In these circumstances, I have therefore decided not to grant this part of the crave.

 

I should add finally that the pursuers' solicitor told me that the defender had been acquitted of the charges arising out of the alleged incident on 17 April 2007 (number (3)(g) supra). She submitted that this incident was still relevant because the standard of proof was different. (She might also have added that the defender's position appeared to be that he admitted all the averments, including the ones relating to this incident.) I do not agree that the standard of proof is different. If McCann were to be followed in Scotland, the criminal standard of proof would apply. I reserve my opinion on whether it is appropriate to allow a proof of averments of criminal conduct where the defender has already been acquitted of such conduct in a criminal court.

 

Decision

 

Accordingly, I have decided to grant the application quoad parts 1 and 2 of the first crave, but for a period of only six months. I will refuse the application quoad part 3 of that crave.

 

As moved by the pursuers, I will find no expenses due to or by either party.