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Case Reference Number:
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B407/07
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SHERIFFDOM
OF TAYSIDE, CENTRAL AND FIFE AT
KIRKCALDY
JUDGMENT OF SHERIFF WILLIAM HOLLIGAN
in an application for a Closure
Order
in respect of premises at
174 Elgin Drive, Glenrothes, Fife
KIRKCALDY 12th
October 2007. The sheriff, having heard
counsel for the applicant and for the respondent and, having heard evidence,
being satisfied that the conditions set out in section 30(2) of the Antisocial
Behaviour etc. (Scotland) Act 2004 ("the 2004 Act") are met and having regard
to the matters set out in section 30(3) of the 2004 Act, MAKES an order under
section 29 of the 2004 Act that the premises at 174 Elgin Drive, Glenrothes,
Fife, being the end terraced dwelling house together with garden ground shown
delineated in black, coloured red and marked "174" on Plan 1 enclosed
with the application are, subject to section 31 of the 2004 Act and the
reservations hereinafter prescribed, closed to all persons for a period of
three months from the date hereof, RESERVING to Fife Council as heritable
proprietor, and any persons acting on their behalf, a right of access to the
dwelling house and garden ground; and to Lynsey McEwan, with the consent of
Fife Constabulary, and on such terms as they consider reasonable, a right of
access to the premises to remove her personal belongings; and directs
intimation of this interlocutor by the applicant to Lynsey McEwan and by
posting a copy thereof at a prominent place at the premises at 174 Elgin Drive,
Fife; certifies the cause as suitable for the employment of junior counsel;
finds no expenses due to or by either party.
NOTE
[1] This
is an application brought pursuant to Part 4 of the Antisocial Behaviour
Etc. (Scotland) Act 2004 ("the 2004 Act") in which a Superintendent of Fife
Constabulary seeks a Closure Order in relation to premises at 174 Elgin
Drive, Glenrothes, Fife ("the premises").
The application first called before me on 14 September 2007. I
postponed determination of the application until Thursday 20 September at
which point the solicitor for the respondent in this case, Lynsey McEwan,
lodged a Minute which, in summary, stated that sections 26-30 of the
2004 Act were outwith the legislative competence of the Scottish
Parliament pursuant to section 29(2)(d) of the Scotland Act 1998 in that
they were not compatible with Articles 6 and 8 of the European Convention
on Human Rights ("the Convention").
Having regard to the short timetable prescribed by the 2004 Act (upon
which I will comment further) I adjourned the matter until 21 September
for intimation of the Minute. The case
was then continued until 25 September.
On that day counsel appeared for the applicant, the respondent and the
Lord Advocate. By agreement, the
Devolution Minute was dropped. I heard
evidence on 25th and, again, on 27 September
2007, at which point I made avizandum,
having stated to the parties that I would endeavour to issue a judgment in this
matter no later than 12 October.
[2] As
became apparent during the conduct of the hearing before me, Part 4 of the
2004 Act is closely modelled upon Part 1 of the Antisocial Behaviour Act
2003 ("the 2003 Act"), an Act of the United Kingdom Parliament which does not
apply to Scotland. I mention this
because I was referred to a number of English authorities which deal with
issues similar to those raised by the present case. The procedure laid out in
Part 4 of the 2004 Act is as follows.
Section 26 grants to a senior police officer a power to authorise
the service of a Closure Notice prohibiting access to premises by any person
other than, inter alia, the person
who habitually resides in the premises.
Authorisation of such a notice may only be made if the conditions
prescribed in section 26(3) of the 2004 Act are satisfied. The notice then requires to be served and an
application must be made to the sheriff.
Section 28(3) provides that the application shall be made no later
than the first court day after the day on which service of the Closure Notice
has been made. Section 28(5)
provides that an application shall:
"(a) specify the premises in respect of which the Closure Order is
sought;
(b) state
the grounds on which the application is made;
and
(c) be
accompanied by such supporting evidence (whether in documentary form or
otherwise) as will enable the sheriff to determine the application."
The relevant parts of section 30
are as follows:
"(1) On an application under section 28, the
sheriff may, if satisfied that the conditions in sub-section (2) are met,
make a Closure Order in respect of premises.
(2) Those
conditions are -
(a) that a person has engaged in antisocial
behaviour on the premises;
(b) that the use of the premises is associated
with the occurrence of relevant harm;
and
(c) that the making of the Order is necessary
to prevent the occurrence of such relevant harm for the period specified in the
Order.
(3) The sheriff shall, in determining whether
to make a Closure Order in respect of premises, have regard to:
(a) the ability of any person who habitually
resides in the premises to find alternative accommodation; and
(b) any vulnerability of any person such as is
mentioned in paragraph (a) who has not been engaged in antisocial
behaviour which has occurred on the premises.
(4) Subject to sub-section (5), a sheriff shall
determine an application under section 28 no later than the second court
day after the day in which the application is made.
(5) The sheriff may postpone determination of
the application for a period of not more than 14 days to enable a person
mentioned in sub-section (6) to show why a Closure Order should not be
made.
...
(7) Where, under sub-section (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 in the following terms:
"(1) For the purposes of this Act ... a person A
engages in antisocial behaviour if A -
(a) acts
in a manner that causes or is likely to cause alarm or distress; or
(b) 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."
[3] Part XXVII
of the Summary Applications Rules, and in particular, Rule 3.27.6 and
3.27.7, together with the forms relative thereto, establish certain procedures
for dealing with applications pursuant to Part 4 of the 2004 Act.
Beyond that there are no rules dealing with a situation such as the present
when the application is opposed. There is no provision for answers nor any
procedure specified for any hearing.
[4] Lodged in
process is an application which has annexed to it six appendices described as
follows:
Appendix A - maps and photographs
Appendix B - pending standard police reports
Appendix C - storm call cards
Appendix D - witness statements
Appendix E - councillor emails
Appendix F - housing investigation team summary re 121 Elgin Drive
In
addition to the material to which I have referred, I heard evidence from
PC Gary Kenhard and Lynsey McEwan. Both witnesses were cross-examined.
[5] There
is no dispute that the premises comprise a property owned by Fife Council. The respondent is the tenant thereof. The premises comprise an end terraced
two-storey dwelling house in a residential street in the Tanshall district of
Glenrothes. The premises include a front
and back garden to which there is access from the street. On the ground floor there is a living room
and kitchen. Upstairs there are two
bedrooms and a bathroom.
[6] PC
Kenhard went through the various parts of the application and, where
appropriate, explained the information and where it came from. I have no
difficulty in accepting PC Kenhard as a credible and reliable witness. In
summary, PC Kenhard's evidence was as follows. He is a community officer and has obtained
information about the premises and what happens thereat from a number of
residents and other sources. According
to his information the respondent has two children who do not live with
her. A Merle Carr did live with the
respondent, although Carr was not named as a tenant. In short, there have been consistent and
persistent complaints about the premises and the nuisance to neighbours caused
by their use. The only time the local
residents obtained any respite was when either the respondent and/or Carr were
in custody. It was said the premises
were being used for selling drugs. The
premises were constantly being visited by persons, both day and night, for the
purchase of drugs. Witnesses had spoken
to seeing persons injecting themselves in the street. PC Kenhard had personally dealt with a
young person who had taken a drug overdose at or about the premises. This behaviour had happened since the
respondent had taken up residence in or about March 2004 and was, at least,
ongoing for a period of three months prior to the date of the hearing
itself. Persons calling at the premises
were described as "scruffy, unkempt, thin, gaunt, degenerate and drug addict
looking". Some of the persons in the
vicinity were known to have reputations for violence and witnesses were afraid
for their own safety and that there would be retribution if they came forward
and gave evidence. The number of callers
per day ranged from 39 to 5. Residents
were deeply upset and concerned. They
had witnessed many persons under the influence of drugs. So far as PC Kenhard was aware the
premises were the only premises in the vicinity being used for selling
drugs. He had spoken to
10 householders personally who had all given him similar reports. PC Kenhard explained that the storm
cards recorded reports made to the police, in this case, concerning the
premises. There were three in 2007 and
one in 2006. There was a period of a
lull during which the respondent was in custody. PC Kenhard had obtained information from
the housing investigation team of Fife Council.
He had been told about the activities of the respondent and complaints
concerning her at a previous address (121 Elgin Drive). There was material which disclosed a similar
pattern of antisocial behaviour at those premises. The application itself contained information
from the Scottish Intelligence Database.
PC Kenhard explained that this is a national database which records
information given to the police. None of
the appendices dealt with this, but the application itself recorded some 28
separate entries between May and August 2007.
The source material ranged from A1, which he said was information of the
highest reliability down to E4, being the lowest reliable source. (There is an entry for 15 May 2007 without an allocation which was
just an oversight). The information was
compiled by PC Kenhard from the police computer. In short, the information narrated a
catalogue of events concerning the premises and the sale of drugs
therefrom. The application contains
information under the head of "Police action", which should be read in
conjunction with Appendix B. This
narrates that, in short, there were two police raids upon the premises on 19
and 26 July 2007 respectively, all
on suspicion of contravention of the Misuse of Drugs Act 1971. The respondent had also been visited by the
housing department and the police and given certain advice which the respondent
had failed to take. So far as
PC Kenhard was aware, there was no date set for the determination of the criminal proceedings following the police
raids. PC Kenhard spoke to the
distress and concern of local residents who, in particular, felt that they
could see no evidence of any official action to give them respite from the
behaviour. A Closure Order would bring
an end to the current antisocial behaviour and might indeed be of benefit to
the respondent as it may remove her from influences concerning the use of
drugs. PC Kenhard was aware that
the respondent did have certain health issues.
He understood that Fife Council would support the respondent. In particular, arrangements would be made to
take methadone elsewhere. Witness
statement R was that of a doctor who said he was willing to manage the
respondent's prescription for a period of 28 days if she was removed from the
premises.
[7] So
far as the taking of statements was concerned, in each case the statement was
read over to the witness. The witness
was asked if the statement was accurate.
If so, the witness then signed the statement. There was nothing helpful said in relation to
the respondent in any statement which had not been written down. PC Kenhard characterised the behaviour at
the premises as a nuisance to the public which is both significant and
persistent. A period of closure of three
months was necessary. The police raids
in July have not terminated the behaviour.
[8] In
cross-examination PC Kenhard accepted there was no investigation as such
as to why the witnesses had made their statements although there was nothing,
so far as he was aware which suggested that they had any reason to make up the
statements. Since the granting of the
Closure Notice and the apparent departure of Merle Carr, no further offences
have come to light. PC Kenhard
accepted that it was possible that although drug dealing had been going on at
the premises it may not have been the personal responsibility of the
respondent. He personally was not aware
as to the further outcome of any prosecutions following the raids in July. PC Kenhard was then asked about the detail
concerning interviews of the respondent and Carr during their detention
following the two raids in July 2007. It
put that if blame did attach to the respondent and Carr, it was Carr who was
more involved in drug dealing than the respondent. PC Kenhard did say that he personally
had observed evidence of drug dealing when visiting the premises. He did not accept that the evidence of the
residents was exaggerated. In
particular, he did not accept that all of the witnesses have exaggerated the
position.
[9] The
respondent gave evidence. She said that
no one lived with her at present. She
said that Carr used to live with her a few nights a week. She accepted when the police raided the
premises on the first occasion drugs were found. She was not aware of the quantity of drugs
that were in the premises. She
personally did not sell drugs from the property. She was not responsible for drug
dealing. She also denied that Carr
stayed with her on a regular basis. She
wanted nothing more to do with Carr. She
personally had not seen the witness statements.
She accepted that she had had a troubled relationship with her former
partner when at 121 Elgin Drive and at the
premises. They had split up in February
2005 since when he had not been at the premises. She strongly denied that large numbers of persons
had attended the premises. There had
been a few girlfriends who had come round for coffee but nothing like the
number of persons referred to. She has
two children aged 2 and 8. They
presently live with their grandmother but the respondent was hoping to have
more contact with them. If she had to
move it would make matters more difficult.
She accepted that there have been some disturbing behaviour at the
premises but matters have been greatly exaggerated. She could not explain why the neighbours
would have exaggerated to that extent.
If she had to move from Glenrothes it would be difficult for her. All her family were there. She had health difficulties. She suffered from extreme panic attacks,
manic depression and a split personality disorder. She was on four different kinds of
medication. She was also in receipt of
methadone. If she had to move it would
be hard for her to get another doctor who understood her complicated medical
position.
[10] In
cross-examination the respondent said that she was often out of her house from
the morning until 8.00pm in the
evening. She would be out shopping and
visiting her mother. It was possible
that during that time there had been drug dealing of which she had no
knowledge. She rejected the suggestion
that there had been people injecting themselves with drugs and getting sick in
the vicinity. Certain people in the area
were ganging up on her. She accepted
that if it did happen it would be alarming.
There might have been 8 to 10 people calling at her house, but nothing
like 39. Carr had not been willing to
give evidence on the respondent's behalf.
She did accept that certain persons had attended at her house to get
drugs, but that was some months ago.
Carr was away from the premises and it would not happen now. She felt she had been bullied and manipulated
by Carr.
[11] I
have counted 18 witness statements: 11
from residents; 3 from community wardens;
2 from the housing department of Fife Council; one from a councillor and one from a
doctor. They are all anonymous and are
simply identified by a letter of the alphabet.
There is no dispute between the parties that the statements were taken
by the police. Some were taken by PC
Kenhard and others were not. Parties agreed that it was unnecessary to call
police witnesses who had taken the statements (other than PC Kenhard who gave
evidence on this and other matters).
Having read the statements myself, the following can be extracted from
them: the alarm and distress of the
residents; the constant stream of
persons by foot and by car;
identification of these persons as being drug addicts; the presence of Carr; the lack of "official" action and its
ineffectiveness; witnessing some persons
injecting themselves and, on some occasions, the addicts getting sick and their
behaviour generally; the adverse effects
on the residents; the fact that they
gain respite only when the respondent is in custody; continuation of the behaviour after the drugs
raids in July 2007; certain of the
witnesses knew the respondent from her prior address at 121 Elgin Drive and her
behaviour then; the community wardens
and housing officers all speak to similar complaints being made to them.
Submissions
for the applicant
[12] For
the applicant, Mr Summers put forward four propositions: there was primary evidence of antisocial
behaviour; the making of an order must be "necessary"; the standard of proof is that of a balance of
probabilities; the hearsay evidence
presented was provided in sufficient time to allow the respondent to have a
fair trial and was competently admitted and have sufficient weight to be
acceptable.
[13] Dealing
with the first of these submissions; the respondent herself had admitted that
there was dealing by "a" person from the premises and had admitted that there
were significant numbers of persons attending to buy drugs. She said there were between 8 and 10 persons
there. There was also acceptable hearsay
evidence of disturbing and threatening behaviour on the part of those attending
the premises. In addition there is also
the evidence from PC Kenhard himself.
It was clear that the respondent was trying to distance herself from the
behaviour taking place at the premises.
At one point in her evidence she suggested that she was not at the
premises for much of the time, but was out shopping or visiting.
[14] In
relation to the question of "necessity". Mr Summers referred to the Application by the Superintendent of Fife Constabulary
2005 S.L.T. (Sh.Ct.) 2. In determining
what was meant by "necessity" it was clear that "desirable" is not enough, nor
is "good". On the other hand, the court
should not demand of the responsible agency steps which were extraordinary in
order to prevent relevant harm. If
reasonable steps were taken short of the order then that will satisfy the test
of necessity. PC Kenhard had given
evidence of what had been done and, in particular, the visits to the respondent
and attempts to reason with her.
Something radical needs to be done and that indeed was the policy of the
legislation. In this case evidence of
the steps taken before the application are relevant to deciding what is
necessary. The court should take a
pragmatic view. If some reasonable steps have been taken and nothing has
happened, that pointed strongly to the necessity for the Order. Mr Summers then referred in some detail
to the case of R (Cleary) v Highbury Corner Magistrates Court [2007] 1 WLR 1272. At this stage I think it
is sufficient to note that Cleary
dealt with the application of the 2003 Act and, in particular, matters such as
the use of hearsay evidence; how the
court should deal with such applications;
the use of anonymous statements and the power to adjourn. In this case the bundle of documents relied
upon by the applicant had been given to the solicitor for the respondent on 14 September 2007. It was Mr Summers' understanding that
the devolution issue had been raised because of concerns about whether there
was sufficient time to allow the respondent's solicitors to deal with the
material they were given.
Mr Summers did not dispute that the adjournment of the matter
within the statutory timetable was both correct and competent and indeed should
have been done in order to give the respondent's agents time to look at the
material relied upon by the applicant.
On the subject of hearsay evidence, Scottish and English procedure
differed. Mr Summers made reference
to the Civil Evidence (Scotland) Act 1988 ("the
1988 Act"). The rule against hearsay was
abolished by section 2 of that Act.
In his view it is clear that the proceedings are civil (R (McCann) v Crown Court at Manchester [2003] 1 AC 787. What has been tendered are "statements"
within the meaning of section 2(1)(b) of the 1988 Act. (The respondent accepted that the witness
statements fell within the definition of "statement".) Mr Summers then referred to the
Magistrates' Courts (Hearsay Evidence in Civil Proceedings) Rules 1999 which
were referred to in Cleary. Those rules require that 21 days before
the date fixed for a hearing the party intending to adduce hearsay evidence
should lodge a notice to that effect.
Mr Summers accepted that part of Cleary (para [30]) in which May L.J. commented that what can best
be described as anonymous hearsay risks real injustice. The witnesses may say they do not wish to
identify themselves for fear of reprisals without, in many cases, being at all
specific about the reasons for their fear.
Although Mr Summers accepted that general proposition, he sought to
distinguish it in this case. There was
evidence from the police officer as to the basis for the fear. The concerns which the court had in Cleary, particularly at para [31], had
been properly addressed in this case. There was nothing in the material disclosed
which suggested there was anything to support the respondent's position.
[15] Mr Summers
then referred to the case of R (Turner) v
Highbury Corner Magistrates Court
[2006] 1 WLR 220 and, in particular, para [46] of the judgment of Keene L.J.
which dealt with the question of adjournment.
[16] In
relation to the question of hearsay, in Mr Summers' submission the case
did not depend upon hearsay evidence, but hearsay is competent and the court
was invited to have regard to it. In
this case there were two major types:
witness statements; and computer records. PC Kenhard had given evidence himself as
to the taking of some of the statements.
The others had been agreed. In
relation to the computer records reference was made to the Scottish
Intelligence Database and the storm cards.
The evidence the police officer gave was hearsay in that respect.
[17] In
Mr Summers' submission the attack on hearsay is confined to questions of
weight. Mr Summers put forward five
factors to which regard could be had in weighing up hearsay. Firstly, was it practicable to adduce the
maker of the statement? In the case of storm cards, what was recorded was put
down by a variety of different officers.
It contains information recorded by a large number of persons
responsible for maintaining the database.
Secondly, is it a contemporaneous record? Thirdly, does it involve multiple hearsay? The more extended the chain the less reliable
it becomes. Fourthly, was there any
motive to misrepresent the evidence?
Fifthly, is the evidence an edited or collaborative body of
evidence? In other words, the more the
evidence is filtered the less reliable it becomes. The only redacting that had taken place was
the removal of names. There was no
material reason the court should not feel confident in attributing to it such
weight so as to find proved what the hearsay evidence relates to. Mr Summers did not say that the
timetable prescribed by the legislation was relevant to the assessment of the
weight of the evidence. The evidence had
been gathered over a period of time.
[18] Mr Summers
accepted that the onus in the case remains with the applicant. There may be an evidential onus conferred by
section 30(5), but that was all.
Mr Summers went on to say there was, to some extent, an onus on the
court. The procedure in this case was
similar to petition procedure. The
matter fell within the court's "administrative" jurisdiction. The onus did not rest on the parties.
[19] There
was nothing in the way in which the evidence was produced which would give
cause for concern. It was up to the
respondent to lead some evidence or to elicit by cross-examination something
which may be unsound about the evidence led.
[20] Mr Summers
had been unable to find any authority dealing with the question of the anonymity
of witnesses. This was not a case in
which the respondent had sought disclosure.
The respondent could have gone to neighbours to ask them for their
views. There was a genuine need to
protect the witnesses from reprisal. In
relation to the computer evidence, that was covered by section 2 of the
1988 Act and there was no challenge taken to it by the respondent. The guidance note prepared by the Scottish
Executive on the subject of Closure Notices said that the standard of proof is
to the civil standard. Mr Summers
referred again to the case of McCann
at para [37].
[21] Mr Summers
submitted that the standard of proof was the civil standard of the balance of
probabilities. In that respect he
referred to Chief Constable of Merseyside
Police v Harrison [2007] QB 79. Being removed from a house was not
the same as a criminal sanction. The
occupier may have done nothing wrong. It
was no different from an action of ejection.
There was also the right of the community to live in peace. It was very different from the grant of an
Antisocial Behaviour Order. I should
therefore grant the application.
Submissions
for the respondent
[22] Mr
Leighton did not dispute much of Mr Summers' general propositions. In his submission there were three principal
issues: (1) the standard of proof; (2) anonymised hearsay; and (3) whether the proceedings were truly
adversarial.
[23] Dealing
with the third matter first, in Mr Leighton's submission the respondent's
rights pursuant to Articles 6 and 8 and Article 1 of the First
Protocol of the Convention are engaged.
(Mr Summers conceded the application of Articles 6 and 8 but
not the First Protocol.) The procedure
was adversarial. There is an onus on the
applicants. The court could only be
"satisfied" on the evidence of the applicant.
Section 30(5) was nothing more than a power to allow a
postponement. Only if there is
sufficient material placed before the court need the respondent reply to it. The onus remains upon the applicant.
[24] In
relation to the standard of proof, in Mr Leighton's submission, the
criminal standard applies and to the extent that the English authorities
determined otherwise they were, in his submission, not correct. Mr Leighton referred again to the case
of McCann and the speeches of
Lord Steyn and Lord Hope of Craighead, quoted at para [9] of Harrison. In this case the allegations are of criminal
conduct, regardless of who actually commits the offences, which is a factor
which points to a heightened standard.
In Harrison the court
compared an Antisocial Behaviour Order and a Closure Order. However, with an Antisocial Behaviour Order a
person could change their behaviour, but in the case of a Closure Order the person
could lose their right of residence regardless of their own behaviour. Mr Leighton then went on to refer to the
case of Constanda v M 1997 SC 217
which, in his submission, was binding and, in particular, the Opinion of the
Lord President at page 224. He did
not dispute that the proceedings concerning the Closure Order are civil
proceedings, but either the criminal standard should be applied or a heightened
civil standard. He referred to the case
of R (N) v Mental Health Tribunal [2006] QB 468 at p.497.
[25] In
relation to anonymous evidence Mr Leighton referred to the Civil Evidence
Act 1995 and in particular sections 2, 3 and 4. The Act obviously applies only to England, but it sets out
a series of safeguards concerning the use of hearsay evidence, which were
explored in the case of Cleary. There are no such safeguards in Scotland. The court, in effect, has no discretion to
refuse to admit hearsay. (T v T
2000 S.L.T. 337). A hearsay statement is
thus admissible and the only issue is one of weight. Mr Leighton then referred to similar
issues in criminal procedure in the case of Nulty
v HMA 2003 S.C.C.R. 378. The court should attach no weight to the
hearsay evidence. Not only is it hearsay
but it is also anonymous hearsay. There
may be cases where anonymous hearsay evidence can be used, but this was not one
of them. Mr Leighton referred to
the case of McShane v The United Kingdom E.C.H.R. 22 May
2002 at para.104. Anonymous evidence has
been used in Parole Board cases and in that regard Mr Leighton referred to
Birrell, Petitioner 2007 S.L.T. 440
and Sim v The Parole Board [2004] 1 QB 1288
The matter was even stronger in this case because it is a question of
the proof of facts and not just an assessment for the risk. The allegations of relevant harm are
allegations which are fundamental to the applicant's case. The anonymous hearsay is the only evidence
which seems to support the relevant harm test.
The anonymous hearsay evidence is really nothing more than a generalised
fear of reprisal. There would have to be
cogent and compelling reasons to rely upon it, such as naming individuals from
whom threats might emanate. There has to
be some foundation for the fear.
Specification of the fear was not adequate in this case. Mr Leighton referred to Cleary at para [30] which highlighted
some of the difficulties concerning anonymous hearsay evidence. Section 4 of the Civil Evidence Act 1995
set out a number of considerations which are relevant to the weighing of
hearsay evidence. There is no Scottish
equivalent. Section 4(2)(c) and
4(2)(d) of the English legislation was particularly apposite here. The respondent cannot challenge the maker of
the statement if the respondent does not know who they are. So far as the computer evidence is concerned,
the best evidence is of course the evidence of the maker of the statement or
the officer to whom the matter was reported.
The degree of hearsay is, to some extent, reflected in the coding. There was therefore really no weight which
should be attached to anonymous hearsay evidence. The factors in Nulty and in section 4(2) are relevant here.
[26] So
far as the statutory test in section 30 of the 2004 Act is concerned,
section 30(2)(a) makes reference to antisocial behaviour. Mr Leighton accepted there was evidence
of drug dealing and drug taking, but that in its terms would not amount to
antisocial behaviour as it is defined in section 143. Anonymous hearsay evidence can support that
there has been antisocial behaviour but the anonymous hearsay evidence could
not of itself satisfy the conditions and in particular
section 30(2)(b). There was no
compelling evidence to support a suggestion that there was an occurrence of
relevant harm. In relation to
"necessity", like Mr Summers, Mr Leighton accepted that it was a high
test but he also accepted that there was no requirement that extraordinary
measures be taken. He accepted that past
behaviour can be a guide to future behaviour, but it is only a guide. The court ought not to be "satisfied" as to
the conditions set out in section 30(2)(a) and (b). So far as necessity is concerned, looking to
the future, there is no evidence of any disturbance after Carr left. There has been no evidence that this
behaviour has happened again. The court
has a discretion as to whether to make the Closure Order. Only if it was proved to a criminal standard
that there was antisocial behaviour should the respondent be deprived of her
protection. The respondent was settled
in her accommodation. She was under the
care of a community psychiatric nurse.
She had methadone. The evidence
from the doctor might only cover her for a period of 28 days. If I was against the respondent then the
Order should allow her an opportunity to remove her personal effects.
[27] Both counsel
were agreed that there are no questions of any common or mutual access
rights. Both submitted that I should
certify the matter as suitable for the instruction of junior counsel. It was agreed that regardless of the outcome,
there should be a finding of no expenses due to or by either party.
Decision
[28] In
my opinion the appropriate way to decide this matter is to consider the
statutory tests set out in section 30 of the 2004 Act. Only if the conditions are satisfied can an
order be made. I will also make
reference to certain procedural matters.
[29] Section
30(2)(a) and (b) are both matters which require that there be evidence before
the court in order to reach such a conclusion.
Both therefore involve questions of onus and standard of proof. (See Harrison at para [7] per
Maurice Kay LJ). There is no dispute between the parties that it is the
applicant who carries the onus. Whatever
section 30 (5) may be intended to achieve it does not have the effect of
shifting the legal onus of establishing the conditions for a grant of a closure
order from the applicant to the respondent.
Section 30(2) (c) however is more a matter of judgement. Mr Summers suggested at one point that it was
a matter for the court to reach a conclusion on the material before it,
exercising an administrative function akin to petition procedure. Mr Leighton disputed that and on this point I
am of the view that Mr Leighton is correct.
Proceedings are adversarial and involve a judicial process.
[30] Parties
sharply disagree as to the standard of proof to be applied. Mr Summers says it is the civil standard of
proof (the balance of probabilities) whereas Mr Leighton says it is the
criminal standard of proof (beyond reasonable doubt) or a heightened civil
standard of proof. There is nothing in
the statute in itself which prescribes which standard should apply. I find the English authorities to which I was
referred on this issue to be helpful and in particular the case of Harrison. The conclusion in that case was that the
ordinary civil standard applied to similar English legislation. The House of Lords held in McCann that breach of an antisocial
behaviour order attracted the criminal standard of proof. That was distinguished from a closure order
in the case of Harrison. The penalties are different and the
proceedings are more similar to an application for a possession order. Notwithstanding
Mr Leighton's careful argument, I
respectfully agree with the conclusion of the court in Harrison and with the reasoning stated therein. I think Constanda concerned a different issue. In my view, the standard of
proof is a balance of probabilities. I
see nothing in section 30 (2) (a) and (b) which would lead me to any other
conclusion. There was a discussion in
the case of Harrison to reports in
Hansard. Mr Summers said he had
endeavoured to check the Parliamentary debates in the Scottish Parliament that
had been unable to find anything of relevance.
I express no view as to whether, had there been such material, it would
have been appropriate for me to have regard thereto. That the behaviour here has, at its root, an
allegation of drug dealing does not matter; it is not just the drug dealing
that is the issue but the conduct which goes with it and the behaviour and its
consequences for the neighbourhood. The
order is directed to the closure of premises.
I do not consider that there is anything which militates against the
ordinary standard of proof being applicable.
[31] The next question is the use of
hearsay evidence and, in particular, anonymous hearsay evidence. The effect of section 2 of the 1988 Act is
that hearsay evidence is admissible and, it would seem, the court has no
discretion as to its admissibility (T v T).
The Scottish provisions stand in stark contrast to their English equivalent
which not only prescribe a mechanism for dealing with hearsay evidence but also
provide factors to which the court should have regard when deciding what weight
to attach to such evidence. Parliament
saw fit not to make any such provision in Scotland. As Mr Leighton pointed out the provisions in
the criminal law are somewhat different (section
259 Criminal Procedure(Scotland) Act 1995; Nulty v HMA 2003 SCCR 378). Clearly, the main areas of difficulty here
concern the witness statements and the computer records. Looking at the material before me as a whole,
although I accept that there is the evidence of PC Kenhard and the respondent,
the hearsay material is of some importance. The English statutory provisions
contain matters which I can see might be of some attraction in evaluating the
value of hearsay evidence. In my view, given that Parliament has not prescribed
any tests for evaluating hearsay evidence nor made procedure governing its use,
I do not think that I should attempt to do so.
Section 30 requires the court to be "satisfied" as to certain
issues set out in subsection (2). It can
only be satisfied if there are facts relevant to the establishment of such
issues before it. What the facts are
will depend from case to case. It will
be easier for a court to be satisfied where there is direct evidence of a fact
for the simple reason that the court can make an assessment as to whether a
fact happened or did not from the direct evidence. The more removed the evidence as to the fact,
the more difficult it is to be satisfied as to its occurrence. In this context at least, "weight"
is another way of describing a judgement made about certain admissible evidence
and the extent to which if, at all, such evidence helps establish the existence
of the conditions in subsection (2). In
making that judgement one looks at the evidence itself and how it was gathered. In my view, the fact that the evidence has
been anonymised is a factor in determining weight. The issue of such evidence was dealt with in
some detail by May LJ in Cleary. The
report suggests that the use of such evidence is an issue in England. I confine my
remarks to the present case. I accept PC Kenhard's evidence when he said that
some of the persons attending the premises had a reputation for violence and
that some of the witnesses were genuinely fearful for their own safety and
their property. That is why their
evidence was given in the way it was.
[32] The
hearsay evidence is part of a body of evidence.
I do not intend to set out all the details. PC Kenhard is the local community
officer. He knows the area and he does
know a number of the residents. He has
been into the premises and has seen drug materials there. He has spoken to the respondent personally
about events at the premises. He
personally dealt with the overdose of a young person in the vicinity of the
premises. PC Kenhard described the
process by which he took the witness statements which included reading back to
the witnesses the content of their statements.
He knew of the two drugs raids and he was also aware of the continuation
of the behaviour at the premises after the respondent and Carr returned
thereto. The interviews with the police contain relevant information. Mr
Summers was correct when he said that there was direct evidence which PC
Kenhard could give as to what he personally knew. Although it is true to say that the witnesses
in the witness statements are not named, they are identifiable as a class of
persons, and be that local residents or community wardens. The material in the statements all clearly
describes conduct that, on any view, would satisfy the conditions in section
30. Should I discard this information
just because it is anonymous hearsay? I
say "discard" because that is the practical effect of attaching no
weight to it. I do not think the mere
fact that the statements are produced in this way means I should attach no
weight to them. There is an explanation
for why they come in the form they do and that comes from PC Kenhard. Secondly, the witnesses all complain of
similar behaviour. Whereas it could be
untrue, in my judgement, it is unlikely.
If there was no substance in it then it would follow that the witnesses
(including the community officers) have all conspired to present a totally
false picture of events and that I regard as unlikely. The information has been recorded by an
experienced police officer who did not doubt the accuracy of what was
said. Importantly, the material in the
witness statements fits with the other material in the case. The information contained in the police
computer records a catalogue of behaviour concerning the premises. I do not accept that all of that is a
fabrication. I accept that PC Kenhard
obtained the information from the computer and that he personally did not
record the information in the first place.
However, the sheer volume of the material presents a consistent pattern
of behaviour extending over a lengthy period of time. It should also not be
forgotten that the respondent herself admitted that there were some callers to
the house and that drugs were being sold.
The fact of not one, but two, drugs raids at the premises was not
disputed, nor was the fact that both Carr and the respondent were interviewed
by the police. It is not surprising that,
in short, both blamed the other for the sale of drugs but I do not detect from
the interviews that either disputed that drugs paraphernalia was found. I consider there is some significance to
these raids. Not only does it help
establish the existence of a conduct complained of but it goes some way to
supporting PC Kenhard's view that little deters the respondent from her
behaviour. It is only after the closure notice was served that Carr appears to
have left the premises. So far as
Appendix E (emails concerning councillors) and Appendix F (summary concerning
121 Elgin Drive, Glenrothes) I attach little, if any, weight to Appendix E as
it does not seem to me to add a great deal to the material and I attach only
slightly more in relation to Appendix F. Appendix F is background information.
It could be said that the main issue then was the relationship between the
respondent and her partner. I do not
believe the respondent when she says that Carr was only present at the premises
for a limited time nor do I believe her when she says that she was out of the
house for large parts of the day during which some of the behaviour might have
occurred. It seems to me that she was
simply not telling the truth. Her evidence was in direct conflict with much of
the other material before me. I did not find her to be credible and reliable.
[33] My
conclusion is that there has been antisocial behaviour going on at the
premises. Exactly who is responsible
does not greatly matter although that is not to say that I find the respondent
blameless: all the section requires is that "a" person has engaged in
antisocial behaviour. I am also
satisfied that the behaviour falls within the definition of antisocial
behaviour set out in section 143 of the 2004 Act. Likewise the use of the premises is
associated with the occurrence of "relevant harm". I say that because of the matters I have
referred to. It is not just the sale of the drugs themselves which causes such
a significant nuisance to those in the vicinity but it is the behaviour which
goes with it and in particular the stream of persons attending the premises and
their behaviour both before and after attending.
[34] That
brings me to the provisions of section 30 (2) (c) and the question of
"necessity". I have referred
to the interpretation of this word in an earlier judgement to which reference
was made before me (Application by
Superintendent of Fife Constabulary).
Parties were largely in agreement as to what it should mean here. As Maurice Kay LJ said in Harrison, the legislation
was brought into being in response to a serious social problem which cannot be
resolved simply by the enforcement of the criminal law against individuals
committing criminal offences (para
[14]). His Lordship also went on to say
that the enforcement of such orders made lead to the displacement of vulnerable
persons (at para [21]) and that may
invoke the application of Article 8 of the Convention. However, the displacement is one of the
consequences of the legislation. On the
facts of this case, I have held that the conditions set out in section 30 (2)
(a) and (b) are satisfied. What is more,
I am of the view that the evidence supports the conclusion that this has been a
problem that has persisted for some time notwithstanding visits from the police
and housing officers and two raids by the police. It would seem that the only respite given to
residents has been when either or both the respondent and Carr were in custody
or in the days following the issue of the closure notice. I accept that Carr has gone; I do not know
whether she will return. I do not accept
the respondent's evidence that all she wants to do is live in peace. She appears to have shown little inclination
to do so thus far. I accept she does
have some medical issues, including the consumption of methadone. I say some
medical issues because I am some more doubtful as to the extent of her general condition.
There was no supporting medical evidence although there may have been
difficulties in securing such evidence in time. I should say that the issue of methadone was
one reason why I was initially not minded to grant the order without giving the
respondent an opportunity to be heard.
However, there is material before me to say that her prescription for
methadone will be addressed elsewhere and that she will be given alternative
accommodation by or on behalf of Fife Council should the order be made. Although there may be some hardship to her in
the light of my conclusions, and having regard to the provisions of section
30(3), I am of the opinion that the making of an order is necessary.
[35] Two
major procedural issues arose in the course of proceedings. Although they are separate they are, to some
extent, interrelated and arise because of the timetable set by the legislation.
Section 30(4) provides that, subject to subsection (5), the sheriff shall
determine the application no later than the second day after the day on which
the application is made. Subsection (5)
allows the court to postpone determination of the application for a period of
not more than 14 days to allow, in this case, the respondent to show cause why
the closure order should not be made.
This is a very demanding timetable especially when, as here, there are
disputed matters. It was not disputed
that the making of a closure order, in this case, engages the rights of the
respondent pursuant to Articles 6 and 8 of the Convention. Initially, one of the major concerns of the
agents for the respondent was that they had little time within which to prepare
for the hearing. I was told the
devolution Minute was lodged principally because of such difficulties. The same
kind of issues have arisen in England on similarly
worded English provisions. I have the
benefit of the judgements in the cases of
Cleary, Turner and Harrison. Obviously some of the dicta in these cases
relate to English procedure but it seems to me that the issues of principle are
largely the same in both jurisdictions.
There was also a measure of agreement between the parties in the case
before me. In my view, the position is
as follows. The court should pay due
regard to the timetable prescribed by the legislation. The legislature must have been aware of the
competing interests of those affected by the behaviour and those affected by
the grant of a closure order. Having
said that, the court has a general power to adjourn proceedings and if the
interests of justice dictate that there is a need to adjourn then it is
competent for the court to grant such an adjournment, even if that is outwith
the statutory timetable. I acknowledge
that the English authorities concerned certain powers conferred upon
magistrates courts to adjourn proceedings but I do not think that it matters
whether the power to adjourn is one conferred by statute or one conferred by
the common law. I anticipate that, as
here, the power to adjourn will only be exercised when Convention rights are
engaged and the respondent can say why the interests of justice dictate that
such an adjournment should be granted.
That leads me to another point raised before me and that is the
disclosure of material by the applicant (see the case of Cleary). In the present
case, the material was made available to the respondent's agents at the first
calling of the case. The need to ensure a fair trial will almost inevitably
require early and full disclosure to those who may wish to oppose its grant. It
was not argued that, on the facts of this case, there could not be a fair
hearing. However, there is a balance between
the statutory timetable and the interests of the respondent to have legal
representation and to know the case against her. Evidence was given by witnesses in this
case. I did find the giving of evidence to
be helpful in deciding this case. There is no special procedure prescribed for
the early resolution of these cases in Scotland. It is difficult to see how the
usual procedure in which answers are lodged can fit within the statutory
timetable. I assume matters are left to the powers generally available to the
sheriff in dealing with summary applications.
[36]
I was invited to make a decision
in this matter on the date when it last called before me. I did not consider that in the interests of
justice I could or should do so. I had
been given the benefit of full argument by both parties with an extensive
citation of authority. There appears to
be no Scottish authority on the issues raised before me. The power to adjourn outwith the statutory
timetable should the interests of
justice so require extends to time for the court to consider the matter before
issuing a decision. That was agreed by
both parties. I shall make a closure
order relating to the premises and that shall be for a period of three months.
I have decided upon three months because of the persistent nature of this
problem and the history of it set out in the material before me. There are no common rights of access or the
like for others to be considered. I
shall reserve rights of access to the heritable proprietors (Fife Council) for
the usual rights of maintenance. I shall
also reserve to the respondent an opportunity to remove her personal
belongings. I shall also order
intimation of this interlocutor. I shall
certify the cause is suitable for the instruction of junior counsel to whom I
am much obliged for their assistance in this matter. There will be a finding no expenses due to or
by either party.
