SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW

B1538/08

JUDGMENT BY SHERIFF JOHN BECKETT

in the cause

GLASGOW CITY COUNCIL, a Local

Authority constituted under Section 2 of the

Local Government Etc (Scotland) Act 1994 and

having its principal office at City Chambers,

George Square Glasgow, G2 1DU

PURSUERS

against

DEAN FERGUSON, residing atFlat2/3,789

Dumbarton Road, Whiteinch, Glasgow,

G11 6NA

DEFENDER

For the Pursuers - Mr McDonald, Solicitor

For the Defenders - Miss Anderson , Solicitor

GLASGOW 22 MAY 2009,

The Sheriff, having resumed consideration of the cause makes an antisocial behaviour order for a period of six months from today's date expiring at midnight on 21 November 2009, to prohibit the Defender, Dean Ferguson, date of birth 10.2.1984, from -

a)     shouting, swearing, arguing, fighting, playing or causing to be played at excessive volume any radio, television, record player, compact disc player, tape recorder, musical instrument or other sound producing device within the dwelling house at 2/3 789 Dumbarton Road, Glasgow or in the common parts of the building at 789 Dumbarton Road, Glasgow in such a manner that would cause or be likely to cause alarm or distress to any persons there.

b)     slamming doors, striking floors, windows and walls, making or causing to make loud noises within the dwelling house at 2/3 789 Dumbarton Road, Glasgow or within the common parts of the building at 789 Dumbarton Road, Glasgow in such a manner that would cause or be likely to cause alarm or distress to any persons within the building at 789 Dumbarton Road.

c)     shouting at, swearing at, threatening by word, threatening by gesture, assaulting or attempting to assault John Bradley of 3/3 Dumbarton Road, Glasgow, G11 6NA in such a manner that would cause or be likely to cause alarm or distress.

d)     permitting any person visiting him at 2/3 789 Dumbarton Road, Glasgow to shout, swear, argue, fight, play or cause to be played at excessive volume any radio, television, record player, compact disc player, tape recorder, musical instrument or other sound producing device within the dwelling house at 2/3 789 Dumbarton Road, Glasgow or in the common parts of the building at 789 Dumbarton Road, Glasgow in such a manner that would cause or be likely to cause alarm or distress to any persons there.

e)     permitting any person visiting him at 2/3 Dumbarton Road, Glasgow to slam doors, strike floors, windows and walls, make or cause to be made loud noises within the dwelling house at 2/3 789 Dumbarton Road, Glasgow or within the common parts of the building at 789 Dumbarton Road, Glasgow in such a manner that would cause or be likely to cause alarm or distress to any persons within the building at 789 Dumbarton Road.

FINDS IN FACT

1. The Pursuers are Glasgow City Council, a local authority constituted under Section 2 of the Local Government Etc (Scotland) Act 1994 and having its principal office at City Chambers, George Square, Glasgow, G2 1DU

2. The Defender is Dean Ferguson who resides at flat 2/3, 789 Dumbarton Road, Whiteinch, Glasgow, G11 6NA. He has resided there since 2005 and was residing there in 2007 and 2008. He has a tenancy agreement which is a Scottish secure tenancy and his landlords are Whiteinch and Scotstoun Housing Association.

3. The Defender is twenty five years old with a date of birth of 10.2.1984.

4. The Pursuers have consulted with the Chief Constable of Strathclyde Police who supports this application.

5. Records kept by Strathclyde Police indicate that between 8 April 2007 and 12 July 2008, twenty six calls were received by Strathclyde Police regarding complaints of noise and disorder emanating from the Defender's home at flat 2/3, 789 Dumbarton Road, Glasgow. These complaints were made by four different complainers. On twelve of these occasions police officers spoke to and warned the Defender about noise.

6. On 12 July 2007 from 2100 hours onwards the noise of loud beat music emanated from the Defender's flat. At 2330 a neighbour at flat 3/3 789 Dumbarton Road, John Bradley, knocked at the door of the Defender's flat to complain but received no answer. Mr Bradley telephoned the police at about 0030. The police attended, warned the Defender, and the music was stopped. After the police left, the music became loud again.

7. On 27 July 2007 at about 0200 a complaint was made to Glasgow City Council Community Safety Service ( which will be referred to hereafter as GCCCSS) by John Bradley as a result of which Avril Ward and her colleague Derek Irvine, both noise enforcement officers, attended at 789 Dumbarton Road shortly afterwards. From the street the noise of loud music could be heard emanating from the Defender's flat and a number of people could be seen leaning out of the open window. From within Mr Bradley's flat, the noise of the music from the Defender's flat was excessive, alarming and distressing. With the assistance of the police, a noise warning notice (Pursuers' number 1 of process) in terms of section 5 of the Antisocial Behaviour (Scotland) Act was issued to the Defender personally at 0255.

8. On 27 July 2007 at around 2230 Avril Ward received a complaint from John Bradley as a result of which she and Mr Irvine attended at 789 Dumbarton Road at 2245. Loud dance music could be heard emanating from the Defender's flat from fifty metres away in the street, and because of the number of people present within it, police assistance was summoned. The music was loud enough to disturb sleep in neighbouring properties. A noise warning notice was issued personally to the Defender at 2320 (Pursuers' number 2 of process) and he was warned that his music playing equipment could be seized by the police. Police officers decided to seize the Defender's music playing equipment and did so. As a result of this incident, the Defender was charged by the police with a contravention of the Civic Government (Scotland) Act 1982 section 54. He was not prosecuted.

9. On this occasion the Defender had lost control of himself though consumption of alcohol and he was unable to control the behaviour of the people in his flat.

10. On 11 Aug 2007 at about 0330 a number of visitors arrived at the Defender's flat making sufficient noise to waken John Bradley in flat 3/3. At 0530 the sounds of music, shouting, shrieking and banging of doors emanated from the Defender's flat disturbing Mr Bradley. Music continued to be played until 1500.

11. On 28 August 2007 the Defender was interviewed by Grant Arthur, community relations team manager, of GCCCSS about incidents in July which had involved the 'noise team' attending at his address. At this interview, the Defender admitted that there had been problems at his home and he admitted to the incident in July when his equipment had been seized and to previous incidents of noise disturbance. He agreed not to allow visitors to his flat to behave in an antisocial manner or to play loud music. He said that he had no addiction issues. He would not agree to commit to an acceptable behaviour contract, indicating that there would be no further problems.

12. Mr Arthur sent a letter dated 3 September 2007 (Pursuers' number 4 of process) to the Defender in which a warning was issued, described in the letter as a final written warning, to the effect that further behaviour of this nature would not be tolerated; it may impact on the security of his tenancy; and 'ASBO' proceedings may be raised.

13. On 29 September 2007, John Gilligan who lived in a flat on the ground floor at 789 Dumbarton Road telephoned the police at about 1835 after music which was being played in the Defender's flat, and which had been going on for some time, became intolerably noisy. The police attended at the common stair at about 2100 but after they left, he was disturbed again when the music started up again a few hours later and got louder when he heard people arriving to visit the Defender. Mr Gilligan had reported noise from the Defender's flat to the housing association previously.

14. On 22 November 2007 at around midnight, loud music emanated from the Defender's flat and the police warned him about the playing of loud music.

15. On 20 January 2008 loud bass music, banging and the noise of people coming and going emanated from the Defender's flat as a result of which John Gilligan complained to the police.

16. On 14 February 2008 the Defender was interviewed about excessive noise emanating from his flat at premises of Whiteinch and Scotstoun Housing Association by Marlene MacNeil (assistant community relations officer for GCCCSS), her colleague Elaine Dick and Maureen Slowey of the housing association. The Defender acknowledged that he had been warned on two or three occasion by the police since his interview in August 2007. He did not accept that the police had been called seven times and that he had been warned on five occasions. He said he did not need help but indicated that there would be no further incidents causing disturbance. He was warned about his conduct.

17. Following that meeting a letter (Pursuers' number 5 of process) dated 15 February 2008 and signed by Marlene MacNeil was posted to the Defender warning him about his conduct. It bore a heading 'anti social behaviour - final warning.'

18. During the day on 13 April 2008 John Gilligan heard loud booming bass music from the Defender's flat. He was annoyed by the noise and made a complaint to the police at 1421.

19. On 24 April 2008 at around 0240 police officers attended in response to a complaint about the noise of loud music, shouting and banging doors emanating from the Defender's flat and at 0250 John Bradley heard music and shouting begin again.

20. On 24 April 2008, at or around 0300 , the Defender attended at the door to Mr Bradley's flat, banged on it and shouted that he was going to kill Mr Bradley. The Defender then returned to his flat.

21. On 25 April 2008 the Defender was interviewed by Elaine Dick, Marlene McNeil and Maureen Slowey. He said that he had suffered a bereavement relating to a close friend and that he had consequently been drinking alcohol to a problematic extent. He explained that he would get friends around and drink as a way of coping with his loss. He recalled being warned by the police on 13 April when he acknowledged that there had been a loud level of noise, but he denied any knowledge of any disturbance on 12 April 2008. In relation to 24 April 2008 he acknowledged that he was warned by the police but he denied that he had approached any of the residents in the close.

22. At this meeting the Defender was given a 'termination of tenancy' form and he was told that he could sign it or take it away to consider it, but he was also told that unless he signed the form, antisocial behaviour order proceedings would be commenced against him.

23. The Defender's friend had died in January 2006.

24. On 29 June 2008 at 0500, loud music emanated from the Defender's flat. Mr Bradley telephoned Graham Hood, a community relations officer with GCCCSS. The noise of loud music, shouting and cheering could be heard coming from the Defender's flat, suggesting that more than one person was present. The noise was very loud for the time of day and loud enough to stop someone sleeping. The noise eventually subsided when a number of people left in a number of taxis at 0550.

25. There were other occasions which the witnesses were not able to specify between April 2007 and June 2008 when the Defender and visitors to his flat disturbed Mr Bradley and Mr Gilligan at night and in the early hours of the morning by making excessive noise, shouting, banging, ringing intercom buzzers, knocking on windows, banging on doors and playing music at excessive volume.

26. Both Mr Gilligan and Mr Bradley found that their quality of life was adversely affected by the noise which intruded into their homes and was sufficient to wake them at night.

27. In June 2008 the Defender received service of the application for an antisocial behaviour order.

28. An interim antisocial behaviour order was granted at Glasgow Sheriff Court on 4 July 2008.

29. In May 2008 the Defender began to meet with Ann Morgan of Addaction, an organisation which assists people with alcohol problems which threaten their tenancy. He was discharged from her service in November 2008 after he had made good progress, improved his physical appearance and his demeanour and, after a period of abstinence, had controlled his drinking. He was referred to and participated in skills and training programmes.

30. The Defender was frank with Ann Morgan and accepted that his behaviour had caused problems for his neighbours and real disturbance. He accepted that he had been playing loud music, drinking to excess and that people had been coming up to his flat over whom he had no control. By November 2008 he was reporting having stopped playing loud music and being able to exercise control over who came to his house.

31. John Bradley was alarmed and distressed by the Defender's conduct and John Gilligan was distressed by it. The Defender's conduct was likely to cause alarm and distress.

32. The consequence of the making of an application for an antisocial behaviour order and the granting of an interim antisocial behaviour order has been a considerable improvement in the quality of life enjoyed by John Bradley and John Gilligan within their respective homes at 789 Dumbarton Road, Glasgow.

FINDS IN FACT AND LAW

Between April 2007 and June 2008 the Defender engaged in antisocial behaviour towards relevant persons.

FINDS IN LAW

It is necessary to make an antisocial behaviour order for the purpose of protecting relevant persons from further antisocial behaviour by the Defender.

NOTE

Introduction

1. The Pursuers in this summary application, Glasgow City Council, seek an antisocial behaviour order against the Defender on account of his alleged behaviour towards his neighbours in the common stair at 789 Dumbarton Road, Glasgow.

2. The proof proceeded on a Record which was produced by the Pursuers' agent at the commencement of the hearing and which is contained in the papers.

3. The Defender admits some of what is alleged by way of past conduct, but also disputes part of what is averred.

The evidence

4. The Pursuers led evidence from Inspector James Haddow, John Bradley, John Gilligan, Grant Arthur, Avril Ward, Graham Hood, James Calderwood, Marlene McNeill, and Elaine Dick. The Defender adduced Ann Morgan and gave evidence himself.

5. Inspector James Haddow of Strathclyde Police spoke to a number of documentary productions. He had written the letter, to GCCCSS, which was Pursuers' number 7 of process. He explained that the information in it was derived from two computerised data sources utilised by the police, the 'Storm' system on which details of all complaints from members of the public are stored and 'Crime Management' on which is kept details of all cases where the police have reported a matter to the Procurator Fiscal.

6. He had communicated in his letter that between 8 April 2007 and 12 July 2008 the police had made twenty six calls about complaints of noise and disorder at the Defender's address. He was able to say that records indicated that complaints had been made by four different complainers. The Defender had been spoken to and warned on twelve occasions. In relation to the other fourteen occasions, a possible explanation was that if police officers arrived in the early hours of the morning and heard no noise, they would not disturb the Defender if his house was in darkness. Inspector Haddow was not able to say from the record on how many occasions the police had actually heard noise.

7. He explained that Pursuers' number 8 of process, a synopsis of crime and incident reports, was compiled by police 'engine room' staff from the 'Storm' and 'Crime Management' systems.

8. John Bradley, aged 59, gave evidence that he has lived at flat 3/3, 789 Dumbarton Road, Glasgow for about twenty years. His flat is situated on the third floor, directly above the Defender's flat. He explained that the Defender had moved in to flat 2/3 in approximately 2005. He knew him. He had had cause to complain about the Defender's conduct to the housing association on numerous occasions. He had lived most of his life in tenement flats and he had never had to complain about a neighbour before he had done so in relation to the Defender.

9. He spoke to Pursuers' numbers 16, 17 and 18 of process which were complaint forms completed by him in relations to occasions when he had been disturbed by the Defender. He stressed that these were not the only complaints he had made. He had made numerous other verbal complaints about the disturbance caused to him by the Defender.

10. Item number 16 contained complaints which he had made on 17 July 2007 about loud music commencing on 12 July at about 2100. The police had been called at about 0030 on 13 July 2007. The police attended, but after they left, the music was turned up again. On 17 July 2007 at about 0100, the doorbell from the street had rung incessantly and there had been shouting from the back court and shouting and constant slamming of doors from the Defender's flat.

11. Item number 17 was a complaint about events commencing at 0330 on 11 August 2007. A group of people had arrived at that time and there had been shouting, shrieking and banging of doors until 0530.

12. Item number 18 was a complaint made on 24 April 2008 about events commencing at 0240 when the police attended in response to a complaint made by someone other than Mr Bradley about loud music, shouting and banging doors. The police had returned at 0250 in response to a complaint by Mr Bradley as the music had started up again. At 0300 Mr Bradley had heard banging on his front door and the Defender shouting ' Ah'm gonnae kill you' before running down to his flat. The male voice sounded like the Defender and he had heard the sound of the person running back to the Defender's flat. He acknowledged that there may have been other males about that night but said that whilst it was possible it was someone other than the Defender, that was extremely unlikely.

13. On a previous occasion Mr Bradley had spoken to the Defender who had said that Mr Bradley was trying to persecute him and get him evicted. He had heard the Defender shout and screaming sufficiently often that he was able to recognise his voice.

14. There had frequently been noise at night when people would bang at the door and ring various buzzers to try to get in. He would hear the Defender open his window and shout down on such occasions.

15. Whilst he was used to the noise of music, television and people shouting as a feature of tenement life, the noise from the Defender had been unreasonably loud. When there were visitors there would be an inexplicable amount of slamming of doors and the noise of people shouting at each other.

16. Mr Bradley, who required to get up at 0600 to go to work as a civil servant, found that the disturbance to his sleep was affecting his health, although he was not asked to expand on that.

17. His last complaint had been made on 24 April 2008. Since then the Defender's flat had been so quiet that he thought that it must have been empty for substantial periods. There had been nothing of note since July 2008 when the interim order had been granted. His quality of life had improved very much since then. It was put to him in cross-examination that Elaine Dick had been in his home in December 2008 and he said that there had been an occasion when she had been in his flat and had regarded the noise from downstairs as outrageous. I am of the view that Mr Bradley had forgotten when he gave evidence about the incident witnessed by Mr Hood on 29 June 2008. He was not asked about that.

18. John Gilligan who lived on the ground floor at 789 Dumbarton Road explained that he had complained to the police on three or four occasions about the loud noise of bass music coming from two floors above him from the Defender's flat. He had been slow to complain as he hoped that someone else would take the initiative, and he now regarded his failure to complain earlier as cowardice on his part. Mr Bradley had eventually come and spoken to him, but by this stage Mr Gilligan had already complained to the housing association.

19. On 29 September 2007, John Gilligan telephoned the police from his home at about 1835 after the music from the Defender's flat, which had been going on for some time, became intolerably noisy. The police came at about 2100 but after they left, the music started up again a few hours later and got louder when he heard people arriving. He had reported noise to the housing association previously.

20. On 20 Jan 2008 Mr Gilligan complained to the police on account of the loud bass music, banging and the noise of people coming and going which emanated from the Defender's flat.

21. On 13 April 2008 John Gilligan heard loud booming bass music from the Defender's flat and which had been continuing since the previous night as a result of which he made a complaint to the police at 1421.

22. Mr Gilligan would frequently get woken up at night by the sound of people pressing all the buzzers on the common entry system and people would knock on his bedroom window and his daughter's bedroom window. People would crash the door in or be let in and then he and his daughter would hear banging in the Defender's flat. The banging in the flat would frequently start when the music started up and he could make out that it was coming from the same flat. The police had on one occasion heard the noise from his flat and had said that he was not being over-sensitive, this was noise which he should not be hearing and which justified a complaint.

23. Since the interim 'ASBO' had been granted there had been little or no disturbance. In cross-examination he indicated that the improvement may have come earlier, perhaps in May 2008 or when the 'community relations people' got involved, but he was not sure.

24. Grant Arthur, a community relations officer with GCCCSS, arranged an interview with the Defender on 28 August 2007 after the Housing Association had sought his assistance for the problem with the appellant which had been going on for some time. The Defender had admitted that there had been problems and previous incidents of noise disturbance and he admitted what had happened in July. He declined an acceptable behaviour contract as he said that this would not be necessary. He would get a job and there would be no further problems.

25. Mr Arthur had written to the Defender on 3 September 2007 confirming what had been discussed, Pursuers' number 4 of process.

26. Avril Ward and her colleague Derek Irvine, both noise enforcement officers, attended at 789 Dumbarton Road at about 0200 on 27 July 2007 after a complaint was made to GCCCSS by John Bradley. From the street the noise of loud music could be heard emanating from the Defender's flat and a number of people could be seen hanging out of the open window. From within Mr Bradley's flat, the noise of the music from the Defender's flat was excessive, alarming and distressing. With the assistance of the police, a noise warning notice (Pursuers' number 1 of process) in terms of section 5 of the Antisocial Behaviour (Scotland) Act 2004 was issued to the Defender personally at 0255.

27. Avril Ward received a further complaint from John Bradley on 27 July 2007 at around 2230 as a result of which she and Mr Irvine attended at 789 Dumbarton Road at 2245. Loud dance music could be heard emanating from the Defender's flat from fifty metres away in the street, and because of the number of people present within it, police assistance was summoned. The music was loud enough to disturb sleep in neighbouring properties. A noise warning notice was issued personally to the Defender at 2320 and he was warned that his music playing equipment could be seized by the police. Police officers decided to seize the Defender's music playing equipment and did so. As a result of this incident, the Defender was charged by the police with a contravention of the Civic Government (Scotland) Act 1982 section 54. He was not prosecuted.

28. On both of these occasions Ms Ward had obtained police assistance because of the numbers of people who seemed to be in the Defender's flat.

29. Graham Hood, a community relations officer with GCCCSS, explained that on 29 June 2008 at 0500 he was telephoned by John Bradley. When he attended at 789 Dumbarton Road, the noise of loud music, shouting and cheering could be heard coming from the Defender's flat, suggesting that more than one person was present. The noise was very loud for the time of day and loud enough to stop someone sleeping. The noise eventually subsided when a number of people left in a number of taxis at 0550.

30. James Calderwood, a housing manager with Whiteinch and Scotstoun Housing Association, spoke to Pursuers' number 9 of process which was a letter which he had written and sent to the Pursuers. Its contents accurately reflected information which was held in his records about complaints which had been made about the Defender's conduct. He spoke to Pursuers' numbers 14, 15, 16, 17 and 18 of process. He indicated that there had been consistent complaints about noise, loud music, parties and people coming and going disturbing residents. He explained that whilst his association was responsible for nine hundred and fifty tenancies, this was the first occasion on which it had sought an antisocial behaviour order. Since the interim order had been granted, there had been fewer complaints and in the last six months there had been no complaints.

31. Mr Calderwood explained that the Defender has a Scottish secure tenancy. He will not have a right to buy his home until 2012. If an antisocial behaviour order were granted, his tenancy would be converted to a Scottish short tenancy. Whilst it would be possible to evict him more easily, that was not the intention of his association unless there were ongoing problems. The intention is to help and support the Defender to manage his tenancy and to convert his tenancy back to a Scottish secure tenancy.

32. Marlene McNeil, an assistant community relations officer for GCCCSS, had investigated complaints which had been made about the Defender. She reviewed the available information and decided along with colleagues that they would work with the housing association to try to resolve the antisocial behaviour. The Defender attended for interview on 14 February 2008. The Defender, whilst acknowledging that he had been warned by the police and that they had been called on a number of occasions, did not accept that he had been warned five times. He had said that there would be no further incidents. He was issued with a written warning - Pursuers' production 5 on 15 February 2008, the letter being headed 'Anti social behaviour - final warning.'

33. Ms McNeil had also been present at the interview on 25 April 2008. The Defender had denied knowledge of the incident on 12 April 2008 but had accepted that he had been warned by the police about loud noise on 13 April. In relation to 24 April, she indicated that he acknowledged that he had been warned by the police and that there had been a volume of noise, but he denied that he had approached any resident in the close. In cross-examination she was not sure if he had actually accepted that there had been noise on that occasion.

34. At this meeting, the Defender explained for the first time that he had bereavement issues in his family and in relation to a close friend and he confirmed that he was seeking the assistance of an addiction worker. He was told that there were two options; he could terminate his tenancy voluntarily or an application could be made for an antisocial behaviour order.

35. This witness spoke to Pursuers' numbers 21, 22 and 23 of process each of which was a list of incidents from police records of occasions when the police had been called out to the Defender's address and had warned him.

36. Item 21 disclosed that there had been nine calls to this location[ the Defender's address] by the police between 18.9.2007 and 7.2.2008 and the Defender had been warned on 29.9.2007; 19.11.2007; 22.11.2007; 13.1.2008; 20.1.2008 about playing loud music. The police had called at the address on 6.2.2008 at 0143 in response to a report of a disturbance at the Defender's flat involving screaming, shouting and banging doors.

37. Item 22 disclosed that there had been six calls to this location by the police between 28.1.2008 and 27.3.2008 about noise nuisance. The most recent involved a call at 0158 on 27.2.2008 about the door being slammed. Despite a number of attendances by the police and noise team, the Defender had not been warned about these incidents.

38. Item 23 disclosed that there had been six calls to this location by the police between 1.3.2008 and 17.4.2008 about noise nuisance. On 12.4.008 at 0435, a call was made complaining that the Defender was playing loud music and banging but when the police had arrived all was quiet and there was no reply to any buzzers in the close. At 1327 a call was made about seven persons within the close kicking doors, fighting and causing a general disturbance. The Defender was warned by the police. On 13 April 2008 at 1421 the playing of loud music in the Defender's flat was reported. The police warned the Defender and the music was turned down.

39. Ms McNeil explained that she had written to the Defender on 12 April 2008 issuing a formal warning.

40. Elaine Dick, a community relations officer with GCCCSS gave evidence and explained that she took over this case on 24 April 2008 and she interviewed the Defender on 25 April. By this stage, in the light of the previous warnings, there were only two options, a termination of the tenancy or an antisocial behaviour order and this was explained to the Defender. The Defender was given a blank termination of tenancy form to take away. He explained that he had suffered two bereavements, his friend and his father, and he had alcohol issues. He offered as an explanation for what had been going on at his home that he would have friends around as a comfort following his bereavements.

41. He said that he was not aware of the incident on 12 April; he acknowledged having been warned about loud music on 13 April and that on 24 April he had received a police warning.

42. Ms Dick spoke to Pursuers' number 24 of process, a list of three incidents from police records in relation to 24 April at 0228, 0258 and 0331 when the police had been called out to the Defender's address. This had been put to the Defender and he had denied making any threat.

43. She spoke also to Pursuers' number 6 of process, a letter dated 17 June 2008 in which Strathclyde Police had indicated that an antisocial behaviour order was merited in the Defender's case. She agreed that there had been no incidents since 25 April 2008.

44. She had attended at Mr Bradley's home on 12 July 2008 in response to a complaint of slamming doors and whilst she had heard some slamming of doors from the Defender's flat, she did not consider the noise excessive.

45. Ann Morgan of 'Addaction', an organisation which assists people with alcohol problems which threaten their tenancy, was called for the Defender and explained that in May 2008 the Defender began to meet with her. He was discharged from her service in November 2008 after he had made good progress, improved his physical appearance and his demeanour and, after a period of abstinence, controlled his drinking. He had been referred to and participated in skills and training programmes.

46. The Defender was frank with Ann Morgan and accepted that his behaviour had caused problems for his neighbours and real disturbance. He accepted that he had been playing loud music, drinking to excess and that people were coming up his flat over whom he had no control. By November 2008 he was reporting having stopped playing loud music and exercised control over who came to his house. She spoke to Defender's numbers of process 1 (a report which she prepared in October 2008)), 2 (a report she prepared in November 2008) and 3 (a leaflet explaining the work of Addaction).

47. Ann Morgan explained that she had been led to believe by the Defender that the death of his close friend had occurred in the twelve months prior to his referral. Since the referral was in April 2008, this timeframe would extend back to April 2007.

48. The Defender gave evidence. He is 25 and unemployed. He had lived at his flat at 2/3, 789 Dumbarton Road for four years. He acknowledged that in 2007 and 2008 the police had come to his house on a number of occasions and warned him about the noise and he acknowledged that on occasion there had been noise which was not acceptable. He had met Mr Bradley once. He had not met Mr Gilligan and he denied that the noise from his flat could ever have been heard by Mr Gilligan. He maintained that he knew nothing of people buzzing Mr Gilligan's buzzer or going to his windows.

49. He maintained that he had not been making noise on 8 April 2007. He accepted that on 27 July 2007 his equipment had been seized and he acknowledged that on that occasion he had been 'out of order' and inconsiderate, that he was out of control of himself and the situation in the house and that there had been an extremely loud noise. He conceded that his behaviour was not acceptable and that it would have disturbed neighbours. He insisted that there were only four people in the house.

50. He did not accept that he had been warned on more than two or three occasions between September 2007 and February 2008.

51. He had no knowledge of incidents on 12 April 2008. On 13 April he had been warned by the police about his music being too loud but he did not think it had been.

52. In relation to 24 April, he recalled the police calling at his home. He had been asleep and had not left his flat and had not threatened the complainer and he could not have slept if any music had been loud. He was not aware that anyone had gone to Mr Bradley's flat.

53. He denied that noise had been coming from his home on 29 June 2008 and he said that he had been alone in his house and he had been aware of a noise coming from a party going on next door. He acknowledged that he had received intimation of the application for an antisocial behaviour order in June 2008.

54. He had been greatly assisted by Ann Morgan and after a period of abstinence, he is now able to control his consumption of alcohol. His friend had died in January 2006. His father had not died, but had disappeared in 2005 and had been away for two years.

55. He thought that complaints had been made even when his house was what he thought of as quiet.

56. He has been subject to the interim antisocial behaviour order since July 2008 and he is terrified to do anything in his house for fear of the consequences and he keeps his internal doors open to prevent the noise of them closing. He had been away from his home for two weeks in the summer of 2008. He is not at home now as often as he was.

57. In cross-examination, the Defender explained that he could not now recall the detail of all of the incidents and he accepted that his consumption of alcohol at the time was a reason for this. He accepted that his music had been too loud on a couple of occasions, but he maintained that that was not always the case when the police called.

58. In relation to the incident at 1327 on 12 April 2008, he denied that this had happened, he had not received this warning. He maintained that by that stage he was staying away from home as much as he could and not having friends around and that complaints were being made without justification.

59. He accepted that there may have been four or five occasions when loud music was coming from his house at inappropriate times.

60. In relation to Mr Bradley's complaint of 12 July 2007 (recorded in Pursuers' number 16 of process ) he was unable to say if this had happened. He knew nothing of the incident on 17 July 2007 recorded in the same document.

61. He denied that the events complained about by Mr Bradley on 11 August 2007 (in Pursuers' number 17 of process) had taken place.

62. His position was that Mr Gilligan had no basis for making any complaint about him and his explanation for Mr Gilligan's complaints was that Mr Bradley had influenced him to make complaints. He felt that Mr Bradley was overly insensitive to noise in some respects and that he had also invented things.

Submissions on the evidence

For the Pursuers

63. Mr McDonald submitted that some of the incidents had been admitted on record and in evidence by the Defender, and that even on the basis of what he had admitted, it had been established that there had been a course of conduct of antisocial behaviour, which was established beyond reasonable doubt if that standard was necessary. However, he invited me to find established a more extensive series of incidents spoken to in evidence and contained in documents which had featured in evidence.

64. In founding on the evidence of Mr Bradley and Mr Gilligan he suggested that neither was a malicious complainer and that their acceptance of radical improvement in the situation demonstrated that they were fair and objective witnesses who were credible and could be relied on in preference to the Defender. He founded also on the admissions of antisocial behaviour apparently made by the Defender to Ann Morgan and recorded in Defender's numbers 1 and 2 of process and other admissions which had featured in the evidence.

65. He submitted that these admissions added weight to the evidence on which he relied, as did the evidence contained in documents.

For the Defender

66. Whilst conceding that the contents of documents which had featured in evidence were admissible hearsay, Miss Anderson suggested that in relation to some of the findings in fact sought, the Pursuers had founded on the mere existence of a record in a document and suggested that I should be slow to find sufficient probative value in such evidence in these instances.

67. Whilst there will be cases where instances of conduct might be proved adequately by hearsay evidence contained in documents, as was recognised by Lord Steyn in R (McCann and others) v Crown Court of Manchester and Another 2003 1 AC 787 at paragraphs 35 and 37 (hereafter referred to as McCann), I have acceded to Miss Anderson's suggestion in this case and have declined to make findings in fact based on records alone of conduct actually occurring when it was contested by the Defender. Some of the entries founded on featured in the evidence only fleetingly, some featured incompletely and others were not spoken to at all.

68. In relation to any conflicts between the evidence of the Defender on the one hand and Mr Bradley and Mr Gilligan on the other, she submitted that I should prefer the evidence of the Defender. She was not able to offer any persuasive argument why I should do so generally, but made particular points about certain aspects of the evidence.

69. On the specific issue of what had taken place on 24 April 2008 Miss Anderson submitted that Mr Bradley had not seen the person who issued the threat and that voice recognition was not to be relied on where the evidence suggested that Mr Bradley and the Defender had spoken perhaps only once. I should prefer the Defender's straightforward evidence that he had a clear memory of this occasion and disputed that there had been noise and he disputed also that he had gone to Mr Bradley's door and issued a threat.

70. Miss Anderson suggested that there was a conflict in the manner in which Mr Bradley and Elaine Dick assessed the level of noise and what Mr Bradley had said about her views in relation to the incident on 12 July 2008. Mr Bradley had been asked about an occasion in December, but even if it was the same occasion, I do not consider this difference of opinion to undermine Mr Bradley's evidence as a whole. It is plain that on many occasions the Defender and visitors to his flat were making noise which was distressing for neighbours and was heard so to be by a variety of different witnesses.

71. She questioned whether it was credible that Mr Gilligan on the ground floor could hear noise such as banging doors from the second floor and she seemed to imply that Mr Gilligan may have been influenced to complain by Mr Bradley.

72. She suggested that Mr Hood must be mistaken in thinking that the noise heard by Mr Hood on 29 June 2008 in Mr Bradley's flat came from the Defender's flat. He had not heard noise from the street or when he had passed the Defender's flat on his way up to Mr Bradley's flat.

73. Miss Anderson indicated that the Defender accepted that there had been a handful of unacceptable incidents, although with the exception of 27 July 2007 he could not be clear of the dates, and she conceded that on the basis of this general acceptance there was sufficient to establish that there had been antisocial behaviour.

Resolution of disputes on credibility and reliability

74. I found Mr Bradley to be an impressive and credible witness whose evidence appeared prima facie to be reliable. The reliability of his evidence is strongly supported in several instances by records of contemporaneously made complaints. Other documents which featured in the evidence also supported the detail of his account. His candour in acknowledging the improvement in the situation over the last year or so only adds to the impression of his credibility.

75. I also found Mr Gilligan to be an impressive and credible witness. He gave his evidence in an understated manner, and was plainly willing to be tolerant of the playing of music and did not wish to complain until he felt truly compelled to do so by the extent of the problem. He was quite clear that he had made complaints before he had discussed matters with Mr Bradley, and he very candidly admitted that he now felt that he had been cowardly in not making complaints sooner than he did. The reliability of his evidence was also supported by contemporary documents.

76. I did not find the Defender to be an impressive witness. He was very vague in his recollection of events, and he eventually acknowledged that one reason for his lack of recollection of certain events may be his consumption of alcohol at the time of those events. I was entirely satisfied by the evidence which I accepted that the Defender's conduct had been worse and much more frequent than he was prepared to admit.

77. When the Defender disclosed during cross-examination that his friend had died in January 2006, and that there had not been a death in his family, his father had gone away for two years in 2005, it became apparent that he had not been entirely candid with Elaine Dick and Ann Morgan about the nature of the bereavements he had suffered and their timing. I felt that in his evidence he had sought to maintain a somewhat misleading impression.

78. So far as the incident of 24 April 2008 was concerned, I found the evidence of Mr Bradley to be straightforward and acceptable. Reasonably enough, he did not claim certainty in his identification. However, he was of the view that he recognised the voice which threatened him as being the Defender's. He had met him. He added that he was familiar with the Defender's voice as he had heard him shouting and screaming on a number of occasions. In addition to his recognition of the voice, the incident occurred after he had called the police to complain about noise from the Defender's flat and he had heard the sound of the person running down to the Defender's flat. The Defender denied in evidence that he had been the person and also denied that there had been any noise problem that night, but I preferred the evidence of Mr Bradley on this point and reject the Defender's denial.

79. When in cross-examination Miss Anderson challenged Graham Hood's ability to be sure where the noise had been coming from on 29 June 2008 in circumstances where he had not heard the music outside the stairway or within it prior to entering Mr Bradley's flat, he replied that he did not think that he was wrong and explained that he and his colleague Peter McKendry had put their ears to the floor and could hear that the noise was coming directly from below. He had, on his unchallenged evidence, spent a period of forty minutes in Mr Bradley's flat during which the music and other noise could be heard. I preferred his evidence and rejected the Defender's denial.

80. Mr Hood was quite clear in his evidence and it does not seem to me that his not having heard anything until he was in Mr Bradley's flat suggests that he was wrong about where the noise which he heard came from. A pause in the playing of music as he approached and then made his way up the stairway would offer one explanation for that state of affairs.

The legislation

81. The Antisocial Behaviour (Scotland) Act 2004 section 4 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), (9) .....

(10) An application for an antisocial behaviour order shall be made by summary application to the sheriff within whose sheriffdom the specified person is alleged to have engaged in antisocial behaviour.

(11) Before making an application under this section-

(a) a relevant authority shall consult the relevant consultees; .....

(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; .....

Section 18 provides;

"relevant authority" means-

(a)a local authority; or

(b)a registered social landlord;

"relevant consultees" means-

(a) in relation to an antisocial behaviour order sought or made on the application of a local authority-

(i) the chief constable of the police force for the area which includes the area of the authority;

ii) the chief constable of each police force for an area where there is an affected person;

(iii)each local authority in whose area there is an affected person; and

(iv) if the person in respect of whom the order is sought or made is a child, the Principal Reporter;

Section 143 provides inter alia;

(1) For the purposes of this Act (other than Parts 7 and 8), 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.

Submissions on the law

82. It was a matter of admission that the Defender is more then twelve years old and that the necessary consultation had taken place. Parties were agreed that I would require to determine on the appropriate standard of proof whether the defender has engaged in antisocial behaviour. Parties were agreed that the proper approach to the test of necessity in section 4 (2) (c) was that proposed by Lord Steyn in McCann in paragraph 37 of his opinion in relation to the analogous section 1(1) (b) of the Crime and Disorder Act 1998 and adopted by Sheriff Principal Bowen in Glasgow Housing Association v Sharkey 2005 SLT (Sh Ct) 59, that this does not involve a standard of proof but is an exercise of judgement or evaluation.

83. During the course of submissions, three contentious issues emerged.

i)                   the appropriate standard of proof to be applied in determining in terms of section 4 (2) (b) of the 2004 Act whether the Defender had engaged in antisocial behaviour towards a relevant person;

ii)                  whether the test of necessity was met in the particular circumstances of this case, section 4 (2) (c) of the 2004 Act;

iii)                whether, if an order was to be made, it ought to be imposed in the terms sought, there being a dispute as to the necessity of some of the prohibitions, section 4 (6) of the 2004 Act.

Standard of proof

84. Given the view which I have taken of the evidence in this case, I would have been satisfied beyond reasonable doubt that the Defender had engaged in antisocial behaviour. However, much of the dispute between parties related to the issue of which standard of proof fell to be applied in these proceedings and I was invited to rule on that question. Whilst this case has been at avizandum I have discovered that there have been significant recent discussions in the House of Lords on the issue of standard of proof in civil cases. I have considered whether it would be appropriate to fix a further hearing to allow parties to address me on these cases. In the particular circumstances of this case, where the result would be the same on either standard of proof, and where I conclude that I am bound by the decision in Mullan v Anderson 1993 SLT 835, I do not consider it necessary to delay matters further by adopting that course. I will refer to two decisions to which I was not referred by parties: In Re B (Children) (Care Proceedings: Standard of Proof) 2009 1 AC 11, and In Re D, 2008 1 WLR 1499. These cases have not changed the view which I had reached on the question of standard of proof, but they have strengthened it.

For the Pursuers

85. It was submitted by Mr McDonald for the Pursuers that this is a civil case under civil procedure and that the standard of proof is the balance of probabilities. Mr McDonald pointed out that section 4(10) of the 2004 Act provides for the application to be made by summary application.

86. Mr McDonald founded on the case of Mullan v Anderson 1993 SLT 835, a decision of a five judge court, as vouching the general applicability of the balance of probability as the standard of proof in civil cases irrespective of the seriousness of a defender's alleged conduct. Mullan involved an action for damages where the pursuer sought to prove that the defender had committed a murder of which he had been acquitted in criminal proceedings. Whilst he recognised that there were some exceptional circumstances where civil proceedings might fall to be determined by proof beyond reasonable doubt, for example actions for breach of interdict ( Gribben v Gribben 1976 SLT 266), he contended that such a situation was not a true analogy with an application for an antisocial behaviour order. If the Defender were at some point in the future to be accused of breach of an antisocial behaviour order, then there would be criminal proceedings in which proof beyond reasonable doubt and corroboration would be required.

87. He submitted that the case of McCann, whilst it might be persuasive, was not binding on me.

88. He drew my attention to the guidance notes issued by the Scottish Executive in 2004 as vouching the intention of the Scottish Parliament that this should be viewed as a civil process. At paragraphs 34-37 there is a suggestion that as a civil order, its granting would be decided on the civil standard of proof. However, the note mentions the case of McCann at paragraph 35 and at paragraph 37 queries whether the court may follow the approach taken in that case and apply a 'quasi-criminal standard.'

89. Whilst there is some authority to suggest that 'Explanatory Notes' may be of general relevance to statutory interpretation by explaining the context in which legislation was passed, these materials appear to me to be something different, comprising advice from the Executive which various persons (excluding courts) are bound to have regard to, section 16 of the 2004 Act. I do not treat them as offering any assistance in determining which standard of proof ought to be applied.

90. The Scottish Parliament could of course have put the matter beyond doubt by providing for a particular standard of proof to be applied, and given that it did not do so, the court is left to decide which standard of proof is applicable in a summary application of this sort.

For the Defender

91. Miss Anderson submitted that the seriousness of what was at stake for the Defender dictated that the criminal standard of proof should apply. She ultimately conceded that what she meant by this was that whilst I would require to apply the standard of proof of beyond reasonable doubt, corroboration would not be necessary.

92. That concession was appropriately made in my opinion. Whilst in cases of offences by a child being dealt with under both the Social Work (Scotland) Act 1968 and now the Children (Scotland Act) 1995 the courts have required corroboration as well as proof beyond reasonable doubt, that might be seen as a consequence of the history of the treatment of such cases and a general application of fairness, as explained by Lord Rodger in Constanda v M and Others 1997 SC 217. Miss Anderson recognised the effect of the Civil Evidence (Scotland) Act 1988 section 1(1) and the approach of the court in Byrne v Ross 1993 SLT 307 which determined that although the standard of proof for breach of interdict was proof beyond reasonable doubt, the requirement for corroboration did not apply.

93. In support of her contention about the appropriate standard of proof she founded on the opinion of Lord Hope of Craighead in the House of Lords in R (McCann and others) v Crown Court of Manchester and Another 2003 1 AC 787 , and the cases of Constanda and Inverness Council v Dewar, opinion of Sheriff Pyle, unreported, 13 June 2007. In relation to this last case, she recognised that there had been no argument before the Sheriff about the appropriate standard of proof and that he was not required to determine that issue and did not actually do so.

94. She expressed the view that I may be bound by the case of Mullan to conclude that the applicable standard was the balance of probabilities and that she may, if so advised, require to raise the matter in a higher court.

Discussion

95. Whilst Miss Anderson has founded on Constanda as supporting her position that the appropriate standard of proof in antisocial behaviour order proceedings is proof beyond reasonable doubt, I am not persuaded that what was decided in that case has such a general application.

96. In Constanda, under the guise of a ground of referral of exposure to moral danger, the reporter sought to prove only that the child had committed a crime. The Court required to bear in mind the terms of section 42(6) of the Social Work (Scotland) Act 1968 which required proof to the criminal standard for a section 32 (2) (g) condition of referral (commission of an offence by a child).

97. The court decided in the particular circumstances of that case that proof to the criminal standard was required for allegations that a child had engaged in criminal conduct although the condition of referral to a children's hearing was not that he had committed an offence, 32(2) (g) of the Social Work (Scotland) Act 1968, but that he was exposed to moral danger, a distinct condition of referral under section 32(2) (b).

98. The court had regard to the background of how offence by a child cases had traditionally been dealt with by the juvenile courts and the standard of proof which would apply if a child were prosecuted, as Lord Rodger of Earlsferry explained in his opinion. It also noted the terms of s 42(6) of the 1968 Act. Against that background the court, in the particular circumstances of that case, disapproved of what was in effect a procedural device calculated to subvert the intention of Parliament in relation to what was, in reality, no more than an offence by a child case.

99. In his opinion, Lord Rodger made it clear that the decision was reached only because the basis of the condition of referral of exposure to moral danger was an allegation of the commission of a sexual offence by the child, and nothing more. He went on to observe that proof of such an offence, to the civil standard, might be appropriate if the commission of the offence was but part of a set of facts which permitted the conclusion that a child was exposed to moral danger.

100. Accordingly, it appears that Constanda must be seen in its own specific statutory context. There is no provision equivalent to section 42(6) of the 1968 Act to be considered in relation to an application for an antisocial behaviour order under section 4 of the Antisocial Behaviour (Scotland) Act 2004. Mullan was not before the court in Constanda and there is nothing in Constanda to cast any doubt on the soundness of the decision in Mullan.

101. The conclusion reached by the House of Lords in the case of McCann that in relation to similar English legislation, Crime and Disorder Act 1998 section 1, the appropriate standard of proof which magistrates should apply is the criminal standard of proof, is of course at first sight highly persuasive.

102. However, in order to consider whether it is appropriate to take the same approach on the issue of standard of proof, it is necessary to examine why their Lordships reached the conclusion which they did.

103. That case involved allegations of serious criminal conduct including burglary and violent behaviour which underlay the application. Amongst the prohibitions sought was the restrictive condition that the defendants must not enter a particular area of Manchester. In these circumstances the Recorder of Manchester had , without intending to set a precedent, decided on appeal from the magistrates' court which had granted the order that it would be appropriate to apply the criminal standard in that particular case, the implication being that different standards may apply in different types of cases. That approach was endorsed in the Court of Appeal in the judgment of the court given by Lord Phillips of Worth Matravers MR who suggested that the criminal standard would be applicable in most cases. R (McCann and others) v Crown Court at Manchester 2001 1 WLR 1084, paragraphs 65, 67.

104. If there were some cases where the criminal standard would be appropriate and others where the civil standard would be appropriate, then in the present case the noise nuisance conduct might well come in to the latter category. The proposed prohibitions in the present case are also not particularly onerous. However, both parties were of the view in the present case, and I agree with them, that it would be unfortunate and might lead to considerable confusion and inconsistency if a different standard of proof fell to be applied in applications for an antisocial behaviour order depending on the circumstances of the case.

105. The decision of the Court of Appeal in McCann was endorsed and given a much more general application by the House of Lords.

106. In McCann, the court was concerned with section 1 of the Crime and Disorder Act 1998 which permits magistrates to grant antisocial behaviour orders on application by local authorities and the police. The issues in the case were whether in domestic law proceedings for the making of such an order were criminal in nature; whether such proceedings involve a 'criminal charge' under Article 6 of the European Convention on Human Rights; whether hearsay evidence would be admissible; and the appropriate standard of proof in such proceedings.

107. The House of Lords concluded that these were not criminal proceedings in domestic classification or under Article 6. Having reached that conclusion it followed that hearsay evidence would be admissible under the Civil Evidence Act 1995.

108. Miss Anderson founded on the opinion of Lord Hope of Craighead, but as well as examining what he said, it is appropriate to consider the leading opinion given by Lord Steyn, particularly paragraph 37:

37 Having concluded that the relevant proceedings are civil, in principle it follows that the standard of proof ordinarily applicable in civil proceedings, namely the balance of probabilities, should apply. However, I agree that, given the seriousness of matters involved, at least some reference to the heightened civil standard would usually be necessary: In re H (Minors)(Sexual Abuse: Standard of Proof)
[1996] AC 563, 586d-h , per Lord Nicholls of Birkenhead. For essentially practical reasons, the Recorder of Manchester decided to apply the criminal standard. The Court of Appeal said that would usually be the right course to adopt. Lord Bingham of Cornhill has observed that the heightened civil standard and the criminal standard are virtually indistinguishable. I do not disagree with any of these views. But in my view pragmatism dictates that the task of magistrates should be made more straightforward by ruling that they must in all cases under section 1 apply the criminal standard. If the House takes this view it will be sufficient for the magistrates, when applying section 1(1)(a) to be sure that the defendant has acted in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself. The inquiry under section 1(1)(b), namely that such an order is necessary to protect persons from further anti-social acts by him, does not involve a standard of proof: it is an exercise of judgment or evaluation. This approach should facilitate correct decision-making and should ensure consistency and predictability in this corner of the law. In coming to this conclusion I bear in mind that the use of hearsay evidence will often be of crucial importance. For my part, hearsay evidence depending on its logical probativeness is quite capable of satisfying the requirements of section 1(1).

109. In the case of In Re B (Children) (Care Proceedings: Standard of Proof) 2009 1 AC 11 Lord Hoffman suggested in paragraph 12 of his opinion that what Lord Steyn had said in McCann about a 'heightened civil standard' was an example of the confusion which had developed in relation to the standard of proof. Lord Hoffman appears to suggest that in McCann Lord Steyn misinterpreted the passage to which he referred from the judgment of Lord Nicholls of Birkenhead in the case of In Re H(Minors)

110. Lord Hoffman went on in paragraph 13 to suggest that there is only one civil standard of proof.

13 My Lords, I would invite your Lordships fully to approve these observations. I think that the time has come to say, once and for all, that there is only one civil standard of proof and that is proof that the fact in issue more probably occurred than not. I do not intend to disapprove any of the cases in what I have called the first category, but I agree with the observation of Lord Steyn in McCann's case, at p 812, that clarity would be greatly enhanced if the courts said simply that although the proceedings were civil, the nature of the particular issue involved made it appropriate to apply the criminal standard.

Lord Hoffman's invitation appears to have been accepted by Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe, paragraphs 18 and 19.

111. A similar point was made by Lord Carswell, with whom the other judges agreed, in the House of Lords in the case of In Re D, 2008 1 WLR 1499 at paragraph 23 of his opinion.

23 Much judicial time has been spent in the last 50 or 60 years in attempts to explain what is required by way of proof of facts for a court or tribunal to reach the proper conclusion. It is indisputable that only two standards are recognised by the common law, proof on the balance of probabilities and proof beyond reasonable doubt. The latter standard is that required by the criminal law and in such areas of dispute as contempt of court or disciplinary proceedings brought against members of a profession. The former is the general standard applicable to all other civil proceedings and means simply, as Lord Nicholls of Birkenhead said in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586, that "a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not".

112. At paragraph 55 in McCann, Lord Hope of Craighead observed that under section 19 of the Crime and Disorder Act 1998, proceedings in Scotland for an antisocial behaviour order were civil in nature.

113. In paragraph 82 he said

' I think that there are good reasons, in the interests of fairness, for applying the higher standard when allegations are made of criminal or quasi-criminal conduct which, if proved, would have serious consequences for the person against whom they are made.'

114. In paragraph 83, Lord Hope concluded that the criminal standard of proof should apply because the condition in section 1 (1) (a) of the 1998 Act, that the defendant has acted in an anti-social manner, raises serious questions of fact, and the implications for him of proving that he has acted in this way are serious.

115. Lords Hutton, Hobhouse of Woodborough and Scott of Foscote all agreed with Lords Steyn and Hope in McCann and had nothing to add on this point.

116. Despite his reference to In Re Minors 1996 AC 563, Lord Steyn spoke of a heightened standard of civil proof which seemed to suggest that there may be an intermediate standard of proof between the balance of probabilities and the criminal standard. It was, at least in part, the perceived difficulty in having magistrates apply this intermediate standard of proof which persuaded him that for pragmatic reasons, the appropriate standard of proof was the criminal standard which was virtually indistinguishable, and with which magistrates would be familiar.

117. It is now clear, that the current view in the House of Lords is that, as was said in In Re H(Minors), there is no heightened standard of civil proof and accordingly that part of the route by which Lord Steyn reached his conclusion is in this respect one which ought not be followed.

118. Further, the position in Scots law, which was clearly explained in Mullan, that there is no intermediate standard of proof in civil cases, presents a further obstacle to following Lord Steyn's route.

119. In Mullan, all of the judges reviewed the existing case law and were in agreement that there was no intermediate standard of proof in civil cases and that the applicable standard was the balance of probabilities. Lord Justice Clerk Ross 840 E, Lord Morison 842 A-F, Lord Prosser 846 J-847B, Lord Penrose 851 B-G and Lord Brand 851 H-I.

The Lord Justice Clerk said at 840E

....no difficulty should arise so far as standard of proof is concerned because in the civil action the standard of proof will be balance of probability. We were referred to a number of authorities bearing on this issue which I need not rehearse. Having regard to the nature of this action, I do not regard the matter as in doubt ...

Lord Morison said at 842 D-F, after reviewing certain authorities

.....In my view these authorities are plainly insufficient to displace the well established principle that in civil cases the standard of proof required of a pursuer is that he prove his case on a balance of probabilities, and the suggestion that there exists in Scotland some standard intermediate between a balance of probabilities and beyond reasonable doubt has expressly been rejected in Brown v Brown, 1972 SLT at p 145, Lamb v Lord Advocate, 1976 SLT at pp 153and 156, and B v Kennedy, 1987 SLT at p 768. My view that any civil case, including this one, must be determined on a balance of probabilities does not ignore the obvious fact that it is more difficult to prove, according to the required standard, an allegation of murder or serious crime, because it is inherently unlikely that a normal person will commit such a crime. Certain English authorities cited, including the similar case of Halford v Brookes, appear to have proceeded on the basis that this difficulty is to be reflected in a variation of the normal standard of proof, but in my view there is no justification in Scotland for that approach, and if it were applied it might well lead to uncertainty in any case where an allegation of serious criminal or immoral conduct was made...

120. The opinion of the judges in Mullan on this point was applied with approval by Lord Justice General Cullen in giving the opinion of the court in Napier v Scottish Ministers 2005 SC 307, paragraphs 20, 21. Reference was made to the opinion of Lord Morison in Mullan.

121. In Scotland, applications for antisocial behaviour orders are made to a Sheriff, a professional judge, who is familiar with both civil and criminal procedure and can understand and apply the law. Accordingly the pragmatic considerations which influenced Lord Steyn in McCann, in so far as they related to magistrates applying an unfamiliar standard of proof (the now disapproved of heightened civil standard), do not apply in Scotland.

122. In McCann, Lord Hope of Craighead did not refer to an intermediate standard of proof. He referred to paragraph 31 of the opinion of Lord Bingham of Cornhill in B v Chief Constable of Avon and Somerset Constabulary 2001 1 WLR 340. In that case, which related to an application for a sex offender order in terms of the Crime and Disorder Act 1998 section 2, Lord Bingham had said

30. It should however be clearly recognised as the justices did expressly recognise, that the civil standard of proof does not invariably mean a bare balance of probability, and does not so mean in the present case. The civil standard is a flexible standard to be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proving those matters; Bater v Bater 1951 P 35, Hornal v Neuberger Products Ltd 1957 1 QB 247, and R v Secretary of State fro the Home Department, Ex p Khawaja 1984 AC 74.

31. In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that, in deciding whether the condition in section section 2 (1) (a) is fulfilled, a magistrate's court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard. In deciding whether the condition in section section 2 (1) (b) is fulfilled, the magistrate's court should apply the civil standard with the strictness appropriate to the seriousness of the matters to be proved and the implications of proving them.

123. Lord Hope referred also to paragraph 90 of the opinion of Lord Phillips of Worth Matravers in Gough v Chief Constable of the Derbyshire Constabulary 2002 QB 1213.

89......We find that the proceedings that led to the imposition of banning orders were civil in character.

90. It does not follow from this that a mere balance of probabilities suffices to justify the making of an order. Banning orders under section 14(B) fall into the same category as antisocial behaviour orders and sex offender orders. While made in civil proceedings they impose serious restraints on freedoms that the citizen normally enjoys. While technically the civil standard of proof applies, that standard is flexible and must reflect the consequences that will follow if the case for a banning order is made out. This should lead the justices to apply an exacting standard of proof that will, in practice, be hard to distinguish from the criminal standard.....

124. The cases on which Lord Bingham had relied in paragraph 30 of his opinion in B were said by Lord Carswell at paragraphs 24-28 of In Re D, to have led to confusion. In In Re B, these passages were regarded by Baroness Hale of Richmond, at paragraphs 64 and 65, as having made the confusion worse and she pointed out that In Re H, had not been before the court in B v Chief Constable of Avon and Somerset Constabulary:

65 Indeed, later events made matters worse. In B v Chief Constable of the Avon and Somerset Constabulary [2001] 1 WLR 340 the issue was the standard of proof to be applied when finding the facts needed to make a sex offender order under section 2 of the Crime and Disorder Act 1998. The Court of Appeal held that these were civil proceedings, but Lord Bingham of Cornhill CJ said about the standard of proof, at paras 30-31:......

66 In re H [1996] AC 563 was neither referred to nor cited in that case, but of course the link could be made through the references to Hornal v Neuberger Products Ltd [1957] 1 QB 247. However, In re H was cited in R(McCann) v Crown Court at Manchester [2003] 1 AC 787. One issue was the standard of proof in finding the facts needed to make an anti-social behaviour order under section 1 of the Crime and Disorder Act 1998. Lord Steyn said, at para 37:...

125. It would seem then that the line of authority which influenced Lord Hope in McCann has now been departed from by the House of Lords, at least to an extent.

126. Setting aside for the moment consideration of the authority which influenced the court in McCann on the issue of standard of proof, it can be seen that in addition to Lord Steyn's pragmatic considerations, two other considerations influenced their Lordships: the fact that an antisocial behaviour order may involve a serious restriction of freedom of action and the fact that in many cases, the proof of the facts which will constitute the antisocial behaviour or course of conduct will involve the proof of criminal conduct.

127. Mullan is binding on me in so far as it determines that the fact that civil litigation may involve the pursuer seeking to prove the commission of a crime by the Defender does not, of itself, alter the standard of proof to be applied. It is the civil standard. The crime in Mullan was murder, and could not be more serious. This renders it problematic simply to follow the approach of their Lordships in McCann.

128. Whilst there are examples in Scots law of civil proceedings where the applicable standard of proof has been determined to be proof beyond reasonable doubt, (Walkers, Evidence, 3^rd Edition at paragraphs 4.3.3-4.3.4 and the cases there referred to; Stair Memorial Encyclopaedia, Volume 10 Evidence, paragraph 286), they are few and relate to special circumstances, and do not appear to me to justify the adoption of the criminal standard of proof in proceedings for the granting of an antisocial behaviour order.

129. In Scots law, the proof of facts which may give rise to a preventative restriction of freedom of action in actions of interdict is the civil standard. The standard of proof of beyond reasonable doubt would come in to play in an action for breach of interdict, just as it would if there were a prosecution for breach of an antisocial behaviour order, which is a criminal offence. Proof beyond reasonable doubt would apply in an action for breach of lawburrows, but not at the stage of its granting.

130. It would be consistent with that approach that the standard of proof to be applied in an application for an antisocial behaviour order should be the balance of probabilities.

131. Whilst the cases of In Re B and In Re D do not purport to overturn McCann, the decision in In Re D may tend to undermine the view that serious consequences of civil proceedings such as a restriction on freedom of action justifies the adoption of a higher standard of proof. The issue in that case was the effect of allegations of sexual abuse, in relation to which no criminal proceedings had been taken, on a life prisoner's application for parole. A tribunal had proceeded to find the allegations established on the balance of probabilities and whilst this was overturned in the Court of Appeal, the latter decision was reversed in the House of Lords. Accordingly, in a case which involved allegations of serious criminal conduct and a consequence which was more profound than a restriction of freedom of action, amounting to a continued deprivation of liberty, the civil standard of proof was applicable.

132. Whilst it may be attractive to have conformity in the standard of proof applied to similar legislation on both sides of the border, in addition to differences in the development of the common law, there are differences in the terms of the respective legislation which may have some relevance in determining whether the approach adopted in McCann should be followed, even if my analysis of their Lordships' reasoning is erroneous.

133. I have already noted that the application is made in civil proceedings in Scotland to a Sheriff whilst in England it is made in a somewhat anomalous civil application to the magistrates' court, Crime and Disorder Act 1998 section 1 (3) ; in Scotland the application is made only by a local authority or registered social landlord and not by the police which it may be in England, Crime and Disorder Act 1998 section 1 (1A);

in Scotland the order may be for any period, whilst in England it must be for a minimum of two years, Crime and Disorder Act 1998 section 1(7) ; in Scotland the court has a general discretion to vary or revoke an antisocial behaviour order , 2004 Act section 5 (1), whilst in England discharge within two years can only be granted with the consent of both parties, Crime and Disorder Act 1998 section 1 (8) and (9).

Decision on standard of proof

134. Having considered the authorities founded on, particularly Mullan and McCann, and the submissions of parties, I conclude that the appropriate standard of proof in an application for an antisocial behaviour order is the balance of probabilities. Whilst the case of McCann may be highly persuasive, it is based on reasoning inconsistent with Mullan by which I am bound. The application is made to the Sheriff in civil proceedings and I do not consider that I should treat it as an exception to the established principle that civil cases fall to be decided on the balance of probabilities.

135. I would have reached that conclusion even without considering what was said in the House of Lords in the recent cases to which I have referred. Whilst recognising that these cases do not overturn McCann or even necessarily indicate that their Lordships would now depart from the view expressed in McCann on the standard of proof in applications for antisocial behaviour orders, I find my views fortified by what was said in them.

136. I have separately considered the matter on the higher standard. Much of the evidence led by the Pursuers was undisputed. I did not find the Defender to be an impressive witness and where his evidence was in conflict with John Bradley, John Gilligan and Graham Hood, whose evidence I accepted, I preferred their evidence. The Defender made some general admissions in evidence to some instances of behaviour which was antisocial as he had done to various witnesses as specified in the findings in fact. The parole evidence relied on by the Pursuers was supported in many instances by contemporary records. The combined effect of the evidence which I accepted is cogent and I am left with no reasonable doubt in concluding that the Defender engaged in antisocial behaviour.

Necessity

For the Pursuers

137. It was submitted that it was necessary to make the order. It was submitted that necessity was a matter of judgement for the court. The necessity of making an order was vouched by the change in the Defender's behaviour from the course of conduct which had lasted until June 2008 and his exemplary behaviour thereafter, following on from the application being served on him. What had happened in the past was a valid basis for considering that to secure freedom for the Defender's neighbours from the antisocial behaviour he had previously engaged in, the order sought was necessary. The application for an antisocial behaviour order, and granting of an interim order, had offered an incentive to the Defender to behave like an acceptable neighbour. To make the order would keep that incentive in place. In any event, the proposed order was only requiring the Defender to refrain from doing things he should not be doing anyway and there was no great hardship to him in granting it.

For the Defender

138. Miss Anderson submitted that since the Defender had on any view caused no problems for his neighbours since June 2008 and if I accepted his evidence, since April 2008, it was not necessary to make an order now. The evidence showed that the Defender had sought support and addressed his problems. The consequence for the Defender in terms of the Housing (Scotland) Act 2001 that the granting of the order could involve a reduction in the security of the Defender's tenancy was a factor I should take in to account.

Discussion

139. The test is necessity and I do not think that it is a decisive factor in favour of the making of the order that it might not be especially intrusive for a good citizen, because the making of the order can never be less than necessary if the court applies the legislation. I am required to determine whether in the light of what has been proved by way of antisocial behaviour it is necessary to make an order to protect relevant persons from further antisocial behaviour, section 4 (2) (c) . This test appears to me to limit the weight which I can put on the fact that there is a potential for incidental consequences for the Defender's tenancy. Such a consequence was contemplated by the Scottish Parliament in enacting section 35 (2) of the Housing (Scotland) Act 2001 as amended by the 2004 Act. In any event, there was evidence on oath in this case from Mr Calderwood that whilst the housing association would take steps to convert the Defender's tenancy from a Scottish secure tenancy to a short Scottish secure tenancy if the antisocial behaviour order is granted, his association would support the Defender in managing his tenancy and it would not seek to terminate his tenancy unless there was a repetition of his antisocial behaviour. Mr Calderwood envisaged that if the Defender continues to behave well, his tenancy would be converted back to a Scottish secure tenancy.

140. The more interesting argument in the particular circumstances of this case where the conduct was not for the most part of the most serious nature, and where the last incident of antisocial behaviour occurred almost nine months prior to the proof, is whether an order is necessary now.

141. The approach of the Pursuers is to suggest that the acceptable conduct by the Defender since proceedings were raised and an interim order obtained vouches the necessity of making the order. The Defender submits that it can no longer be seen to be necessary.

142. Whilst I would not go so far as to describe the argument of the Defender on this point as hopeless, I do find the opinion of the Court of Appeal expressed by Lord Justice Simon Brown at paragraphs 18 and 19 of his opinion in S v Poole Borough Council [2002] EWHC 244 (Admin) persuasive. That was a case on which I heard submissions after I drew it to the attention of parties in the course of the hearing. In that case an antisocial behaviour order which was made in August 2000 was unsuccessfully appealed in March 2001 in relation to behaviour which had last occurred in March 2000.

18. Question iii strikes me as no less easily answered. Mr Gau suggests that the Crown Court, having found section 1(1)(a) proved, did not then go on to ask itself whether section 1(1)(b) also was proved, whether in short it was proved that an ASBO was necessary. His contention is that the Crown Court imposed the order, or rather upheld the order, by way of "punishment for historical behaviour". Mr Gau's argument in this regard I understand to be based essentially on the fact that the last incident of misbehaviour relied upon by the applicant authority occurred in March 2000, just before the application was made, and nothing had been alleged, let alone proved, against the appellant between then and 3rd August, when the district judge originally made the ASBO, let alone between then and the date of the Crown Court hearing some seven and a half months later.

19. With the best will in the world, that to my mind is a hopeless argument. It must be expected that, once an application of this sort is made, still more obviously once an ASBO has been made, its effect will be likely to deter future misconduct. That, indeed, is the justification for such orders in the first place. It would be a remarkable situation were a defendant, against whom an order has rightly been made, then able, on appeal to the Crown Court, to achieve its quashing because in the interim he has not disobeyed it; rather the very effectiveness of such an order would to my mind justify its continuance. The conduct on which the Magistrates' Court and in turn the Crown Court should concentrate on determining whether such an order is necessary is that which underlay the authority's application for the order in the first place. To my mind, indeed, it would have been surprising here had the Crown Court not been satisfied that this order was necessary and that its continuation was justified in the particular circumstances of this case.

143. No doubt all cases will turn on their own particular circumstances. There may well be cases where a change of circumstances over a period of time will be such that a court will conclude that it is not necessary to make an antisocial behaviour order even where extensive antisocial behaviour has been proved.

Decision on necessity

144. In this case, I note that the course of conduct endured over a period of many months in the face of numerous warnings by the police and despite assurances given by the Defender on more than one occasion that there would be no repetition of the conduct complained of. The conduct continued even after he had been charged by the police in July 2007 and issued with formal warnings thereafter by the housing association and GCCCSS. It is apparent that over an extensive period of time, the Defender was unable to control himself.

145. I also bear in mind that the Defender's period of out of control drinking was, according to the evidence which I heard, going on at a point in time fifteen to twenty-seven months after the death of his friend, and was not therefore closely associated with it in time, and that experience shows that it can be difficult for people who have had an alcohol problem to continue to keep it under control.

146. The change in the Defender's behaviour coincides with the threat of an antisocial behaviour order and then the granting of an interim order. He began to address his alcohol problems with the assistance of Ann Morgan in May 2008, shortly after he had been told that an application would be made.

147. Whilst the Defender has done well to have controlled his drinking and his behaviour since June 2008, I conclude that it was the potential consequences of an antisocial behaviour order being granted, and the consequences of a breach of the interim order which provided his primary motivation.

148. Whilst I recognise that the making of the order will have detrimental consequences for the Defender if he does not maintain his good behaviour which I take in to account, having regard to the nature and the frequency of his antisocial behaviour over a period of many months, and its effect on his neighbours, the granting of an antisocial behaviour order appears to me to be a proportionate and necessary measure.

149. The granting of an antisocial behaviour order offers necessary protection against the background of the history of what has gone on at 789 Dumbarton Road, Glasgow.

The terms of the order

For the Pursuers

150. It was submitted that the terms of the order sought did not require to be a perfect mirror image of what had gone before. The terms or the order sought encompassed the conduct which the Defender had engaged in, or permitted, and closely related conduct and conduct which might reasonably be anticipated to occur if he were to resume his previous antisocial conduct. If the order were required to be perfectly symmetrical with what had gone before there would be nothing to stop the Defender from disturbing his neighbours by turning up the volume on his television set. The terms of the proposed order are such that what would be prohibited was subject to the qualification 'in such a manner that would cause or be likely to cause alarm or distress' introduced a degree of objectivity which would protect the Defender from any over-sensitive or spurious complaint.

For the Defender

151. It was submitted that the conduct prohibited could only be precisely the same as that which had occurred in the past, otherwise the test for necessity could not be met. It was further submitted, that since there had for nine months been an interim order in place which had not been breached, it would be unnecessary, if granting an order, to make it as long as the one year sought.

Decision

152. The conduct which is prohibited is sufficiently similar to the antisocial conduct which has occurred in the past to give rise to necessary prohibition as craved. However, I do see some force in the Defender's point about the imposition of an interim order and I will take account of that by restricting the duration of the order which I am granting to a period of six months from today's date.

Expenses

153. The Pursuers have a crave for expenses but I was not addressed on it. The Sheriff Clerk will appoint a hearing at 0945 on at Glasgow Sheriff Court. If it is not the intention of the Pursuers to seek an award of expenses in the circumstances of this case, perhaps they would advise the Sheriff Clerk accordingly.