SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY

 

B1512/09

	JUDGMENT OF SHERIFF PRINCIPAL B A LOCKHART
	in the cause
	SOUTH LANARKSHIRE COUNCIL
	Pursuers and Respondents
	against
	MARTIN JOHN DOYLE
	Defender and Appellant

 

Act: S Munro, of Livingstone Brown, Solicitor, Glasgow

Alt: Mrs S Christie, South Lanarkshire Council

 

 

 

HAMILTON: 24 August 2011

 

The Sheriff Principal, having resumed consideration of the cause, refuses the appeal and adheres to the Sheriff's interlocutor of 15 June 2011 granting an interim Anti-social Behaviour Order; finds the defender and appellant liable to the pursuers and respondents in the expenses of the appeal; allows an account thereof to be given in and remits same when lodged to the Auditor of Court to tax and to report.

 

 

NOTE:

 

Background to the appeal

 

1.             This is an appeal at the instance of the defender and appellant against the Sheriff's decision to grant an interim antisocial behaviour order on 15 June 2011. This case has an extensive history. An interim antisocial behaviour order was granted on 2 December 2009 against the appellant. This was appealed to the Sheriff Principal. The appeal was refused on 21 January 2010. The respondents' agent became ill after two days of proof on 31 March 2010 and the diet was discharged. In due course a further five days proof was assigned commencing 18 August 2010. Because of the continuing illness of the respondents' agent that diet was discharged. A verbal motion was then made to recall the interim order and this was granted without opposition. Further proof dates were assigned for 17 to 21 January 2011. On joint motion these dates were discharged and proof again assigned for week commencing 7 March 2011. After some further evidence the parties advised that a formal settlement might be possible and the remaining days were discharged on 10 March 2011. On that date the respondents moved for the interim order to be re-imposed as further complaints had been received. That motion was continued until a procedural hearing on 18 April 2011. The Sheriff did not consider it proper to consider such a motion without the appellant having a full opportunity to know the allegations against him and to be allowed to answer these. These allegations were set out fully and answered when the motion came before the Sheriff on 15 June 2011. A closed record containing the new material dated 10 June 2011 was lodged. In addition a motion was lodged on behalf of the now appellant for the application to be dismissed due to delay and ancillary matters. Before the Sheriff it was agreed that before the latter motion could be granted, there would require to be inordinate and excusable delay which could cause risk of prejudice to the appellant. It appeared before the Sheriff the agent for the appellant was unaware of the full procedural history of the case. When this had been explained to the appellant's agent, the motion was then withdrawn. The hearing took place before the Sheriff only on the motion to grant a further interim order.

 

2.             It was accepted by the Sheriff that he required to look at the background of the present position before reaching his decision. The allegations both against the appellant as set out from pages 13 to 19 of the amended record and by the appellant as set out in pages 20 to 22 of the record, did not occur in a vacuum. The Sheriff properly stated in his note that both had to be considered against the background of previous difficulties. The Sheriff in his note records:

"I was of course aware that an interim antisocial behaviour order had been made previously and the defender had unsuccessfully appealed that order. That interim order was recalled by me on 12 August 2010, reflecting the delays in determining the application and that matters had calmed down since the interim order was granted. I also heard evidence from some witnesses but, in fairness to both parties, have not attached any weight to the evidence given. It would be improper to decide on the credibility and reliability of these witnesses before the evidence of both parties is concluded and submissions made. While it is correct that witnesses confirmed convictions for conduct against the defender, that was against a background of his behaviour to those witnesses. I therefore consider that I should disregard the evidence heard and deal with the matters based on the allegations and responses in the amended record. That would of course have been the position had the motion been made before another Sheriff.

As stated above, for the purpose of determining the defender's motion for absolvitor or dismissal, I had gone over the procedural history of the case for the benefit of Mr Thompson, this had the result that the history was also fresh in my mind. I therefore had regard to the allegations in the whole of the amended record, set against the procedural history of the case when determining whether to grant the motion for a further interim order.

Firstly I had to consider whether a prima facie case had been made out by the pursuers. That involved an exercise of my judgement in evaluating the allegations and responses. Both were considered by me. The fact that the allegations are denied by the defender was taken into account by me, as were the admissions of criminal conduct by some against the defender. However, as stated above, those convictions were set against allegations of prolonged conduct by the defender, which, if true, could provoke such a reaction.

Having considered the submissions and material from both parties, I was satisfied that the pursuers had averred a prima facie case that the defender had engaged in antisocial behaviour towards relevant persons.

I next considered whether a further interim order was necessary for the protection of relevant persons from further antisocial behaviour on the part of the defender. No voluntary undertaking was offered on this occasion. Having regard to the history of the case, and the nature of the allegations and the period covered by those allegations, such an undertaking would have been unlikely to have been accepted. I was not addressed on possible consequences for the defender if an interim order were to be granted. He had been subject to the previous interim order for about eight months and I was not told of any adverse consequences in that period. Conversely, I was told that, during that period, a time of comparative calm was enjoyed by the relevant persons.

The recall of that interim order allegedly resulted in "payback time" and resumption of previous behaviour. While some of the fresh allegations, e.g. "staring" might seem minor, these have to be viewed against the whole background and not in isolation. There is a further allegation of adverse behaviour towards the pursuer's investigating officer, reflecting a previous allegation in September 2009.

Against the whole background, I reach the view that the benefit of the interim order substantially outweighed potential implications for the defender."

 

3.             It is against that decision that the appellant now appeals.

 

Submissions for the defender and appellant

 

4.             Solicitor for the appellant went over the procedural history of the case which is outlined in paragraph 1 hereof. In particular he pointed out an interim Anti-social Behaviour Order had been in existence from 2 December 2009 until 12 August 2010. There had been no breach of that order. It was a matter of regret that the proof which had started in the March 2010 had only had four days of hearings at this date. It was explained to me that 12 days were available for evidence to be heard in this proof commencing on 31 August 2011.

 

5.             Solicitor for the appellant referred to the relevant statutory provisions and in particular to the Anti-social Behaviour etc (Scotland) Act 2004, sections 4, and 7. The relevant sections are in the following terms:

"4. Anti-social Behaviour Orders

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

(2)            These conditions are-

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

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

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

7. Interim Anti-social Behaviour Orders

(2) If the sheriff is satisfied-

(a) that the condition mentioned in paragraph (a) of section 4(2) is met;

(b) that prima facie the condition mentioned in paragraph (b) of that section is met;

(c) that the making of an interim anti-social behaviour order (an "interim order") is necessary for the purpose mentioned in paragraph (c) of that section,

The sheriff may make an interim order."

 

6.             It was accepted that condition (a) was satisfied. The issues for the Sheriff were (i) whether prima facie the specified person had engaged in anti-social behaviour towards a relevant person and (ii) whether the making of an interim anti-social behaviour order wais necessary for the purpose of protecting relevant persons from further anti-social behaviour by the specified person.

 

7.             Solicitor for the appellant referred to the decision of Sheriff Holligan in Glasgow Housing Association v O'Donnell 2004 Hous.L.R.78. As far as the question of whether the specified person had prima facie engaged in anti-social behaviour, Sheriff Holligan stated as paragraph 27:

"... It is a case of being satisfied that, assuming everything the pursuers say is true, it would amount to anti-social conduct ..."

He then considered the condition that an interim order was necessary for the purpose of protecting relevant persons from further anti-social behaviour. Sheriff Holligan stated at paragraph 30:

"The test is "necessity" not whether something is preferable or even desirable. It seems to me that the test of necessity is a high one."

Sheriff Principal Bowen commented on Sheriff Holligan's words in Glasgow Housing Association v Sharkey 2005 SLT (Sh Ct) 59 at paragraph 13. He said:

"The only question in relation to Sheriff Holligan's decision is accordingly whether the observation that the "test of necessity is a high one" should be given approval. If that observation was intended as a general guide to the approach of interpretation ... in my opinion it does go too far. The examination of what is "necessary" in any given set of circumstances is plainly a matter of fact to be decided in each individual case ... The inquiry does not involve a standard of proof of achievement of a particular level of "necessity"; it is simply an exercise of judgment or evaluation. The circumstances which require such evaluation will include the nature of the allegations made in support of the applications ...."

It was submitted that the court required to take all the circumstances into account in exercising its discretion in whether to grant an interim order. As is set out in Macphail, third edition, paragraph 18.111 the court had required to take into account all relevant consideration and not to leave out any relevant considerations.

 

8.             It was submitted that the respondents in this case had averred that the appellant had persisted in harassing a group of neighbours over a number of years. The appellant denied that. He claimed that certain neighbours had harassed him and engaged in criminal conduct towards him. I was referred to the closed record and to particular instances where it was said the appellant's averments were detailed and coloured (i) page 19 referred to an interdict against Robin Nicol (ii) an incident relied on by the respondents where the appellant was found not guilty in South Lanarkshire District Court in June 2009 (iii) incident on 18 August 2010 where a brick had been thrown through the appellant's window (iv) incident on 6 January 2011 on which the respondents relied. It was the appellant's position that he was assaulted by two neighbours and one of the individuals was being charged in Hamilton Sheriff Court (v) page 3 and 4 of the record detail averments about the conduct of Claire Graham, the daughter of Jeanette Graham and (vi) detailed averments about the conduct of John Barron in July 2009.

 

9.             It was submitted that a perusal of the closed record indicated a range of issues on which considerable detail had been provided by the appellant to establish the circumstances in which he alleged false allegations were being made against him.

 

10.         I was referred to pages 10 to 12 of the Sheriff's decision in which he set out the reasons in which he pronounced himself satisfied that the respondents had averred a prima facie case that the appellant had engaged in anti-social behaviour towards relevant persons. The Sheriff then pronounced himself satisfied that a further interim order was necessary for the protection of relevant persons. He concluded that the benefit of the interim order substantially outweighed potential implications for the appellant.

 

11.         It was submitted that the nine month order had not been breached. There had been detailed averments and supporting productions lodged on behalf of the appellant. These issues could not be excluded from the Sheriff's consideration. It was submitted that insufficient consideration had been given by the Sheriff to the averments and productions on behalf of the appellant.

 

12.         There were averments concerning criminal convictions of Robin Nicol, James Barron and Claire Graham. It was submitted the Sheriff effectively had placed that material to one side and balanced the negative aspects of such convictions with the suggestion that the appellant had provoked that behaviour.

 

13.         The Sheriff stated that he was not addressed at the hearing before him on the consequences of an order to the appellant. However this was set out in the closed record in answer 7 at page 24. It was alleged that any order would cause the appellant significant prejudice.

 

14.         It was also suggested that the Sheriff had failed to take into account material which had been placed before him in the evidence already led at the proof, in particular regarding convictions of James Barron and Claire Graham. The Sheriff had specifically stated that he was not taking into account evidence which he had heard. He fell to be criticised for that approach.

 

15.         Basically it was submitted that the Sheriff had approached the application from the perspective of the respondents. It was accepted that, if the respondents proved all their averments, they would be entitled to an Anti-social Behaviour Order. However the Sheriff required to take into account all the issues which were relevant. He had failed to take into account the detailed defences which had been lodged, the productions which had been lodged on behalf of the appellant and the material which had been led at the proof. In these circumstances I was invited to allow the appeal and recall the interim Anti-social Behaviour Order.

 

Submissions for respondents and pursuers

 

16.         Solicitor for the respondents referred to the Sheriff's decision. She submitted that he had set out all the relevant material which he had considered. There was no material which he had not considered which he ought to have considered. There was no material which he did consider which he ought not to have considered. In these circumstances I should not interfere with the exercise of the Sheriff's discretion.

 

17.         Solicitor for the respondents took me through the allegations following recall of the first interim order on 12 August 2010. These are set out in detail in pages 14 to 18 of the record. In particular it is averred that on 25 August 2010 witness Joyce Cunninghame heard the appellant saying in Harrington Road "every c...'s going to get it that's been involved with me". On 3 September 2010 Debra Duffy overheard the appellant saying "all the neighbours that gave evidence against me are going to get it, its payback time". There followed a list of instances of alleged anti-social behaviour, on the part of the appellant, namely on 28 November 2010, on two separate occasions between September and November 2010, on 5 October 2010, on 5 January 2011, on 6 January 2011, on 10 January 2011, on 11 January 2011, on 24 January 2011, on 29 January 2011, on 8 February 2011, on 9 March 2011, on 17 March 2011, on 26 March 2011, on 2 April 2011, on 4 April 2011, on 7 April 2011, on 8 April 2011, on 13 April 2011, on 30 April 2011 and on 27 May 2011. Most of these incidents were recorded in Strathclyde Police disclosure sheets which were produced. All these incidents were alleged to have occurred since the recall of the original interim order. It had been submitted to the Sheriff that that material, which is set out in full in the record, was sufficient to satisfy a prima facie case that the appellant had engaged in anti-social behaviour. It was clear that this was a continuous course of conduct by the appellant against neighbours and it was submitted that an interim order was necessary for the purpose of protecting relevant persons from further anti-social behaviour.

 

18.         It was the respondents' position that, in respect of the allegations of the anti-social behaviour, the role of the appellant was that of aggravator. He incited and provoked action. He sought to cause trouble and to provoke a reaction from the individuals that he targeted. Of particular significance were the incidents on 6 January 2011 involving the Cunninghame family, 8 April 2011 involving Ann McKenna aged 78 and 27 May 2011 where an anti-social investigator employed by the respondents was alleged to have been abused by the appellant. When the original interim order was in place, there was a period of relative calm. However, when the order was recalled, the type of conduct which was alleged to have taken place before the original order was made, which is set out at pages 5 to 13 of the record, started again. This demonstrated the necessity of having an order in place to avoid any recurrence of this behaviour. It was not long after the order was recalled that there were allegations of threats on the part of the appellant to relevant persons.

 

19.         It was submitted that the Sheriff had taken into account, not only the averments and submissions on behalf of the respondents, but also the averments and submissions on behalf of the appellant. The Sheriff had been informed of convictions sustained by Claire Graham and James Barron and of a pending matter involving Andrew Cunninghame. The Sheriff recorded in his note that he had been invited to consider the background to the case and that was what he had done. The Sheriff was correct to ignore any evidence that he had heard. It was a balancing exercise for the Sheriff to make in light of the information before him. The Sheriff had made a reasonable decision and I should not interfere with that decision.

 

Decision

 

20.         I have no hesitation at all in taking the view that the Sheriff was entitled to make an interim anti-social behaviour order in light of the material and submissions before him on 15 June 2011. He was invited to, and indeed did, consider the background of the present position in reaching his decision. He correctly did not attach weight to any evidence which had been given during the four days of proof which he had already heard. The Sheriff was entitled to consider convictions for conduct against the background of the appellant's alleged behaviour to these persons. The Sheriff properly considered the whole allegations on the amended record set against the procedural history of the case. He considered that a prima facie case had been made out by the respondents. The Sheriff states that this involved an exercise of his judgment in evaluating the allegation and responses. Both were considered by him. The fact that the allegations were denied by the appellant was taken into account by him, as were the admissions of criminal conduct by some against the appellant. He considered the submissions and material from both parties and was satisfied that there was a prima facie case.

 

21.         The Sheriff went on to consider whether an interim order was necessary for the protection of relevant persons from further anti-social behaviour on the part of the appellant. The Sheriff had noted that when the original interim order was in place there was a time of comparative calm. However when the order was recalled there were allegations that the appellant had stated this was "payback time". He considered the whole of the fresh allegations and the respondents' answers thereto. He concluded that the benefit of a further interim order, imposed for the protection of relevant persons, far outweighed any potential implications for the appellant.

 

22.         In my opinion that was a conclusion which the Sheriff, on the basis of the information before him, was entitled to reach. No material was placed before me to give me cause to interfere with the exercise of his discretion. In these circumstances the appeal is refused. I adhere to the Sheriff's interlocutor of 15 June 2011. I have awarded the expenses of the appeal procedure to the respondents.