Scottish Sheriff Court Decisions

SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT LERWICK

Judgement

Of

Sheriff Philip Mann

In Summary Cause SD6/11

Shetland Islands Council, Town Hall, Lerwick, Shetland (Pursuers)

Against

Ebrahim Abdullah Hassan, 17 North Road, Lerwick, Shetland (First Defender)

And

John Hay Leask, 17 North Road, Lerwick, Shetland (Second Defender)

 

Lerwick 3 September 2012

The sheriff, having resumed consideration of the cause:-

Finds in Fact:-

1. The Pursuers are the housing authority for Shetland Islands Area in terms of the Housing (Scotland) Act 1987.

2. Under a tenancy agreement dated 9 March 2002 and 25 February and 5 March both 2009, entered into in terms of the Housing (Scotland) Act 2001, the Pursuers are the landlords and the first and second Defenders are the joint tenants of the subjects known as and forming 17 North Road, Lerwick, Shetland.

3. Immediately prior to the creation of the tenancy agreement the Defenders were tenants of the subjects by virtue of a lease entered into in terms of earlier legislation. Immediately prior to the lease, that is between 1990 and 1994, the first Defender was the tenant of the Pursuers in a caravan at Gremista Caravan Site, Lerwick. Although it was not his preference to do so, the first Defender left that tenancy to take up the tenancy of the subjects as joint tenant with the second Defender at the request of the Pursuers.

4. Before the first and second Defenders signed the tenancy agreement the terms thereof were read over and explained to them.

5. In terms of clause 2.5 of the tenancy agreement the Defenders are obliged not to use or allow the use of the subjects for illegal or immoral purposes.

6. On 22 April 2009 the first Defender was convicted of a contravention of section 5(2) of the Misuse of Drugs Act 1971 in relation to an offence committed in the subjects on 12 September 2008. He was fined a sum of £400 in relation thereto.

7. On 10 February 2011 the first Defender was convicted of, inter alia, a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 by being concerned in the supply of a class B drug within the subjects between 1 March 2010 and 25 August 2010. He was sentenced to 2 years' imprisonment in relation thereto.

8. As at the date of the proof the first defender is in prison.

9. On 25 August 2010 the police carried out a search of the subjects under warrant. The second Defender was present within the subjects at that time. He was recovering from a medical operation. In the course of their search the police recovered evidence which contributed to the first Defender's conviction on 10 February 2011.

10. The Pursuers rightly regard drugs dealing within their housing stock as having a detrimental effect upon the public at large and upon the local community concerned. It is the Pursuers' policy to seek eviction of a tenant who has used the subjects of let for illegal or immoral purposes in a manner which is punishable by imprisonment.

11. The first Defender's convictions on 22 April 2009 and 10 February 2011 constituted breaches of clause 2.5 of the tenancy agreement.

12. The second Defender had no involvement in the criminal actions of the first Defender. He suspected that the first Defender was supplying drugs to others in the subjects due to the amount of people frequenting the subjects and the transient nature of their visits.

13. The second Defender has a conviction for rape dating from the early 1980s.

14. The first Defender has a daughter with whom he maintains contact. On account of the second Defender's conviction for rape the first Defender would not wish to exercise contact with his daughter within the subjects if the second Defender were also living there.

15. The first and second Defenders have a poor relationship as a result of which they are unable to live together. This is partly due to the first Defender's criminal behaviour. The second Defender would vacate the subjects rather than live there with the first Defender.

16. It is the intention of the Pursuers to re-let the subjects to the second Defender as sole tenant if and when the tenancy is terminated.

17. The second Defender has certain medical conditions and limited mobility as a result of which the subjects are unsuitable for him on a long term basis. In consequence thereof the second Defender has applied to the Pursuers to be re-housed in accommodation which will better suit his medical needs and the limitations in his mobility.

18. There are no arrears of rent in respect of the tenancy.

19. The first Defender gets on well with neighbours. The Pursuers have received no complaint from any neighbour of the first Defender regarding the first Defender's behaviour within the subjects.

20. The first Defender does not currently use substances which are controlled by the Misuse of Drugs Act 1971. In that respect he is a reformed character.

21. The first Defender is willing to demonstrate his continued abstinence from controlled substances by undergoing regular testing and by providing the results thereof to the Pursuers.

22. The first Defender aspires to remaining drug free, repairing damaged relationships within his family, gaining employment and affording to purchase the subjects from the Pursuers under the relevant legislation.

Finds in Fact and Law:-

1. These are proceedings under section 14 of the Housing (Scotland) Act 2001.

2. The Pursuers have a ground for recovery of possession of the subjects set out in paragraph 2 of schedule 2 to the Housing (Scotland) Act 2001.

3. It is reasonable to make the order sought by the Pursuers for recovery of possession of the subjects.

Finds in Law:-

1. Subject to section 16(1) of the Housing (Scotland) Act 2001, the court is obliged by virtue of section 16(2)(a) of the Housing (Scotland) Act 2001 to make the order sought by the Pursuers for recovery of possession of the subjects.

Therefore, Refuses the first Defender's motion to adjourn the proceedings; Finds the Pursuers entitled to an order for recovery of possession of the subjects known as 17 North Road, Lerwick, Shetland; Meantime reserves the question of expenses and appoints parties to be heard thereon within the Sheriff Court House, King Erik Street, Lerwick on 18 September 2012 at 10:00am unless prior to that date the parties lodge a joint minute agreeing the question of expenses.

 

 

Sheriff Philip Mann

Note/
Note

1. Introduction

1.1 These are proceedings for recovery of possession in terms of section 14 of the Housing (Scotland) Act 2001.

1.2 The Pursuers are Shetland Islands Council. The first Defender is Ebrahim Abdullah Hassan. The second Defender is John Hay Leask. The parties are respectively the landlords and joint tenants of the subjects known as 17 North Road, Lerwick under a tenancy agreement entered into in terms of the Housing (Scotland) Act 2001.

1.3 The Pursuers seek to recover possession of the subjects in consequence of the first Defender having been convicted of, inter alia, a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 committed within the subjects. The action is defended by the first Defender only.

1.4 Section 16(1) of the Housing (Scotland) Act 2001 is in the following terms:-

 

"(1) The court may, as it thinks fit, adjourn proceedings under section 14 on a ground set out in any of paragraphs 1 to 7 and 15 of schedule 2 for a period or periods, with or without imposing conditions as to payment of outstanding rent or otherwise."

 

1.5 Section 16(2)(a) of the Housing (Scotland) Act 2001 is in the following terms:

"(2) Subject to subsection (1), in proceedings under section 14 the court must make an order for recovery of possession if it appears to the court-

(a) that-

(i) the landlord has a ground for recovery of possession set out in any of paragraphs 1 to 7 of that schedule and specified in the notice required by section 14, and

(ii) it is reasonable to make the order"

1.6 Section 16(3) of the Act is in the following terms:-

 

"(3) For the purposes of subsection (2)(a)(ii) the court is to have regard, in particular, to-

(a) the nature, frequency and duration of-

(i) ...

(ii) where the ground for recovery of possession is that set out in paragraph 2 of that schedule, the conduct in respect of which the person in question was convicted,

(b) the extent to which that conduct is or was conduct of, or a consequence of acts or omissions of, persons other than the tenant,

(c) the effect which that conduct has had, is having and is likely to have on any person other than the tenant, and

(d) any action taken by the landlord, before raising the proceedings, with a view to securing the cessation of that conduct."

 

1.7 Parties were agreed that the Pursuers have the ground for recovery of possession set out in paragraph 2 of schedule 2 to the Act. Paragraph 2 is in the following terms:-

"The tenant (or any one of joint tenants), a person residing or lodging in the house with, or subtenant of, the tenant, or a person visiting the house has been convicted of-

(a) using the house or allowing it to be used for immoral or illegal purposes, or

(b) an offence punishable by imprisonment committed in, or in the locality of, the house."

 

The questions for my determination are whether or not the granting of the order sought by the Pursuers is reasonable and, if so, whether I should grant it or should adjourn the proceedings in terms of section 16(1) of the Act.

 

 

2. The evidence

2.1 I heard evidence on 7 August 2012 when the Pursuers were represented by Ms Brunton, solicitor and the first Defender was represented by Mr McGarvey, solicitor.

2.2 The Pursuers' witnesses were:-

1. Sarah Vaux, a housing officer in the employment of the Pursuers.

2. Shirley Mills, the Pursuers' Housing Estate Manager.

3. Police Constable Daniel James Whittingham.

4. John Hay Leask, the second Defender.

2.3 The first Defender gave evidence and also called:-

1. James Moran, substance misuse worker.

2. Georgina Patricia Suckley, the first Defender's mother.

2.4 There was no dispute on the facts of any significance. The findings in fact, of course, reflect the evidence I heard and which I considered to be both credible and reliable. I do not propose to rehearse the evidence in any more detail.

3. The Pursuers' Submissions

3.1 Ms Brunton maintained that no useful purpose would be served by adjourning the proceedings in terms of section 16(1) of the Act because the first Defender's repeated breaches of the tenancy agreement had undermined the relationship between landlord and tenant to such an extent that the Pursuers could have no confidence that the first Defender would abide by the terms of the tenancy in the future.

3.2 Ms Brunton referred to section 16(3) of the Act which sets out four factors that the court is directed specifically to take into account. The first factor was undoubtedly highly significant. The first Defender had twice breached the tenancy agreement, as evidenced by his two convictions occurring within two years of each other for contraventions of the Misuse of Drugs Act 1971. In particular, his conviction for a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971, which related to a period of about five months and for which he received a custodial sentence of two years, was so serious that the Pursuers were entitled to recover possession of the subjects forthwith.

3.3 In relation to the second factor there was no dispute that the criminal behaviour giving rise to the convictions referred to and the consequent breaches of the tenancy agreement was that of the first Defender alone.

3.4 In relation to the third factor Ms Brunton maintained that there were three groups or individuals affected. The first of these was the Pursuers themselves. Under reference to the case of Fife Council v Buchan 2008 Housing Law Reports 74 at page 78, paragraph (f) Ms Brunton submitted that the concerns of the Pursuers as to drug use and drug dealing within their housing stock, giving rise to their policy of seeking the eviction of tenants who have been convicted of such activity, was relevant. The second group was the general public. She maintained that no-one wants to live next door to a drug dealer. The evidence led by the first Defender that none of his neighbours had complained about his activities did not mean that the neighbours were not concerned. Drug use and drug dealing caused real social harm the effect of which on the public should not be underestimated. Ms Brunton referred to the case of Glasgow Housing Association Ltd v McNamara 2008 Housing Law Reports 38 and in particular to paragraph 32 thereof which she said mirrored the position of the Pursuers in this case, albeit that the drugs in McNamara were of class A whereas the drugs in this case were of class B. The third person affected was the second Defender. He had been present and had been recuperating from a medical procedure when the police searched his house under warrant. This would have been a stressful experience for anyone, let alone a man such as the second Defender who was a man in his sixties with health problems. He was entitled to consideration and respect no matter what he himself had done in the past.

3.5 In relation to the fourth factor Ms Brunton pointed out that the Pursuers had taken steps to ensure that the Defenders were aware of the terms of their tenancy agreement. The Defenders were accordingly aware that a breach of the tenancy agreement could lead to eviction.

3.6 Anticipating the first Defender's position Ms Brunton accepted, as was averred by the Pursuers, that the Pursuers intended to re-let the subjects to the second Defender as sole tenant in the event of the order for recovery of possession being granted. She explained that part of the rationale for this was that the Pursuers did not think it reasonable to evict someone who had had nothing to do with the conduct giving rise to these proceedings. It was clear from the evidence that the first and second Defenders could not live together in harmony. The fact that the first Defender may currently not be using drugs was a positive factor but it had to be borne in mind that he was currently still in prison and not subject to the temptations that would face him when he came back into the community. Ms Brunton conceded that having somewhere to live is important for anyone being released from prison. She pointed out that the first Defender could apply to the Pursuers for emergency accommodation if he had nowhere else to go. This did not render the ending of the first Defender's tenancy a pointless exercise as any tenancy offered to the first Defender could be a short secured tenancy, as opposed to a secured tenancy, meaning that the Pursuers could impose additional conditions. The termination of the tenancy would not affect the first Defender's contact with his daughter as it was clear from the first Defender's evidence that he had never exercised overnight contact with his daughter at the subjects.

4. The First Defender's Submissions

4.1 In opening his submissions Mr McGarvey accepted that the only matters for my decision revolved around the question of reasonableness. His primary position was that it was not reasonable to grant the order sought by the Pursuers and that the action should be dismissed. His secondary position was that the proceedings should be adjourned for a period to enable the first Defender to demonstrate that he could remain drug free and so as to afford him an opportunity to come out of prison to his own home.

4.2 Expanding on his primary submission, Mr McGarvey accepted that the first Defender had been convicted of drugs offences committed within the subjects but these had to be viewed in context. The earlier, and less serious, offence was not originally condescended upon by the Pursuers. They had introduced this by way of amendment shortly before the proof. This, perhaps, demonstrated that the Pursuers attached little importance to this offence. The more recent offence had to be seen against the background of the first Defender's addiction at the time. He had been driven to commit the offence because he had spent all of his savings and was spending all of his available income to sustain his own drug addiction. He had accepted in evidence that drug dealing was harmful to those to whom he had sold drugs but his position was that the harm to himself had been greater.

4.3 Mr McGarvey urged me to accept that whilst the second Defender gave evidence about the police raid in his presence and about a frequent smell of cannabis within the subjects the evidence was not such that the court could conclude that the second Defender had been seriously adversely affected by the first Defender's conduct in committing the offences. The second Defender had been aware that there was something going on within the subjects but had not been affected sufficiently to report matters to the police. In any event, it was clear from the evidence that the second Defender had applied for a move from the subjects and that there was a reasonable prospect that his application would be granted. In this situation, even if the Defenders could not live together in the subjects, preference should be given to allowing the first Defender to remain.

4.4 Mr McGarvey pointed out that whilst the second Defender had spoken to the first Defender's offending having been reported in the press he had been unable to say that the Defenders' address had been identified. Accordingly, it could not be said that the first Defender's behaviour had had a particularly detrimental effect in the neighbourhood. He referred to the first Defender's evidence that he got on well with his neighbours. This also pointed away from the first Defender's conduct having had a detrimental effect on the neighbourhood.

4.5 Under reference to Glasgow Housing Association Ltd v McNamara Mr McGarvey accepted that it was not possible to grant a partial recovery of possession by evicting only one of the Defenders. Picking up on Sheriff Ross's comments in that case and applying them to the different circumstances in this case Mr McGarvey suggested that the Pursuers' stated intention to re-let the subjects to the second Defender amounted to a willingness to allow the second Defender to "jump the queue". This demonstrated that the Pursuers were not applying public policy in an even handed manner.

4.6 Mr McGarvey said that I should look at the evidence as a whole. This included the fact that the first Defender was a reformed character as regards his involvement with drugs and his willingness to demonstrate that that was the case. The first Defender's evidence had instructed the court about his aspiration to come out of prison with the benefit of stable and familiar accommodation from which he could embark upon his goals of remaining drug free, repairing damaged relationships within his family, gaining employment and perhaps even affording to purchase the subjects from the Pursuers under the relevant legislation. The evidence also included the fact that the second Defender had admitted in evidence to smoking cannabis within the subjects on one occasion and that the second Defender was a convicted rapist, yet the Pursuers were prepared to give the second Defender preferential treatment as compared to the first Defender.

4.7 Again referring to Glasgow Housing Association Ltd v McNamara Mr McGarvey submitted that I should consider what was the most reasonable course in all the circumstances of the case. If I were to do that I should come to the conclusion that it was more reasonable to refuse the order sought by the Pursuers than to grant the order and allow the second Defender to queue jump.

4.8 Turning to his secondary submission, Mr McGarvey pointed out that Mr Moran, the substance misuse worker, had agreed that having stable accommodation upon release from prison was the single most important factor in ensuring an offender's successful rehabilitation within the community. Mr Moran had given evidence about the first Defender's motivation to kick the drug habit and remain drug free, albeit that the first Defender had embarked on this pursuit during his prosecution. Mr McGarvey invited me to accept that the first Defender could maintain his commitment and that he could demonstrate that by providing test results confirming abstinence from drugs. It was clear from the Pursuers' pleadings that one of their aims was to ensure the safety and amenity of their housing schemes. On a balance of probabilities, were the court to grant an adjournment on condition that the first defender remain drug free that aim would be achieved and the Pursuers would be safe in the knowledge that a breach of the condition would lead to the order being granted. Mr McGarvey maintained that the most reasonable course would be to give the first Defender a chance.

5. Discussion and Decision

5.1 The first Defender has been convicted of a very serious contravention of the Misuse of Drugs Act 1971 by being concerned in the supply of drugs from the subjects. He was sentenced to two years in prison as a punishment. That in itself is sufficient to give the Pursuers the right to recover possession of the subjects set out in paragraph 2 of schedule 2 to the Housing (Scotland) Act 2001. I do not need to consider the consequences of the Pursuers not initially condescending upon the first Defender's earlier and less serious contravention of the 1971 Act. In any event Mr McGarvey has conceded that the Pursuers have the necessary ground for recovery of possession and that the only questions for my decision are whether or not it is reasonable to grant the order for that recovery and, if so, whether I should grant it or should adjourn the proceedings in terms of section 16(1) of the 2001 Act.

5.2 In Glasgow Housing Association Ltd v McNamara Sheriff Ross considered whether the phrase "it is reasonable to make the order" in section 16(2)(a)(ii) referred to the most reasonable choice, comparing all possible outcomes, rather than to one of several equally reasonable but conflicting courses. He doubted that that was the case but, in fairness to the qualifying occupier who was standing in place of the Defender, he proceeded on the basis that it was. That may be one way of approaching matters but it seems to me that what the court has to do is to decide whether or not it is reasonable to grant the order; not whether or not the granting of the order is one of, or the best of, several reasonable courses of action. There are only two possible options for the court - either to grant the order or not. Granting the order is either reasonable or not, depending on the circumstances of the case. If it is reasonable to do so the court must grant the order unless in the exercise of the discretion conferred by section 16(1) of the act it decides to adjourn the case.

5.3 The order may only be granted if it is reasonable to do so. That must mean reasonable in the circumstances of the case, having regard, in particular, to the four matters set out in paragraphs (a) to (d) of section 16(3) of the Act. Looking at these paragraphs in turn:-

(a) The first defender has been convicted of a very serious contravention of the Misuse of Drugs Act 1971, resulting in a two year sentence of imprisonment. It involved the supply of class B drugs within the premises over a period of about five months.

(b) The conduct giving rise to these offences was that of the first Defender alone. He cannot claim that the consequences of his conduct should be mitigated in any way because he was playing an insignificant or unwilling or unwitting part in a scheme orchestrated by someone else.

(c) It is within judicial knowledge, arising from the fact that courts deal with drug offending on a daily basis, that drug dealing causes great harm within the communities in which it is carried out. This is so whether or not the actual address in which the offending takes place is disclosed in the press coverage of the relevant criminal proceedings. It is also so whether or not the offender gets on well with neighbours and whether or not neighbours see fit to complain about the offender's behaviour. The Pursuers' policy of pursuing the eviction, and thus ridding the community, of drug dealers is entirely reasonable and legitimate. In this case the criminal conduct of the first Defender has undoubtedly had some effect on the second defender. In the typical case, where there is an occupier other than the tenant whose conduct has given rise to the ground for recovery of possession, the order will be granted despite, not because of, the effect of the tenant's behaviour on that occupier. That is so because in the typical case the grant of the order will result in that occupier also being ejected from the subjects. In this case the Pursuers intend to re-let the subjects to the second Defender if they are successful in obtaining the order. It seems to me that in these circumstances the effect of the first Defender's conduct on the second Defender is relevant not so much to the question whether it is reasonable to grant the order but to the question whether or not I should exercise my discretion in terms of section 16(1) to adjourn the proceedings. I will return to this.

(d) I do not accept Ms Brunton's submission that the fact that the tenancy agreement was read over and explained to the Defenders before they signed it is a relevant consideration under this paragraph. But it is part of the general circumstances that I take into account. It is a matter of inference that the first Defender must have been aware that use of the subjects for an illegal or immoral purpose, such as drug dealing, would be a breach of the tenancy agreement which could lead to eviction action being taken against him. This supports a conclusion that granting the order is reasonable.

5.4 Taking all of the foregoing into account I am of the view that, prima facie, it is reasonable to grant the order sought by the Pursuers. I will now examine whether or not any of the general circumstances relied upon by the first Defender makes it unreasonable to do so.

5.5 I do not accept that it is unreasonable to grant the order because of the effect that the first Defender's drug habit had on himself. He is the author of his own self inflicted misfortune. It does not in any way lessen the harm done to the community at large.

5.6 I do not accept that the fact that the Pursuers intend to re-let the subjects to the second Defender renders the granting of the order unreasonable or even that it amounts to queue jumping, if that is a relevant consideration. The fact is that the second Defender is not in the queue for this particular property. He has applied for a more suitable tenancy elsewhere. There is no guarantee that the second Defender will qualify for the tenancy that he seeks. If the Pursuers were to grant the second Defender a tenancy of the type that he seeks merely to allow the first Defender to remain in the subjects it would be that that would potentially amount to queue jumping. It is quite clear from the evidence that the Defenders will be unable to live together in harmony in the subjects. I see nothing unreasonable, and nothing wrong in principle, in the Pursuers' intention to re-let the subjects to the second Defender if the order is granted. These proceedings should not be seen as a contest between the first and second Defenders to see who is the more deserving of a tenancy of the subjects. That is purely a matter for the Pursuers to decide if and when the order is granted.

5.7 The facts that the second Defender has smoked cannabis within the premises and that he has been convicted of rape are neither here nor there. Again, this is not a contest between the first and second Defenders to see who is the more deserving of a tenancy of the subjects. What preference the Pursuers wish to accord to the second Defender is a matter entirely for them.

5.8 I do not accept that the fact that I have accepted the first Defender to be a reformed character makes it unreasonable to grant the order. In the first place, he has been convicted of a serious crime. I see no reason why he should, in effect, be rewarded merely for now doing what every other upright citizen is required to do, namely obey the law. In the second place and in any event, there is no guarantee that he will not fall back into criminal drugs activity.

5.9 I do not accept that the fact that the first Defender has certain aspirations points away from the reasonableness of granting the order. He can pursue most of these aspirations wherever he resides. In so far as he will not be able to pursue the aspiration of buying these particular subjects from the Pursuers that is just part of the penalty that he has to pay for his serious criminal activity. In any event, I heard insufficient evidence to enable me to find, on a balance of probabilities, that this particular aspiration is capable of being realised.

5.10 For the sake of completeness I would mention that although Mr McGarvey did not rely on it in submissions I have taken into account the matters referred to in a letter written by the Pursuers to the first Defender's mother dated 20 April 2011. It was spoken to in evidence. This is a record of a discussion between the Pursuers and the mother conducted with the authority of the first Defender. It sets out some additional matters which the first Defender was relying on as supporting the retention of his tenancy. I do not intend to describe all of these in detail here, not least because Mr McGarvey did not specifically rely on the terms of the letter. But suffice to say that I see nothing in the letter which would render the granting of the order unreasonable. I mention two matters in particular. Firstly, I do not consider the length of time that the first Defender has been a tenant of the Pursuers and the circumstances surrounding his change of tenancy render it unreasonable to grant the order. Secondly, it is not essential to maintaining contact with his daughter that the first Defender must be able to reside in the subjects.

5.11 In the circumstances of this case I am satisfied that it is reasonable to grant the order sought by the Pursuers. It follows that I must grant the order unless I am persuaded that it would be appropriate to exercise the discretion which I have in terms of section 16(1) of the Act to adjourn the proceedings. This brings me to Mr McGarvey's secondary submission.

5.12 I have decided against exercising my discretion to adjourn the proceedings. Firstly, whilst I have accepted that having stable accommodation is important for a released prisoner I cannot accept this as being a valid reason for adjourning the proceedings rather than granting the order. To do so would be to rob paragraph 2 of schedule 2 to the Act of any practical effect. It would be illogical that the first Defender's criminal behaviour, which resulted in a custodial sentence, gives the Pursuers a right to recover possession of the subjects but that that should be denied because it is important for prisoners to have stable accommodation when they are released. If the first Defender has nowhere else to go when he comes out of prison he can apply to the Pursuers for emergency accommodation. It may not be an ideal situation for him but, again, the first Defender has to accept that as part of the consequences of his serious criminal behaviour. Secondly, in the particular circumstances of this case I see no merit in adjourning to see whether or not the first Defender can maintain his drug free status. Whether he can or not, it does not alter the fact that he was convicted of a very serious offence which unlike, say, rent arrears cannot be undone. Thirdly, there is the effect of the first Defender's conduct on the second Defender. I accepted the second Defender's evidence that, inter alia, because of the first Defender's criminal activity he could no longer live with the first Defender and that he would vacate the subjects rather than live there with him. Granting an adjournment would be unfair to the second Defender in these circumstances.

5.13 Accordingly, I have determined that I am obliged to grant the order

5.14 I was asked to reserve the question of expenses and I have done so. I have fixed a hearing but it would be helpful if parties could lodge a joint minute if they are able to agree on this question. I could then grant an appropriate interlocutor without a hearing.