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SHERIFFDOM OF SOUTH STRATHCLYDE, DUMFRIES AND GALLOWAY AT

HAMILTON

[2024] SC HAM 54

HAM/B938-23

JUDGMENT OF SHERIFF J SPEIR

in the cause

SOUTH LANARKSHIRE COUNCIL

Pursuer

against

ANDREW CUNNINGHAM

Defender

Pursuer: Mr Cox, solicitor; South Lanarkshire Council

Defender: Party

Hamilton 5 November 2024

The sheriff, having resumed consideration of the cause:

Finds the following facts admitted or proved:

The pursuer is South Lanarkshire Council ("the Council"). It is a local authority

constituted in terms of section 2 of the Local Government etc (Scotland) Act 1994. It has its

principal offices at Council Offices, Almada Street, Hamilton.

The Council is the Housing Authority for the area of South Lanarkshire including the

town of East Kilbride.

The defender is Andrew Cunningham who occupies a flat in Clyde Tower, East

Kilbride ("Clyde Tower"). The Council owns the property occupied by the defender. It was

let to the defender in terms of a Tenancy Agreement dated 9 November 2020.

Clyde Tower is a high-rise block of flats.

The Council has consulted with Police Scotland who support this application.

Records kept by Police Scotland in accordance with section 139 of the Antisocial

Behaviour etc (Scotland) Act 2004 disclose that between 14 May and 19 September 2023 four

complaints were made concerning conduct by the defender of which two related to conduct

with which this application is concerned, namely:

the telephone call on 7 September 2023 referred to in finding in fact 11; and

a complaint dated 19 September 2023 at 1949 hours from one of the

defender's neighbours at Clyde Tower reporting loud music, shouting and swearing

coming from the defender's address which Police Scotland passed to the Council.

That from around August 2021 for a period of 2 years, the Council had from time to

time received complaints from several other tenants in Clyde Tower in relation to the

defender's behaviour. The complaints were of excessive noise from his property and

generally antisocial and threatening behaviour from him or visitors to him. No action had

been taken in response to these complaints.

That the Council have a policy of protecting the anonymity of complainers of

antisocial behaviour within the properties managed by them.

That there was a meeting within Clyde Tower which took place on 21 August 2023.

All of the tenants were invited. The defender did not attend. At that meeting the

complaints referred to in the preceding finding in fact were ventilated publicly by other

tenants in the presence of police and employees of the Council's housing department.

10.

That in consequence of the complaints made prior to and at said meeting a Council

housing officer, "M", issued the defender with a letter dated 6 September 2023 in terms of

section 17(2) of the Housing (Scotland) Act 1987. Said letter intimated an intention to visit

him within his property for the purpose of inspecting his tenancy and discussing various

tenancy related matters.

11.

That in response to said letter the defender telephoned the Council's housing

department on 7 September 2023. In the course of said telephone call he made several

threats of violence towards M which caused her significant alarm and distress. Said

telephone call was recorded and reported to the police and became the subject of separate

criminal proceedings.

12.

That by letter dated 19 September 2023 the Council's housing services manager,

advised the defender that the behaviour evinced in said telephone call was unacceptable and

due to a concern of re-occurrence a record of it was being retained until at least March 2024.

13.

That following said letter dated 19 September 2023 a further complaint of antisocial

behaviour on the part of the defender was received by the Council, being the complaint

detailed in finding in fact 6(2).

14.

That by letter dated 4 October 2023 M invited the defender to attend the Council's

housing department office on 11 October 2023 to discuss matters further. The defender did

not respond to that invitation nor attend at the appointed date and time.

15.

That because of the complaints received and the lack of engagement by the defender

the Council instructed KM, an officer within their antisocial behaviour team, to carry out an

investigation and interview the complainers on the basis that their identities would not be

disclosed to the defender.

16.

That following such investigation and interview of the complainers concerned KM

was able to obtain recent accounts of antisocial behaviour on the part of the defender

including loud music, shouting, and banging emanating from the defender's property as

well as alarming behaviour towards persons residing near him within Clyde Tower.

17.

That such behaviour caused or would have been likely to cause alarm or distress to

the complainers concerned.

18.

That the defender did not accept KM's invitation to discuss the reports of complaints

made.

19.

That in all the circumstances and having regard to the available evidence the Council

reasonably concluded that on the range of options available to it the appropriate course was

to seek an antisocial behaviour order against the defender.

20.

That an interim antisocial behaviour order was granted in favour of the Council

against the defender on 6 December 2023 and remains in force at the present date.

21.

That there have been no further reported incidents of anti-social behaviour since the

beginning of October 2023.

22.

That the defender successfully underwent detoxification treatment between October

and December 2023 and continues to benefit therefrom and from the ongoing support he

receives from appropriate agencies.

Finds in fact and in law as follows:

That between August 2021 and the beginning of October 2023 the defender engaged

in antisocial behaviour towards relevant persons.

It is necessary to make an antisocial behaviour order for the purpose of protecting

relevant persons from further antisocial behaviour by the defender.

That the appropriate period for such an order is 3 months

Therefore:

Recalls the interim antisocial behaviour order pronounced on 6 December 2023;

Grants an antisocial behaviour order against the defender in terms of section 4(1) of

Part 2 of the Antisocial Behaviour etc (Scotland) Act 2004 prohibiting the defender from

(i) shouting, swearing, banging, playing any amplified sounds (whether music, television or

otherwise) or otherwise making noise within the subjects or in the vicinity of the (subjects

occupied by the defender) at Clyde Tower, East Kilbride or any other dwellinghouse

occupied by him as his principal home (hereinafter referred to as "the subjects"), at such a

volume as to be audible outwith the subjects; (ii) assaulting, verbally abusing, threatening,

intimidating or acting in a manner likely to cause fear and alarm or annoyance to others; all

within the Sheriffdom of South Strathclyde, Dumfries and Galloway; for a period of

3 months from the date hereof;

Finds no expenses due to or by either party.

Sheriff John Speir

NOTE

Introduction

[1]

The imposition of an antisocial behaviour order is a serious matter. Breach of it can

have severe consequences in the form of a sentence of imprisonment or a fine or both.

Applications for antisocial behaviour orders are made by way of summary application. This

summary application is by South Lanarkshire Council ("the Council"). The Council seeks

the grant of an antisocial behaviour order against the defender in terms of section 4(1) of the

Antisocial Behaviour etc (Scotland) Act 2004 ("the 2004 Act"). The basis of the application is

the defender's alleged behaviour towards (a) his neighbours in the common stair at Clyde

Tower, East Kilbride ("Clyde Tower") and (b) towards the Council's staff.

[2]

The defender opposes the application. On 6 December 2023 at a hearing after service

an interim antisocial behaviour order was made against the defender in the terms craved by

the Council as follows:

"Ad interim Grants the Anti Social Behaviour Order, against the defender in terms of

Section 4(1) of Part 2 of the Antisocial Behaviour Etc (Scotland) Act 2004 prohibiting

the defender from (i) shouting, swearing, banging, fighting or otherwise making

noise within the subjects or in the vicinity of the (subjects occupied by the defender)

at Clyde Tower, East Kilbride or any other dwellinghouse occupied by him as his

principal home (hereinafter referred to as `the subjects'), at such a volume as to be

audible outwith the subjects; (ii) damaging property belonging to another, including

communal property, in or within the vicinity of the subjects; (iii) assaulting, verbally

abusing, threatening, intimidating or otherwise putting into a state of fear, alarm or

distress any persons in the South Lanarkshire Council area; (iv) entertaining more

than three visitors at any one time at the subjects; and (v) permitting or encouraging

any persons to engage in any of acts described in (i) to (iv) above; "

[3]

There was no appearance by or on behalf of the defender at said hearing to oppose

the making of the interim order.

[4]

After sundry procedure the case called for proof. Mr Cox, solicitor, appeared on

behalf of the Council. The defender represented himself. The only pleadings were those set

out in the initial writ. The defender was content to proceed without written answers. The

basis of his opposition was nonetheless clear from his questioning of the Council's

witnesses, his own evidence and his brief written submissions as further referred to below.

The evidence

[5]

The evidence in the case was of relatively short compass. The essential facts from the

evidence heard are set out in my findings in fact. The Council led evidence from CL and

KM. The defender gave evidence himself.

[6]

CL is a housing services manager with the Council. She has responsibility for East

Kilbride and Strathaven. Her duties involve oversight of all housing management functions,

including: allocation, movements, rent arrears, homelessness provision and antisocial

behaviour issues. In relation to antisocial behaviour she tended to be more reactive. It was

something that required to be responded to rather than planned for. The defender was a

council tenant of a property at Clyde Tower, East Kilbride. He had been a tenant there

since 2020. Clyde Tower is a multi-storey property comprising a number of flats.

Complaints about his behaviour from other tenants in Clyde Tower began around

August 2021. Prior to the meeting in September 2023 there had been a total of six complaints

of antisocial behaviour from different complainer's detailing load music, excessive noise,

kicking of doors and the defender behaving in a threatening manner towards another

resident. Generally complaints of antisocial behaviour were not necessarily acted upon

straightaway. It depended on the nature of the complaints and the number of sources for it.

The council recognised a need to try and find corroboration for complaints balanced against

protecting the anonymity of complainers for fear of repercussions. There were usually

different stages to go through before a decision was made to apply to the court for an

antisocial behaviour order. Those included various forms of initial and then final written

warnings. Stages could be skipped depending on the seriousness of the conduct involved.

By 2023 there was a concern that the defender's behaviour was escalating. That concern was

compounded when he made an abusive and threatening telephone call to the member of the

local housing team ("M") who had been dealing with him. Shortly before that telephone call

there had been a meeting of residents at Clyde Tower on 21 August 2023. CL had attended

that meeting together with other members of the housing team and the local police. In the

course of the meeting complaints were made that the Council were not doing anything

about the incidences of antisocial behaviour that been being reported. There was

considerable frustration as to the lack of action in particular the continuation of excessive

noise. The defender was specifically named as being the source of this behaviour. CL

explained to the meeting the process for reporting and dealing with complaints and the need

to seek corroborating evidence prior to significant action being taken. The defender had not

been present at the public meeting. Following the meeting M sent a letter to the defender

dated 6 September 2023 intimating an intention to carry out an inspection of his property

and to discuss various tenancy related matters. The intention was to discuss the complaints

that had been made against the defender and to deal with the issue robustly but also to

clarify if the defender needed any support. The following day, 7 September 2023, and in

response to that letter, the defender contacted the local housing team by telephone and

made various threats against M. That call had been recorded. CL had listened to the

recording. She had been very disturbed by what had been said by the defender in particular

the nature and detail of the threats made. M had been extremely alarmed and threatened by

the call. The issue was of particular concern because on occasions M could be required to

work alone within Clyde Tower. The safety of council staff was of paramount importance

and any risk to them was taken very seriously. As a result of the defender's call CL sent a

letter to the defender dated 19 September 2023. The purpose of the letter to make it clear to

the defender that his behaviour was unacceptable. Subsequent to the telephone call a

further complaint of antisocial behaviour by the defender was received. By letter dated

4 October 2024 he was advised of the investigation of that complaint. He was invited to

attend a meeting with M on 11 October 2023 or contact the office to arrange an alternative

date if that was not suitable. He did not respond to that letter or attend the proposed

meeting. In all the circumstances a decision was made to escalate the case to the Council's

antisocial behaviour team to carry out further investigations. On completion of those

investigations all options going forward were reviewed ranging from sending out further

warning letters to commencing eviction proceedings. A determination was made to seek an

antisocial behaviour order. Had it not been for the telephone call to M less serious sanctions

may have been considered in the first instance, including an invitation to enter into an

antisocial behaviour contract. Separately the recording of that call had been passed to the

police and criminal charges against the defender arising therefrom were pending. There had

been no further complaints of antisocial behaviour order since the interim order had been

made in December 2023. Prior to that there had been six different complaints from five

different complainers.

[7]

In cross-examination CL accepted that in fact there had been no further complaints

since October 2023. She accepted the defender's assertion that this was because around that

time he had been admitted to hospital in order to undergo detoxification treatment. She

accepted that the names of the complainers had not been disclosed to the defender but that

was consistent with the Council's policy not to disclose such identities having regard to both

considerations of data protection and the possibility of recriminations. She was unable to

speculate why there had been no police involvement prior to October 2023 nor indeed what

steps any officers from environmental health had taken in relation to complaints made to

them. The defender indicated that he was not intending to ask questions about the

telephone call as this was currently the subject of an ongoing criminal complaint but

suggested that he had complained about M's behaviour on several occasions and that her

conduct towards him had been unreasonable. CL responded that she was fully satisfied that

M had acted properly at all times in accordance with her role and responsibilities.

[8]

KM is 55 years old. He is an antisocial behaviour investigation officer with the

Council. He has responsibility for the East Kilbride area. He has been in post for 3 years.

Prior to that he had been a detective constable with Police Scotland with 30 years' service.

His role required him to deal with the more serious cases of antisocial behaviour. A housing

officer or the housing services manager allocated him cases. He had been allocated the

defender's case on 18 October 2023 and provided with background to the complaints made

against the defender by five witnesses. Those complaints were of loud music, shouting,

persons coming going at all hours of the day and night, the consumption of cannabis and

alcohol in the lift and other common areas and threatening behaviour towards other

residents. He carried out an investigation by initially contacting the complainers whose

details were available. Ultimately he was able to speak to seven separate complainers

within Clyde Tower. Their complaints against the defender stemmed from 2021 to the time

of his investigation. He obtained detailed statements from them as to the nature and

circumstances of the antisocial behaviour and how it had affected them. The principal

complaints were: loud music and noise coming from the defender's flat; frequent and

numerous visitors to him coming and going at all hours of the day and night; associated

drinking and noise in common areas from those visitors who also urinated in the lift and

exhibiting threatening behaviour towards other residents. He had been made aware of the

threatening telephone call that the defender had made to M. He had listened to a recording

of that conversation and had felt disgusted by it. On completion of his investigation and

interviews with other residents of Clyde Tower he sent a letter to the defender dated

27 October 2023. Prior to sending that letter he had made numerous attempts to contact the

defender without success. That letter details the outcome of his investigation and in

particular of reports made of:

"loud music, shouting, and banging from (the defender's) property as well as

alarming behaviour towards persons both residing near (his) property and persons

employed by the Council and placing them in a state of fear and alarm for their

safety".

The letter also advised that because of these reports the Council intended to seek an interim

antisocial behaviour order against him. He invited the defender to contact him if he wished

to discuss the matter further and in more detail. The following day the defender contacted

him by telephone. The defender was not interested in listening to anything he had to say

but rather wished to make it clear that he would only speak to him when he could be

bothered to do so. He made no further contact. KM also obtained made a request for

disclosure of antisocial behaviour information relative to the defender held by Police

Scotland. A disclosure report dated 15 November 2023 detailed reported incidents from

13 and 14 May, and 7 and 19 September all 2023. KM was aware that there was a pending

criminal case in relation to the telephone call made to M. KM's recommendation to the

housing services manager had been to seek an antisocial behaviour against the defender.

Police Scotland supported that course of action in terms of their letter dated 16 November

2023.

[9]

In a very brief cross-examination KM agreed with the proposition that the behaviour

he had investigated and thereafter reported could amount to criminal offending. He was

unable to comment why no criminal charges had been brought because of that offending but

suggested that possibly the witnesses were too scared and intimidated to report it to the

police. KM had reached his conclusion that the defender had been responsible for antisocial

behaviour on the basis on the statements he had obtained from the defender's neighbours in

Clyde Tower.

[10]

Giving evidence on his own behalf the defender asserted that there was no definitive

evidence against him. He did not accept the accounts relied on by the Council. He

suggested that other tenants were lying and making up stories against him. He further

suggested that there was "more to it than meets the eye" but would not be drawn any

further on what he meant by that. Since October 2023 he had successfully undergone

detoxification treatment. He was still working with helpers and receiving support. He now

abstained from alcohol. He thought there were at least a hundred people in the tower block

and it would appear that only six of them had spoken against him. He believed that there

was no point in an antisocial behaviour order being made against him. He had changed his

lifestyle. He thought this process was a "complete waste of time". He did not want any

interference from the Council. He had suffered from PTSD which could make

communication with others confrontational. He accepted he had made the telephone call to

M had taken place but referred to there being were underlying circumstances which he did

not elaborate on.

[11]

In cross-examination he was prepared to accept that his behaviour in the past may

have given a basis for some people to make complaints against him. He did not accept his

behaviour was intimidating to others. He did accept he had been aggressive towards M. He

did not accept that has behaviour towards her placed her in a state of fear and alarm. He

suggested there was no evidence that he been aggressive towards anyone. He suggested

that the seven witnesses who had given statements could have made up stories. Everything

had been made up. He had not appeared at the hearing in December 2023 to oppose the

making of the interim order as he was undergoing treatment for his drink problem at that

time. Although not present at the public meeting he did not accept that it concerned him as

the main issue was about dogs.

Credibility and reliability

[12]

I accept the evidence of CL and KM as credible and reliable in all material respects.

The defender chose not to engage with all aspects of the evidence in particular the telephone

call he made on 7 September 2023. He did however accept that he made that call but was

not going to comment on it because it was the subject of pending criminal proceedings.

Having said that he then sought to explain it was because of "circumstances" prevailing at

the time, from which I inferred his issues with alcohol.

[13]

The defender refused to accept the veracity of the reports made initially to the

Council's housing department and then investigated by KM. He did not appear to challenge

either that complaints had been made and then investigated but that rather what was

involved was some sort of conspiracy against him by other tenants. I have little hesitation in

rejecting that hypothesis. Had there been anything of that nature involved I have little

doubt that KM as an experienced investigator would have detected it and reported it to the

Council.

[14]

In any event, the reports of the defender behaving inappropriately towards his

neighbours in Clyde Tower is strongly supported in the present case by the terms of the

telephone call he made on 7 September 2023. CL and KM each confirmed that the letter

dated 19 September 2023 accurately recorded the threats made by him including the

following:

"You stated you will fight M should she come to your property.

You stated you will punch M in the face should she attend your property.

You stated on a number of occasions you will kick M in the head should she attend

your property.

You stated on a number of occasions that you will kick f*** out M...

You stated you will kick M's c*** in.

You stated that you hate M and will attack her if she comes to your property with the

police.

You stated that if M comes to your house it will 'kick off'."

[15]

On any view such egregious behaviour cannot reasonably be tolerated and I quite

accept and understand that from the Council's perspective this tipped the balance in favour

of seeking an antisocial behaviour order rather than a less stringent measure.

Submissions

Pursuer's submissions

[16]

The solicitor for the Council summarised the evidence as set out in the foregoing

findings and fact and Note. He submitted that based on that evidence on the balance of

probabilities the court could be satisfied that the statutory requirements for the imposition

of an antisocial behaviour order were satisfied. He submitted that the evidence led by the

council was credible and reliable in contrast to the response thereto by the defender. The

length of any order was a matter for the court and while it was recognised that there had

been a significant period without recurrence of any antisocial behaviour ongoing deterrence

was important. Whatever the outcome expenses were not sought.

[17]

No authorities were referred to by the solicitor for the Council beyond the terms of

section 4 of the 2004 Act. In the course submissions I drew his attention what appeared to be

a conflict at sheriff court level as to what the requisite standard of proof was in determining

applications of this nature under reference to Glasgow City Council v Ferguson 2009 SLT 47

and Stirling Council v Harris 2009 SLT (Sh Ct) 106. I also drew his attention to in Macphail,

Sheriff Court Practice (4th Edition, 2022) at paragraph 21.75 which refers to the latter case as

support for it possibly being the criminal standard rather than the civil standard as

contended for by the Council.

[18]

The solicitor for the Council asked for an opportunity to consider the position and

accordingly a further hearing on submissions was arranged. At that further hearing he

maintained that the appropriate standard was that of the balance of probabilities relying on

the case of Glasgow City Council v Ferguson, supra.

Defender's submissions

[19]

In a concise written submission the defender challenged the basis and need for the

order on substantially three grounds:

The absence of any actual witnesses or witness statements from other residents

within Clyde Tower to support the complaints of noise or other antisocial

behaviour;

That he could not comment on the allegations concerning the phone call as it

was an ongoing criminal case; and

That there had been no complaints since the beginning of October 2023 and

that was not due to the interim order but because of the detoxification

treatment he had undergone and the ongoing support he was receiving.

Decision and reasons

[20]

Section 4 of the Antisocial Behaviour (Scotland) Act 2004 ("the 2004 Act") provides

inter alia that:

"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.

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.

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...

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.

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.

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..."

[21]

The definition of what constitutes antisocial behaviour is found in section 143 of the

2004 Act as follows:

"(1)

For the purposes of this Act ... a person (`A') engages in antisocial behaviour

if A- (a) acts in a manner that causes or is likely to cause alarm or distress; or

(b) pursues a course of conduct that causes or is likely to cause alarm or distress, to at

least one person who is not of the same household as A; and 'antisocial behaviour'

shall be construed accordingly."

Standard of proof

[22]

Before applying the facts to the statutory test, it is appropriate that I first deal with

the standard of proof to be applied in determining applications for antisocial behaviour

orders. That there may be continuing uncertainty as to this issue is evident from Macphail,

Sheriff Court Practice (4th Edition, 2022), paragraph 21.75 which states:

"It has been suggested that the standard of proof required to establish the antisocial

behaviour upon which the application is based, is the higher standard i.e. proof

beyond reasonable doubt, because of the serious consequences for the person subject

to the order if breached."

[23]

In the footnote to this paragraph, the principal authority cited for this statement is R

(On the application of McCann) v Manchester Crown Court [2002] UKHL 39; [2002] 1 AC 787

per Lord Hope at [82], being a decision in relation to the making of antisocial behaviour

orders under the Crime and Disorder Act 1998. Although this was a case relating to English

law it is reasonably clear from Lord Hope's speech and his reference to the Scottish

authority of Constanda v M, 1997 SC 217 that he intended his remarks to apply to both

jurisdictions. The decision in McCann was followed in the sheriff court case of

Stirling Council v Harris 2009 SLT. (Sh Ct) 106 (also listed in the same footnote in Macphail) in

which it was held that, in an application for an order under the 2004 Act, the proper burden

of proof to be discharged by the pursuers was beyond reasonable doubt.

[24]

The sheriff in Harris, however, does not appear to have been referred to or addressed

on the case of Mullan v Anderson 1993 SLT 835, a five bench decision, which authoritatively

determined that in civil cases, all facts are found proved in the balance of probabilities, there

being no higher test even where serious allegations are made. Mullan was referred to and

followed by both the Sheriff Principal (Sir Stephen Young) in the case of Aberdeen

Council v Fergus 2006 Hous. L.R. 90 and Sheriff J Beckett (as he then was) in the case of

Glasgow City Council v Ferguson 2009 SLT 47. In both cases it was held that it was the civil

standard of proof that required to be applied in cases brought under the 2004 Act.

Somewhat surprisingly none of these authorities are listed in the footnote in Macphail to

which I have referred. In Glasgow City Council v Ferguson Sheriff Beckett conducted a

thorough review and analysis of the authorities and the conclusion to be derived therefrom

all of which I respectfully agree with. It follows therefore, that I consider that the suggestion

of the applicability of the criminal standard, as set out in paragraph 21.75 of Macphail, is

incorrect.

[25]

I am further fortified in this view by the recent seven bench decision of the Supreme

Court in the case of Birmingham City Council v Jones [2023] UKSC 27; [2024] AC 168. That

appeal concerned inter alia the power of the courts in England in relation to the grant of

injunctions pursuant to part 1 of the Anti-social behaviour, Crime and Policing Act 2014,

being the successor (in relation to English anti-social behaviour orders) to the Crime and

Disorder Act 1998. Specifically the issue in Birmingham City Council v Jones was whether it

was the criminal or civil standard of proof which was applicable to the relevant issues in

such cases. In determining it was the latter, that is on a balance of probabilities,

Lord Lloyd-Jones JSC delivering the judgment of the court inter alia stated at paragraph 56

(having considered the dicta of Lord Hope in McCann referred to above):

"I do not consider that McCann is authority for the proposition that anti-social

behaviour within section 1(1) (a) of the 1998 Act required to be proved to the

criminal standard. The standard of proof under section 1(1)(a) of the 1998 Act was

the civil standard of proof on the balance of probabilities and to the extent that any

reasoning in the McCann opinions is to the contrary effect it is ...wrong."

[26]

Thus, the cornerstone of the decision in Harris, supra and cited in support of the

suggestion in Macphail has been unequivocally removed. Accordingly there can now be no

doubt that the standard of proof to be applied in determining applications such as the

present for antisocial behaviour orders is the balance of probabilities.

Application of facts to statutory test

[27]

In the circumstances of the present case no issues arose in relation to certain statutory

threshold requirements for the making of an antisocial behaviour order, namely:

That the defender complies with the minimum age requirement for a "specified

person";

That the "relevant consultee" being the Chief Constable of the Police Service of

Scotland (per section 18 of the 2004 Act) was consulted

That the "relevant persons" for whom protection was sought were neighbours

of the defender within Clyde Tower and employees of the Council's housing

department with responsibility therefor

That no issue of reasonability of conduct was engaged as contemplated by

section 4(3) of the 2004 Act.

[28]

What remains for determination then is whether the defender has engaged in

antisocial behaviour by either acting in a manner or pursuing a course of conduct causing or

likely to cause alarm or distress to at least one person not of the same household. Thereafter

if that conduct has been proved there remains the test of necessity for an order in terms of

section 4(6) of the 2004 Act.

[29]

Subject to the observations I make below I am satisfied that the first leg of this test

has been met. The findings in fact set out the behaviour or conduct which I have found to be

established. While I consider that the defender makes an important point in relation to

having proper and fair notice of the specific allegations against him, I am satisfied on the

balance of probabilities that he did engage in certain forms of antisocial conduct. While I

agree that there is a want of detail to cover the 2 year period since August 2021 as referred to

by CL, that is not the case in relation to the specific incidents in September 2023. Those are

the threatening and abusive telephone call on 7 September 2023 and then the further

complaint made on 19 September 2024 as noted in the Police Scotland Disclosure Report and

subsequently reported to the Council.

[30]

In addition to criticising the reliance on hearsay evidence the defender also

complained of the total absence of any specification of the identity of the persons making

complaints or any details of the date and times of the incidents relied on by the Council.

While I understand and appreciate the basis for the Council's policy of protecting the

anonymity of complainers there is a risk that someone in the position of the defender may

not be in a position properly to investigate and challenge the detail of complaints made

against him. One obvious example of this, pertinent in the present case, are the allegations

of antisocial behaviour within the lifts and common areas on the part of persons believed to

be visitors to the defender. In my view, standard considerations of fair notice should

include the dates and approximate times of any such incidents and possibly even

descriptions of the individuals believed to be associated with the defender. I do not

consider that it would be unreasonable to expect a local authority to lodge as productions

statements taken from those residents making complaints that have been redacted to protect

their identities but providing sufficient information so that a defender has proper notice of

the case against him.

[31]

Nothing of that nature was advanced in evidence. The Council were content to rest

their case on the hearsay evidence of CL and KM. As I have indicated I found both to be

credible and reliable in terms of the reports they received, but neither gave any significant

detail in relation to when and where the alleged incidents of antisocial conduct took place,

beyond the two incidents in September 2023. In relation to KM's evidence no explanation

was tendered as to why the conduct listed in his letter dated 27 October 2023 is markedly

more restrictive than what he said in evidence had been reported by complainers. The letter

does not refer to the complaints made of numerous visitors to the defender and the types of

antisocial conduct they engaged in. One explanation could be that the conduct referred to in

KM's letter is qualified as being from "recent (my emphasis) reports made to the

investigating officer".

[32]

The absence of chronological detail as to what has been complained of as antisocial

behaviour on the part of the defender also, in my view, has a bearing on the second leg of

the statutory test in relation to the necessity for and duration of any order. A consistent and

sustained pattern of conduct may well attract a longer period in order to promote

deterrence. On the other hand there will be cases where there might be isolated incidents of

varying seriousness over a period of time. No evidence was advanced to allow a view to be

formed as to where the present case might fall between these two scenarios. What does

emerge on the evidence is that there was some sort of escalation of antisocial behaviour on

the part of the defender in the period shortly preceding the events of September 2023. That

behaviour may have been linked to personal difficulties and addiction issues that the

defender was experiencing at the time. He has successfully obtained treatment and support

for those issues. There have been no reports of any further incidents since the beginning of

October 2023. As this was a good two months before the interim antisocial behaviour order

made in December 2023 I am inclined to accept in part the defender's position that it was not

only because of the existence of that order that he has desisted from any further

objectionable behaviour.

Decision and terms of order

[33]

For the reasons set out I do not consider that the necessity for a final order in the full

terms craved by the Council is appropriate or necessary. Accordingly the final order I

propose to make will be more restrictive than the interim order made on 6 December 2023,

which will now be recalled. In particular I have not been persuaded that it is appropriate or

necessary for a final order to contain the prohibitions set out in parts (ii), (iv) and (v) of the

interim order. Similarly, there is no basis in the evidence for the inclusion of "fighting"

within the prohibited conduct.

[34]

I also do not consider that it is necessary that a final order be for a particularly

lengthy period. No particular period has been craved by the Council. At the resumed

hearing on submissions the solicitor for the Council observed that in the case of Ferguson,

supra the court restricted the period of the final order for 6 months on the basis that there

had been an interim order in place for 9 months. He suggested that a similar approach

might be appropriate in the present case. I am inclined to agree except that I consider a

shorter period is more appropriate in the present case. Accordingly I shall make an order

for a period of 3 months from today's date.

Expenses

[35]

Both parties were agreed that whatever the outcome there should be a finding of no

expenses due to or by and accordingly that is reflected in the interlocutor I have

pronounced. Although an award of expenses was made in the interlocutor of 6 December

2023 granting the interim order, the solicitor for council confirmed, in my view

appropriately, that said award would not be enforced.