THE GLASGOW HOUSING ASSOCIATION LIMITED AGAINST ROBERT LILLEY ALSO KNOWN AS ROBERT LILY
SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
2015SCGLA54
SD898/14
JUDGMENT OF SHERIFF AISHA Y ANWAR
In the cause
THE GLASGOW HOUSING ASSOCIATION LIMTED
Pursuers
Against
ROBERT LILLEY also known as ROBERT LILY
Defender
Act: Ms Ross, Solicitor
Alt: Mr Jarvis, Solicitor
GLASGOW, 19 June 2015. The sheriff having resumed consideration of the cause, FINDS IN FACT:
(1) The pursuer is the heritable proprietor of the subjects at Flat A, 17 Calfhill Road, Glasgow G53 5YP (“the subjects”).
(2) On or around 26 November 2002, Glasgow City Council let the subjects to the defender in terms of a Scottish Secure Tenancy Agreement in accordance with Part 2, Chapter 1 of the Housing (Scotland) Act 2001 (“the tenancy agreement”).
(3) The defender’s occupation of the subjects commenced on 28 October 2002.
(4) On or around 7 March 2003, the pursuer became the heritable proprietor and landlord of the subjects by virtue of a Minute of Agreement between the pursuer and Glasgow City Council.
(5) The subjects comprise a flatted dwellinghouse within a tenement building. Families and single persons reside within the tenement building. The subjects are situated in a residential area. Elderly and young persons reside in the vicinity of the subjects.
(6) On 26 November 2010, police officers attended at an address in Kirkintilloch in possession of a search warrant in terms of section 23 of the Misuse of Drugs Act 1971 (“the 1971 Act”). The defender attended at the premises during the execution of the search warrant. Upon finding police officers there, the defender ran from the locus. He was caught and detained by the police. Three packages containing controlled substances were found on his person. A further nine packages were recovered from his motor vehicle. The defender consented to a search of the subjects. Controlled drugs and related paraphernalia were recovered from the subjects. In total, 380.5 grams of amphetamines with an estimated street value of £1,430 were recovered.
(7) The pursuer was notified by Strathclyde Police of the incident on 26 November 2010. By letter dated 21 February 2011, the pursuer invited the defender to an interview and advised him that if he was convicted of any charges relating to the supply of drugs from the subjects, the pursuer may take action to repossess the subjects.
(8) On 3 March 2011, the defender attended an interview with a member of the pursuer’s Neighbour Relations Team. During that interview, the defender signed a document confirming that he had been advised that in the event of his conviction under the 1971 Act, the pursuer may take action to repossess the subjects.
(9) On 19 October 2011, the defender pled guilty and was convicted on summary complaint of (i) a contravention of section 23(4)(b) of the 1971 Act and (ii) a contravention of section 4(3)(b) of the 1971 Act. The defender was made subject to a community service order with a requirement to undertake 250 hours of unpaid work in cumulo.
(10) On 25 October 2013, police officers attended at the subjects in possession of a search warrant. The following articles were recovered and seized from various locations within the living room: (a) a black box containing six re-sealable bags of white paste; (b) a paper wrap containing white powder; (c) sixty eight bags of white paste and (d) a box containing sealable polythene bags. £70 in mixed notes were found in the defender’s wallet. A black pouch containing five sealable bags of white paste was recovered from the defender’s motor vehicle. The substances recovered from the subjects and from the defender’s motor vehicle were analysed and found to be amphetamines with an estimated street value of £1,600. During the search of the subjects two individuals attended at the locus and provided statements to the police. They stated that they had attended in order to purchase controlled drugs. One of the individuals stated that she had purchased speed from the defender at the subjects every Friday for a number of months. During the search, the defender stated “That’s me fucked now”. He further stated “I do a wee bit here and there. Just trying to make an earner”.
(11) The defender was remanded in custody on 28 October 2013.
(12) On 13 November 2013, the defender was interviewed by members of the pursuer’s Neighbour Relations Team whilst on remand at HMP Barlinnie. During that interview, the defender signed a document confirming that he had been advised that in the event of his conviction under the 1971 Act, the pursuer may take action to repossess the subjects.
(13) By letter dated 14 November 2013, the pursuer advised the defender that if he were convicted of any charges relating to the supply of drugs from the subjects, the pursuer may take action to repossess the subjects.
(14) On 14 January 2014, the defender pled guilty and was convicted on indictment of a contravention of section 4(3)(b) of the 1971 Act. He was sentenced to a period of imprisonment of 14 months. The sentence was backdated to 28 October 2013.
(15) In so far as material, clause 2.7 of the tenancy agreement states that the defender must not inter alia use or allow the subjects to be used for illegal or immoral purposes including, but not limited to, dealing in controlled drugs; clause 3.1 of the tenancy agreement states that the defender must not harass or act in an anti-social manner towards or threaten with violence, or pursue a course of anti-social conduct against, any person in the neighbourhood or in the subjects; clause 3.2 of the tenancy agreement states that in particular, the defender must not act in an anti-social manner towards, or pursue a course of anti-social conduct against, any person in the neighbourhood by using the subjects or allowing it to be used for illegal or immoral purposes: and clause 3.4 of the tenancy agreement states that “anti-social” means “causing or likely to cause injury, harm, alarm, distress, nuisance or annoyance to any person or causing damage to anyone’s property”.
(16) The pursuer has not received any complaints from neighbouring tenants in relation to the circumstances leading to the defender’s convictions on 19 October 2011 or 14 January 2014.
(17) In terms of section 14 of the Housing (Scotland) Act 2001 (“the 2001 Act”), the pursuer has served on the defender a notice of proceedings for recovery of possession of heritable property.
FINDINGS IN FACT AND LAW:
(1) The defender having breached clauses 2.7, 3.1 and 3.2 of the tenancy agreement, the pursuer has a ground for recovery of possession of the subjects in terms of paragraph 1, part 1 of schedule 2 to the 2011 Act.
(2) The defender having been convicted of using the subjects for an illegal purpose et separatim having been convicted of offences punishable by imprisonment committed in the subjects, the pursuer has a ground for recovery of possession in terms of paragraph 2, part 1 of schedule 2 to the 2001 Act.
(3) The defender having acted in an anti-social manner in relation to persons residing in, visiting or otherwise engaging in lawful activity in the locality, the pursuer has a ground of recovery in terms of paragraph 7(1)(b) of part 1 of schedule 2 to the 2001 Act.
(4) It is reasonable to make an order for recovery of possession of the subjects, in terms of section 16(2)(a)(ii) of the 2001 Act.
THEREFORE, Grants decree as craved in favour of the pursuer.
NOTE:
Introduction
[1] This is an action for recovery of possession in terms of section 14 of the Housing (Scotland) Act 2001 (“the 2001 Act”).
[2] The pursuer is Glasgow Housing Association Limited. The defender is Mr Robert Lilley also known as Robert Lily. The parties are respectively the landlord and tenant of the subjects known as Flat A, 17 Calfhill Road, Glasgow G53 5YP.
[3] Parties are in agreement that the pursuer has grounds for recovery of possession of the subjects in terms of section 16(2)(a)(i) of the 2001 Act.
[4] Section 16(1) of the 2001 Act provides that:
“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”.
[5] Section 16(2) insofar as relevant, provides as follows:
“Subject to section (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 section14, and
(ii) it is reasonable to make the order”.
[6] The grounds relied upon by the pursuer are those set out in paragraphs 1, 2 and 7(1)(a) of Part 1 of Schedule 2 to the Act. Those are as follows:
“1. Rent lawfully due from the tenant has not been paid, or any other obligation of the tenancy has been broken.
2. The tenant (or anyone 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.
7(1) The tenant (or anyone of joint tenants (a person residing or lodging in the house with, or any subtenant of, the tenant, or a person visiting the house has –
- acted in an anti-social manner in relation to a person residing in, visiting or otherwise engaged in lawful activity in the locality…
and it is not reasonable in all the circumstances that the landlord should be required to make other accommodation available to the tenant.”
[7] The factual basis for recovery of possession is the same in relation to each of paragraphs 1, 2 and 7(1)(a) namely, the defender’s convictions on 19 October 2011 and 14 January 2014. The questions for my determination are (a) whether it is reasonable to grant the orders sought by the pursuers and (b) if so, whether I should exercise my discretion to adjourn the proceedings in terms of section 16(1) of the Act.
The evidence
[8] I heard evidence on 22 April 2015. I was helpfully provided with written submissions by parties on 3 June 2015. The pursuer was represented by Ms Ross. The defender was represented by Mr Jarvis.
[9] The pursuer led evidence from the following witnesses: (a) Jane McGrory, a Neighbour Relations Officer, employed by the pursuer; (b) Simon Curran, a Housing Officer, employed by the pursuer; and (c) Detective Constable Jay Doogan. The defender gave evidence. Evidence was also led from Dr Jeremy Stirling, a Consultant Psychiatrist, instructed on behalf of the defender.
[10] The parties had entered into a lengthy joint minute of admissions. In particular, the parties had agreed that the information contained within the documents lodged on behalf of the pursuer set out the unchallenged evidence. Those documents included two disclosure reports from police services which set out the background to each of the defender’s convictions. Accordingly, I set out the evidence only insofar as it is relevant to the matters upon which I require to make a determination and insofar as it is relevant to issues of reliability and credibility.
Evidence for the pursuer
DC Jay Doogan
[11] DC Doogan spoke to the police search of the subjects on 25 October 2013. In particular, he spoke to finding a large quantity of amphetamines weighing 482.7 grams with a street value of £1,600, within the subjects and within a motor vehicle belonging to the defender. He explained that during execution of the search warrant, the defender commented “That’s me fucked now” and then stated “I do a wee bit here and there. Just trying to make an earner”. DC Doogan spoke to two individuals attending at the subjects seeking to purchase amphetamines. Statements were taken from these individuals, one of whom stated that she had attended at the subjects each Friday over the last few months to purchase amphetamines. It was put to DC Doogan that the defender was simply packaging the drugs for a third party and had been coerced into doing so. DC Doogan confirmed that the defender made no such disclosures during the search or subsequent interview. He was also of the opinion that the locations in which the drugs were found were consistent with the supply of drugs from the subjects and from the defender’s motor vehicle. During cross-examination, DC Doogan confirmed that the defender cooperated throughout the search. DC Doogan agreed that he had not witnessed the sale of drugs from the subjects. He was asked whether, having only recovered a relatively low sum of money, it could be inferred that the defender was not in fact involved in selling drugs. He was of the view that no such inference could be drawn.
Simon Curran, Housing Officer
[12] Mr Curran is a Housing Officer employed by the pursuer. In his capacity as Housing Officer he has had responsibility for the defender’s tenancy for the last eight years. Mr Curran spoke to the pursuer’s policies with regard to tenants who may be involved in drugs related offences and to the role of the pursuer’s Neighbour Relations Team (“NRT”). He spoke to the discussions which had taken place between the Housing Officer, the Housing Manager and NRT staff in relation to this case, which involved an examination of the circumstances, the charges and the defender’s conduct. Mr Curran explained that the defender’s rent account was in arrears in a sum of £1,800, however, the rent arrears did not form the basis for the pursuer’s decision to proceed with an action for recovery of possession of the subjects; the basis for doing so was the defender’s conviction. Mr Curran spoke to the effect the presence of drugs can have upon the pursuer’s housing stock and upon other tenants. Mr Curran was unaware of any complaints of the defender’s conduct by neighbouring tenants. He explained however, that the absence of complaints in such situations was not uncommon. Neighbouring tenants may be unaware of drug related activities, may feel intimidated to speak out or may simply not wish to get involved. However, neighbouring tenants would expect the pursuer to take steps to remove a tenant involved in drug related activities.
[13] Mr Curran explained that in the event that an order for recovery of possession was granted, the defender would be offered advice and assistance by the pursuer’s Homeless Team. In particular, Glasgow City Council would offer the defender temporary accommodation for a period of 28 days. Thereafter, he would require to seek a tenancy with an alternative Housing Association, or a private let. He would be categorised as being intentionally homeless. Mr Curran was aware that the defender had a sister who lived in the area and a partner who also lived nearby.
[14] It was put to Mr Curran that the defender maintained that he had difficulty leaving the subjects. Mr Curran did not accept that that was the case. He explained that he had seen the defender, on at least a weekly basis, at a row of shops close to the subjects and had witnessed his car parked there. He did not demur from that position during cross examination. He spoke to having seen the defender inside a bookmaker’s premises situated among the row of shops he had referred to.
[15] During cross examination, Mr Curran accepted that since the police search carried out at the subjects on 25 October 2013, he had not been made aware of any further allegations involving the supply of controlled drugs by the defender. However, Mr Curran pointed out that the defender was sentenced to a period of imprisonment of 14 months and thus was not residing at the subjects during that period. Mr Curran also accepted that since the defender had been liberated, he had recommenced payments towards the rent arrears. Mr Curran was asked why the Housing Association had not placed the defender on a Short Scottish Secure Tenancy. Mr Curran explained that in light of the defender’s previous convictions, the pursuer had determined that eviction was the only appropriate course of action.
[16] Mr Curran was asked, during cross-examination, whether he was aware that the defender suffered from post-traumatic stress disorder. Mr Curran explained that he had been made aware of this very recently. He explained, however, that the pursuer continuously assessed the defender’s circumstances, including after these proceedings had been raised. The pursuer had formed the view that notwithstanding the defender’s diagnosis, it was appropriate and reasonable for the pursuer to seek an order for recovery of possession.
Jean McGrory, Neighbour Relations Officer
[17] Jean McGrory, a Neighbour Relations Officer, employed by the pursuer, spoke to the letters issued by the pursuer to the defender on 21 February 2011 and 14 November 2013, following notification to the pursuer by police services of the incidents on 26 November 2010 and 25 October 2013. Each letter warned the defender that if he were convicted of any charges relating to the supply of drugs from his tenancy, action may be taken to repossess the subjects. She spoke to the defender’s attendance at an interview on 3 March 2011 and to him signing a document entitled “Anti-Social Behaviour Interview” confirming that he had been advised at the interview that if convicted, the pursuer may proceed with legal action to repossess the subjects. Ms McGrory stated that following the defender’s conviction on 19 October 2011, the pursuer decided not to take any further action against him. Ms McGrory spoke to a further anti-social behaviour interview which took place at HMP Barlinnie on 13 November 2013, after the defender was remanded in custody following the incident on 25 October 2013. She testified that the defender was advised that if convicted, the pursuer may proceed with legal action to repossess the tenancy. A document was signed by the defender confirming the same. During his interview at HMP Barlinnie, Ms McGrory stated that the defender was asked if he had any drugs, alcohol or mental health issues. He admitted to being addicted to speed. She spoke to visiting the defender whilst in prison, a fortnight later. On this occasion, the defender had said to her: “You are nothing but a rat, you can’t take my house from me, I don’t want to speak to you”. At no point during her discussions with the defender, did he offer any explanation regarding the circumstances in which he was found to be in possession of drugs. In particular, he did not suggest that he had been coerced by third parties into packaging the drugs on their behalf.
[18] Ms McGrory spoke to the pursuer’s decision to raise these proceedings. She stated that the pursuer treated every case individually and considered all of the circumstances. She explained that the pursuer had given the defender an opportunity to be of good behaviour following his first conviction under the 1971 Act. The pursuer was now concerned about a pattern of behaviour which indicated that the defender either thought his actions were acceptable or believed that he would not be evicted. He had shown no remorse and did not appear to accept the gravity of the situation. She further stated that the pursuer wished to prevent drugs related activities in their communities. She explained that other residents wanted to live in a safe and secure environment and would not wish to have people attending at neighbouring properties to purchase drugs. She spoke to a number of children living in the vicinity of the subjects.
[19] During cross-examination, Ms McGrory accepted that she could not speak to any particular complaint made by a neighbouring tenant, that she was not aware of any further police reports relating to the subjects since October 2013, and that she was not in a position to dispute any assertion by the defender that he had remained drug free since his conviction in October 2013. She confirmed that the pursuer was advised by its legal advisers, that the defender had produced a report suggesting that he suffered from post-traumatic stress disorder. However, she stated that the defender had not made her aware that he was suffering from any ill-health as a result of an earlier accident at work.
The defender’s witnesses
Dr Jeremy Stirling, Consultant Psychiatrist
[20] Dr Jeremy Stirling, a Consultant Psychiatrist, gave evidence on behalf of the defender. He explained that his report dated 15 February 2015, had been compiled following an examination of the defender and after he had considered the defender’s general practitioner’s records. Dr Stirling spoke to being advised by the defender that an accident at work in 1995 had left the defender badly burned and permanently disfigured. The defender was treated in the Burns Unit at Glasgow Royal Infirmary for several weeks. He subsequently experienced a range of mental health symptoms which, in Dr Stirling’s opinion, were consistent with post-traumatic stress disorder. The defender had suffered a catastrophic life event, had intrusive memories of the event, was distressed when being reminded of the event, avoided triggers which could remind him of that event, was irritable, had sleep difficulties and experienced increased mental arousal. He explained that he had been advised by the defender that his symptoms had led to a loss of self-confidence and social withdrawal and that the defender avoided going out whenever possible, seeing his home as his sanctuary. The defender had advised Dr Stirling that presently he struggles to leave his home and relies upon friends who help him to get out and about.
[21] Dr Stirling described the defender as suffering from an untreated post-traumatic stress disorder. Whilst the defender was referred to a psychiatrist in 1995, he did not engage with him and failed to attend follow up appointments. Dr Stirling commented that he had not encountered a case involving symptoms of post-traumatic stress disorder which had persisted over such a long period, some 20 years, in this case. In his opinion, it was possible that the defender was using amphetamines as a form of self-medication.
[22] Dr Stirling was of the opinion that if the defender were to lose his tenancy of the subjects, it may increase his dependency upon drugs.
[23] During cross-examination, Dr Stirling was asked whether there was any information in the defender’s medical records to suggest that he was experiencing any on-going mental health symptoms. Dr Stirling confirmed that there was not. The defender had not sought any medical treatment. There had been no diagnosis of his condition. Dr Stirling confirmed that he had asked the defender to consider treatment for his symptoms, but that the defender was reluctant to do so. Dr Stirling was asked whether without treatment, the defender could relapse into drug use. Dr Stirling explained that he was aware that the defender had used controlled substances on one occasion since his release from prison and that his symptoms could trigger a relapse. He stated that the defender’s failure to treat his condition could affect his ability to refrain from drug use. He also stated that, in his opinion, if the defender had alternative accommodation in which he felt safe and secure, then, in the long term, it would be unlikely that the loss of his current tenancy would lead to a change in his mental health.
Robert Lilley known as Robert Lily
[24] The defender has held the tenancy for approximately 20 years. He has been unemployed since his workplace accident in 1995. The defender described the accident. He had been spray painting a fresh water tank on a boat, when the tank exploded whilst he was inside. He suffered 60% burns. He described feeling like he had “melted” after the accident, that he wanted to die, and that he still felt that way. He spoke to seeing a psychiatrist on one occasion after the accident and described attacking the psychiatrist having been upset when the psychiatrist suggested that he could empathise with him. He started using controlled substances not long after he was discharged from hospital following the accident. He became dependent upon drugs. His dependency caused him financial difficulties. He became involved in the supply of drugs to feed his habit.
[25] In relation to his conviction in October 2011, the defender maintained that he did not supply drugs from the subjects. He described selling drugs to people he knew at alternative locations. He stated that prior to his conviction in January 2014, he had been threatened by a drugs supplier to whom he owed the sum of £1,400. He described threats made to him and to his daughter by this supplier. He stated that he had refused to sell drugs on behalf of the supplier but agreed to “make them up” for him on one occasion only. He spoke to receiving the delivery of drugs from the unnamed supplier on the day the subjects were searched by the police. The defender described the claim that two unnamed persons had attended at the subjects to purchase drugs, during the police search, as “blatant lies”. He denied stating “that’s me fucked up” during the police search. He denied stating that he was “making an earner”. He stated that he was released from HMP Barlinnie in April 2014. He described using controlled substances two days after his release. He stated that he had not used controlled substances since.
[26] He spoke to his good relations with neighbouring tenants. In particular, he described a gentleman residing next door, who suffered from dementia and for whom, he placed a bet each Saturday at the bookmakers.
[27] In relation to alternative accommodation, the defender stated that he could not live with his daughter as she lives in a flat. He explained that his partner would want him to stay with her and would ask to him to do so, but that in his opinion, her house was too small. If he lost his tenancy, he explained that he did not know what he would do. He stated that he did not know how losing his tenancy may affect his mental health. He did not wish to lose his tenancy.
[28] During cross-examination, the defender stated that he pled guilty to offences under the 1971 Act on legal advice. He was asked whether he was aware of the pursuer’s policies regarding drug related activities. He stated that he was not and that during the interview with the pursuer’s NRT officers following his first conviction, he was “out of his head” on drugs and signed whatever he had been asked to sign. He was not aware that he could lose his tenancy if he was convicted of a similar offence again. When challenged on his evidence that the police had lied regarding two individuals having visited the subjects to purchase drugs, it was the defender’s position that the police had wanted him “jailed because I wouldn’t tell them who the supplier was”. When challenged in relation to the presence of drugs in his motor vehicle, the defender stated that he had taken some of the drugs and placed them in his jacket and in his car. He explained that when he was packaging the drugs, he stole some of them from the supplier. When asked whether it was reasonable for the pursuer to seek to evict someone who was dealing in drugs, the defender stated that he agreed 100% that other tenants “would not want the hassle” of drug dealing in the area.
Submissions
[29] Ms Ross and Mr Jarvis helpfully provided written submissions. I will not rehearse those in detail. There was no dispute between the parties as to the applicable law. Both agents referred me to the test of reasonableness as set out in section 16(2)(a)(ii) of the 2001 Act and to the matters to which the court must have regard in terms of 16(3) of the 2001 Act. Both agents referred to the four additional factors to which the court may have regard, set out in City of Glasgow Council v Lockhart 1997 Hous LR 99. Both agents addressed me on their interpretation of the evidence and invited me to consider issues of reliability and credibility of the witnesses.
[30] Additionally, Mr Jarvis submitted that section 16(1) of the 2001 Act conferred upon the court a wide discretion. The court could adjourn proceedings and impose conditions upon the parties when doing so. In light of the defender’s lengthy record as a good tenant and his stated intention to remain free of drugs, I was invited to consider adjourning the proceedings to allow him the opportunity to demonstrate that he could be of good behaviour. Alternatively, I was invited to consider making an order requiring the pursuer to grant the defender a Short Scottish Secure Tenancy or another suitable property from the pursuer’s housing stock.
Discussion
The applicable test
[31] The question of reasonableness requires to be determined by reference to the non-exhaustive list of factors set out in section 16(3) of the 2001 Act. Those are:
- the nature, frequency and duration of the conduct (section 16(3)(a));
- the extent to which that conduct is or was conduct of, or a consequence of acts or omissions of, persons other than the tenant (section 16(3)(b));
- the effect which that conduct has had, is having and is likely to have on any person other than the tenant (section 16(3)(c)) and;
- any action taken by the landlord, before raising the proceedings, with a view to securing the cessation of that conduct (section 16(3)(d)).
The legislation does not indicate the relative weight to be attached to each of these factors and each case will necessarily turn upon its own facts.
[32] In City of Glasgow Council v Lockhart 1997 Hous LR 99, Sheriff Targowski was persuaded to consider the evidence under four distinct headings. That approach has been applied subsequently in a number of cases, most notably, by Sheriff Principal B A Lockhart in South Lanarkshire Council v Nugent 2008 Hous LR 92 and also in South Lanarkshire Council v Gillespie 2012 Hous LR 45. Those headings are:
(a) the public interest;
(b) whether the defender was aware of the consequences of his actions;
(c) the gravity of the offence; and
(d) the consequences of removal.
[33] To some extent there is an obvious degree of overlap between these four distinct headings and the factors to which the court must have regard in terms of section 16(3). A consideration of the gravity of the offence will involve an examination of the nature, frequency and duration of the offending conduct; a consideration of the action taken by the landlord to secure the cessation of the offending conduct will involve an examination of whether the tenant had been made aware of the consequences of his actions; a consideration of the public interest will involve an examination of the effect the offending conduct has or is likely to have on any person other than the tenant.
[34] In my judgment, in determining the question of reasonableness, the court may also have regard to an additional factor, namely the nature of the mitigation offered by the defender either in relation to the circumstances giving rise to the criminal or anti-social behaviour or the defender’s current circumstances, or both. Where, in cases involving criminal or anti-social behaviour, the defender has shown genuine remorse, has a lengthy and otherwise unblemished tenancy record and there exists sufficiently persuasive reliable and credible evidence of the defender’s attempts to mend his ways, that is a matter to which, in my judgment, the court may properly have regard, both in relation to the question of reasonableness and in relation to whether to exercise its discretion to adjourn proceedings. The relative weight to be attached to this factor, however, will depend entirely upon the facts and circumstances of each case; notwithstanding the compelling nature of the evidence presented by the defender in mitigation, it may be appropriate, in light of the gravity of the offence or the effect the defender’s conduct has had or is likely to have on others, to grant an order for recovery of possession.
[35] The standard of proof in such cases, is of course, on the balance of probabilities. Where the conduct complained of relates to the circumstances giving rise to a conviction, the court is not restricted to an examination of the terms upon which the defender has pled guilty (South Lanarkshire Council v Nugent 2008 Hous LR 92, Sheriff Principal B A Lockhart at paragraph 38). The court is entitled to have regard to all of the evidence led.
Reliability and Credibility
[36] Before applying the test of reasonableness to the facts of the present case, it is necessary to comment upon matters of reliability and credibility of the witnesses. I had no difficulty in accepting Mr Curran and Ms McGrory’s evidence as reliable and credible. Both testified in a straightforward manner and had a good recollection of events. I did not form the impression that either of them were seeking to advance a particular position. Ms McGrory’s evidence was largely supported by the documents spoken to by her. Where Mr Curran or Ms McGrory’s evidence contradicted that of the defender’s, for reasons I explain below, I preferred their account of events.
[37] I accepted DC Jay Doogan’s evidence as reliable and credible. To a very large extent, DC Doogan’s evidence was supported by the content of the police disclosure of information report dated 14 April 2014. Importantly, the information contained within that report had been agreed between the parties as setting out the unchallenged evidence. That report detailed the recoveries made from the subjects during the police search on 25 October 2013, the statements made by the defender at the time of the search and the information obtained from the two individuals who attended at the subjects during the search. DC Doogan did not seek to embellish the contents of that report and again, his evidence was delivered in an honest and matter of fact manner. Where his evidence contradicted that of the defender’s, I preferred DC Doogan’s evidence.
[38] I had difficulty in accepting much of the evidence spoken to by the defender. He was aggressive and confrontational. His evidence lacked consistency and was, in my view, both exaggerated and at times clearly fabricated.
[39] The defender stated that he was unaware, after his first conviction, that the pursuer would seek recovery of possession of the subjects, yet (a) he signed the tenancy agreement which was written in plain language; (b) he received a letter from the pursuer’s warning him of the consequences of his actions on 21 February 2011; (c) he attended an interview on 3 March 2011 during which the pursuer’s position was explained to him; and (d) he signed a document confirming that to be the case. The defender claimed to have been under the influence of drugs during that interview, to the extent that he “would have signed anything”. I did not accept that explanation and I find it implausible that he could have been intoxicated to such a degree without the pursuer’s employees have noted the same.
[40] The defender claimed that the drugs found within the subjects on 25 October 2013 belonged to a supplier who had coerced the defender into packaging them. I found that explanation to be wholly unconvincing. The defender had had the opportunity of providing this explanation on at least five occasions (during the search, during the subsequent police interview, during the two interviews at HMP Barlinnie with Ms McGrory and during the subsequent court process). He did not do so. Further, he spoke to a process of negotiation with this unnamed supplier – according to the defender, the supplier had demanded that the defender sell drugs on his behalf, but the defender had agreed only to packaging them. The defender had asserted that the drugs found in his car were drugs which the defender had stolen from the unnamed supplier’s stock. On the one hand, the defender was inviting the court to conclude that he had been coerced and compelled by this supplier and was fearful of his safety and that of his family, yet on the other hand, he appeared to be able to negotiate with and steal from those who had threatened him. His explanation was entirely lacking in credibility. The true position, in my judgment, was that reflected in the statements he made to police officers during the search, namely that he did “A wee bit here and there. Just trying to make an earner”. That is also consistent with DC Doogan’s evidence that two individuals had attended the subjects wishing to purchase drugs during the police search.
[41] During his assessment with Dr Stirling, the defender claimed to have been unable to leave his home and described himself as being socially withdrawn and dependent upon the assistance of friends. Yet, during his evidence, the defender stated that he would attend regularly at the bookmakers to place bets for a neighbour who suffered from dementia. Mr Curran had, of course, also seen him at the bookmakers on at least a weekly basis.
[42] For these reasons and having assessed the defender’s demeanour and the hostile manner in which he gave his evidence, I have required to treat the defender’s evidence with a great deal of caution.
Is it reasonable to grant decree?
[43] Having carefully considered the evidence led and that agreed in terms of the Joint Minute between the parties, it is, in my judgment, reasonable to grant decree. I have reached that conclusion for the following reasons.
The nature, frequency and duration of the conduct in question and the gravity of the offence
[44] The defender has been convicted on two occasions of a very serious offence, namely, being concerned in the supply of a controlled drug. The drugs involved were amphetamines, a class B drug. On the both occasions, substantial quantities of drugs of a significant value were recovered from within the subjects. On the first occasion, the defender was sentenced to a community service order with 250 hours of unpaid work. On the second occasion, the defender was convicted on indictment and was sentenced to 14 months’ imprisonment. That sentence reflected the gravity of the offence and the defender’s previous analogous conviction. Whilst I was not provided with copies of the summary complaint or the indictment against the defender and thus cannot comment upon the duration or frequency of the conduct which formed the basis of the charges, in my judgment, two convictions within a relatively short interval disclose a pattern of behaviour. Furthermore, the defender was supplying drugs from the subjects to at least one individual, each Friday for a number of months, prior to the police search on 25 October 2015.
The extent to which the conduct is attributable to a third party
[45] No other person was involved in the supply of drugs from the subjects. The conduct complained of was solely attributable to the defender.
The effect the conduct has had or is likely to have on others and the public interest
[46] No witness spoke to any complaint having been made by any neighbouring tenants. Mr Curran and Ms McGrory testified that neighbouring residents can be fearful of making complaints or may be blind to the offending conduct. The defender spoke to his good relations with neighbouring residents.
[47] Mr Curran and McGrory spoke to the detrimental effects of drug trafficking upon the community more generally; it makes the area less desirable, can lead to other criminal conduct in the area, such as housebreakings, and attracts those involved in drug trafficking to the area.
[48] The building within which the subjects are situated houses families and single persons and included both the elderly and children. The defender accepted that they would not wish to have drugs related activities in the area.
[49] The effects of drug dealing upon communities is a matter which is within judicial knowledge (Shetland Islands Council v Hassan Hous. L.R. 107, Sheriff P Mann at paragraph 28). Sheriff S Reid has summarised those effects as follows:
“…drug use, production and dealing can have a serious detrimental impact upon the health and well-being of users, neighbouring residents, and the physical and social environment more generally: such drug use, production and dealing is associated with an increased incidence of criminality, disorder, danger to health, social breakdown and social blight: it sets a poor example of acceptable behaviour to children, and others, within the locality; it may constitute an enticement or encouragement to children, and others, in the locality to become involved in drug use or drug-related offending.” (Glasgow Housing Association Ltd v Stuart 2015 Hous LR 2 at paragraph 63).
Notwithstanding the lack of any complaint by neighbouring tenants, it is clear, in my judgment, that the defender’s conduct is likely to have a serious detrimental effect upon neighbouring residents. It is in the public interest that drug dealing is dealt with firmly.
Whether the defender was aware of the consequences of his actions and the action taken by the landlord with a view to securing the cessation of that conduct
[50] For the reasons I have explained above, I had no difficultly in concluding that the defender was fully aware of the consequences of his actions, particularly prior to the events leading to the police search of the subjects on 25 October 2013. He choose to ignore the repeated warnings given to him by the pursuer, in writing and verbally, during interviews with him.
[51] The pursuer had attempted to secure the cessation of the defender’s conduct by writing to him on two occasions, warning him of the consequences of his actions and by meeting with him on three occasions. Additionally, Ms McGrory spoke to having met with the defender at HMP Barlinnie on 13 November 2013 and having enquired into whether he had any alcohol or drug addiction issues, or any mental health issues. She did so with a view to referring the defender to appropriate services for support and assistance. The defender advised her that he had a drug addiction. As the defender was on remand at this time, Ms McGrory did not refer him to any services, being aware that he had access to services within the prison. At this stage, the defender had not been convicted. The pursuer was willing to provide the defender with support and assistance in the event of his subsequent acquittal, with a view to minimising the risk of the defender’s further involvement with drugs. However, matters were overtaken when the defender was convicted. The actions taken by the pursuer to secure the cessation of the defender’s offending conduct were not extensive; however, equally, the pursuer did not arbitrarily seek to exercise its right to seek recovery of possession of the subjects. Having considered the defender’s previous good behaviour as a tenant and the length of his occupation of the subjects, the pursuer had elected not to pursue an action for recovery of possession after the defender’s first conviction, allowing him the opportunity to demonstrate that he could refrain from the offending conduct.
The consequences of removal
[52] In the event of an order for recovery of possession being granted, the defender would be categorised as intentionally homeless by Glasgow City Council. Mr Curran explained that it was Glasgow City Council’s policy to offer temporary accommodation to those who were deemed to be intentionally homeless for a period of 28 days. Mr Curran acknowledged that other housing associations may be reluctant to provide the defender with accommodation and that the defender may struggle to finance accommodation in the private sector.
[53] The defender acknowledged that his partner would wish him to reside with her. He was of the opinion however that her property was too small.
[54] There is no doubt that the consequences for the defender, if an order for recovery of possession were to be granted, would be significant and life-changing, particularly in light of the length of time over which he has enjoyed occupancy of the subjects.
[55] Dr Stirling spoke to the effects upon the defender if he were required to vacate the subjects. He offered the opinion that the defender’s mental health would deteriorate significantly. Dr Stirling explained that the defender viewed his home as providing him with some sanctuary from the symptoms of his illness, without which he was likely to feel more vulnerable, more anxious and more emotionally fragile.
[56] I regret that I have required to treat Dr Stirling’s evidence with considerable caution. Dr Stirling diagnosed the defender as suffering from post-traumatic stress disorder. I do not doubt that this may be the case. However, Dr Stirling has based his assessment as to (a) the effect of PTSD upon the defender; and (b) the extent of the defender’s symptoms, entirely upon information provided to him by the defender. The defender’s medical records did not disclose any diagnosis for mental health issues nor regular attendance for medical intervention or treatment (with the exception of a referral to a psychiatrist shortly after the defender’s workplace accident in 1995). Standing my assessment of the reliability and credibility of the defender’s evidence, without a means of independent support for his position, I am not prepared to accept that the defender’s symptoms exist to the extent described by him. I found no independent support for the defender’s position. To the contrary, there was clear evidence before me, both from Mr Curran and from the defender himself, that his symptoms of social withdrawal had been exaggerated. Additionally, the defender claimed never to have sold drugs from the subjects and stated that he preferred to sell from other locations. Drugs were recovered from within his motor vehicle. He was, by his own admission, able to overcome his symptoms of social withdrawal for financial gain, if those symptoms indeed existed to the extent he claimed.
The nature of the evidence in mitigation
[57] The workplace accident spoken to by the defender was a very serious incident in his life. I have no doubt that it was a traumatic event and that it led to the defender sustaining substantial and serious burns. It is an incident he is unlikely ever to forget. However, while the defender may indeed suffer from PTSD, for the reasons I have set out above, in my judgment, on balance, the symptoms were exaggerated. I note that the defender had not sought any assistance nor a formal diagnosis prior to these proceedings being raised. He had declined the services of a psychiatrist shortly after the accident. Dr Stirling noted in his report that the defender was "ambivalent about future treatment based on his previous bad experience of a psychiatrist”. During his evidence, the defender steadfastly refused to undergo any form of treatment. That position, in my judgment, further undermines his description of his symptoms.
[58] The defender spoke of his determination to be free of drugs. He stated that since his release from prison, he had only used illicit substances on one occasion. Standing my assessment of the defender’s reliability and credibility, there is insufficient evidence before me to conclude that the defender is indeed a reformed character. The absence of a contradictor to the defender’s assertion does not compel the court to accept the defender’s stated good intentions where there is sufficient doubt otherwise in relation to the veracity of the defender’s evidence (South Lanarkshire Council v Nugent at paragraph 41). There was no independent means of verifying the defender’s good intentions, such as a drugs test report or a report from an addiction service. In a situation such as the present, where a tenant has been convicted not once, but twice, of offences under the 1971 Act, it is, in my judgment, incumbent upon him to provide an independent means of support for his assertion that he has mended his ways. Moreover, even if I were to accept that the defender’s stated good intentions were genuinely expressed, Dr Stirling was of the opinion that in the absence of treatment for his PTSD, the defender was more likely to relapse into drug use. In my judgment, in the circumstances of this case, the pursuer cannot reasonably be required to accept that risk.
Conclusion
[59] Taking account of the foregoing, in my judgment it is reasonable to grant decree in favour of the pursuer. I have carefully considered the evidence and have taken account of all of the circumstances affecting the interests of both parties. I have taken account of the possible hardship which may befall the defender and the interests of the public. I have been persuaded that it is appropriate to grant the pursuer the remedy sought. Having regard to my assessment of the defender’s evidence, I do not regard it appropriate to adjourn the proceedings to allow the defender to demonstrate that he can refrain from drug related activities.
[60] Finally, in relation to the argument advanced by the defender that I should require the pursuer to grant the defender a Short Scottish Secure Tenancy or another suitable property from the pursuer’s housing stock, I am not persuaded that it is either appropriate or competent for the court to do so. I respectfully agree with the comments of Sheriff P Mann in Shetland Islands Council v Hassan 2012 Hous LR 107 (at paragraph 27). Section 16(2) of the 2001 Act requires the court to grant decree if it is reasonable to do so. The court is not required to consider whether or not the granting of the order is one of, or the best of, several reasonable courses of action. If it is reasonable to grant the order, the court is required to do so, unless in the exercise of the discretion conferred by section 16(1), it decides to adjourn proceedings.
[61] The court may adjourn proceedings with or without imposing conditions “as to payment of outstanding rent or otherwise”. It is clear from the language used in section 16(1) that any such conditions are directed towards regulating the defender’s conduct. I can see no basis for an interpretation which requires the court to compel any action on the part of the pursuer. I found no support for that proposition in the cases to which I was referred by the defender, namely, Glasgow Housing Association v Hetherington 2009 SLT (Sh Ct) 64 and Glasgow Housing Association v O’Neill 2012, unreported.