SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT ABERDEEN

B905/05

Act: Mr Steven Inglis, solicitor, Aberdeen City Council

Alt: Mr A G Kay, solicitor, Kay & Co, Aberdeen

Aberdeen: 8^th November 2006

The sheriff principal, having resumed consideration of the cause, refuses the appeal and adheres to the interlocutor of the sheriff dated 19 December 2005; finds no expenses due to or by either of the parties in respect of the appeal; quoad ultra remits the cause to the sheriff to proceed as accords.

Note

[1] Section 4(1) of the Antisocial Behaviour etc. (Scotland) Act 2004 provides that on the application of a relevant authority the sheriff may, if satisfied that the conditions mentioned in sub-section 2 are met as respects the person to whom the application relates (the "specified person"), make an antisocial behaviour order. The conditions mentioned in section 4(2) 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.

Section 7(2) of the Act provides that a sheriff may make an interim antisocial behaviour order if he is satisfied -

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

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

(c) that the making of an interim antisocial behaviour order (an "interim order") is necessary for the purpose mentioned in paragraph (c) of that section.

[2] In this case the sheriff by interlocutor dated 19 December 2005 made an interim antisocial behaviour order against the defender and appellant in terms of section 7 of the Act. It is this interlocutor which is the subject of the present appeal. In the note of appeal which was lodged on behalf of the defender the grounds of appeal were stated as follows:

In his interim judgement given on 19 December 2005 in the above case the Sheriff (a) erred in law by considering the necessity for the interim orders sought on the civil scale of the balance of convenience, whereas as the penalties for the appellant breaching any of the interim orders are criminal in nature, so the proper test used to ascertain whether the orders sought were indeed necessary should have been the criminal test of beyond reasonable doubt, or at least a very high standard and not that of the balance of convenience, (b) failed to consider whether all the orders sought by the pursuer were absolutely necessary.

[3] Following the lodging of the note of appeal the sheriff prepared a very clear and thorough note in support of his interlocutor dated 19 December 2005. It is unnecessary to set this out in full here. In short, he explained that in deciding whether or not to grant an interim antisocial behaviour order against the defender he had approached the issue in two stages. In the first stage he had applied his mind to the question whether or not he was satisfied of the three matters referred to in section 7(2). And in the second place, having decided that he was so satisfied, he had considered whether or not in the exercise of his discretion he should grant an interim antisocial behaviour order. With reference to condition (a) in section 7(2), it was not in dispute that the defender was at least 12 years of age. As for condition (b), the sheriff noted that at the stage of an interim order being sought the requirement was that he should be satisfied that prima facie this condition was met. He stated that this was the standard which he had applied and he went on to observe: "Standing the clear direction contained in the statute I was not entitled to apply any other test". Having then considered the pleadings in the initial writ and the contents of an affidavit by an employee of the pursuers and respondents, he explained that he had been satisfied on a prima facie basis that the defender had indeed engaged in antisocial behaviour towards a relevant person (namely the complainers mentioned in the initial writ and the affidavit). Finally the sheriff noted that he had also been satisfied with reference to condition (c) that the making of an interim antisocial behaviour order was necessary.

[4] Turning to the second stage, the sheriff noted that he had decided that "the well known test of balance of convenience" was an appropriate test to use in determining whether or not to exercise his discretion in favour of granting an interim order. He then explained the various factors which he had taken into account in exercising his discretion as he did.

[5] Opening the appeal, the defender's solicitor drew attention to the criminal sanctions that might follow from the breach of an interim antisocial behaviour order. In light of these he submitted that, when a sheriff was considering whether or not to grant such an order, he ought to base his decision on a greater test than that of the balance of convenience. He suggested that this greater test might be the criminal test of beyond reasonable doubt or certainly a higher test than the balance of convenience. He submitted that the sheriff had erred in applying this last test when he should have applied a higher standard. He referred to Glasgow Housing Association v O'Donnell 2004 HousLR 78 and Glasgow Housing Association v Sharkey 2004 HousLR 130. He recognised that these two decisions had turned upon the terms of section 19(2A) of the Crime and Disorder Act 1998 which had been introduced by section 44 of the Criminal Justice (Scotland) Act 2003. He accepted that the authorities were vague on what the higher standard which he proposed should be, but he reiterated that it should not be the test of balance of convenience.

[6] It should be noted that, as I understood him, the defender's solicitor did not seek to advance any separate argument in support of ground of appeal (b) in the note of appeal.

[7] In response, the pursuers' solicitor submitted in short that the sheriff had not erred in law and that he had exercised his discretion in a careful and considered manner and had been entitled to make an interim antisocial behaviour order against the defender. In considering section 7(2)(b) of the Act, it made no sense to import a particular standard of proof such as proof beyond reasonable doubt. The sheriff merely had to be satisfied that prima facie the condition mentioned in section 4(2)(b) had been met. As for the manner in which he had exercised his discretion at the second stage, he had been entitled to conclude that the test of balance of convenience was an appropriate one to apply in the circumstances, and in any event it was clear that he had taken into account the various important factors which had been put before him at the hearing on 19 December 2005. There was nothing in the Act which indicated that a criminal or other higher standard of proof ought to apply at any stage of the sheriff's consideration whether or not to make an interim antisocial behaviour order.

[8] In addition to the two cases already mentioned, the pursuers' solicitor referred to Mullan v Anderson 1993 SLT 835 and City of Edinburgh Council v Gibson 2006 SLT (Sh.Ct.) 49.

[9] In my opinion the sheriff was quite right not to apply the criminal standard of proof beyond reasonable doubt in deciding whether or not to grant an interim antisocial behaviour order against the defender. It was not disputed that he had correctly considered the matter in two stages. In the first of these stages he had to decide whether or not he was satisfied of the three matters referred to in paragraphs (a), (b) and (c) of section 7(2). As already indicated, it was not in dispute that the condition in paragraph (a) was met. As for paragraph (b), the sheriff had to be satisfied that prima facie the condition in question was met. This means in my opinion no more and no less than what it says. In particular it does not mean that the sheriff has to apply any particular standard of proof, least of all the standard of proof beyond reasonable doubt.

[10] As for paragraph (c) of section 7(2), to borrow the language of Lord Steyn in R (on the application of McCann) v Crown Court at Manchester 2003 1AC 787 at paragraph [37], this "does not involve a standard of proof: it is an exercise of judgement or evaluation" - see also Sheriff Principal Bowen QC in Glasgow Housing Association v Sharkey at paragraph [13] of his judgement.

[11] This last observation is true also of the second stage which the sheriff had to consider, namely whether or not in the exercise of his discretion he should make an interim antisocial behaviour order against the defender. Here too there is no question of the sheriff having had to apply a particular standard of proof such as proof beyond reasonable doubt. As already noted, the sheriff explained that at this stage he had applied the test of balance of convenience. With respect to him, I am not sure that I should have put it in quite this way. The test of balance of convenience is a familiar one in the context of deciding whether or not to grant an interim interdict. But in other situations in which a sheriff has to exercise a discretion, as the sheriff did in this case, I think that it is perhaps preferable to approach the matter by reference to the grounds upon which an appeal court might be entitled to interfere with the decision of a sheriff made in the exercise of a discretion. These grounds are conveniently summarised in Macphail's Sheriff Court Practice (2^nd Edn) at paragraph 18.111. In short, I think it is plain from what is said there that, in exercising a discretion, a sheriff must (a) direct himself correctly in law, (b) understand the material facts correctly, (c) take into account all the relevant considerations that are put before him, (d) leave out of account any irrelevant considerations, and (e) reach a reasonable decision. Then, if and when he comes to set out in writing the reasons for his decision, he must demonstrate that he has satisfied these five steps.

[12] Although he described himself as having applied the test of balance of convenience, it is plain from what he said in his note that the sheriff did in fact take into account a variety of relevant considerations. It was not suggested that he had left out of account any such considerations, or that he had misapprehended the material facts or wrongly taken into account any irrelevant considerations. His decision appears to me to have been perfectly reasonable and in these circumstances I am quite satisfied that there are no grounds upon which I might interfere with his decision to grant an interim antisocial behaviour order against the defender. Indeed, I will go further and say that in my opinion he was quite right to do so.

[13] It was agreed that no expenses should be found due to or by either of the parties whatever the outcome of the appeal.