Application For A Closure Order In Respect Of Premises At 174 Elgin Drive, Glenrothes, Fife
| Jurisdiction | Scotland |
| Judge | Sheriff W. Holligan |
| Court | Sheriff Court |
| Date | 12 October 2007 |
| Docket Number | B407/07 |
| Published date | 31 October 2007 |
| Case Reference Number: | B407/07 |
in an application for a Closure Order
in respect of premises at
174 Elgin Drive, Glenrothes, Fife
KIRKCALDY 12th October 2007. The sheriff, having heard counsel for the applicant and for the respondent and, having heard evidence, being satisfied that the conditions set out in section 30(2) of the Antisocial Behaviour etc. (Scotland) Act 2004 ("the 2004 Act") are met and having regard to the matters set out in section 30(3) of the 2004 Act, MAKES an order under section 29 of the 2004 Act that the premises at 174 Elgin Drive, Glenrothes, Fife, being the end terraced dwelling house together with garden ground shown delineated in black, coloured red and marked "174" on Plan 1 enclosed with the application are, subject to section 31 of the 2004 Act and the reservations hereinafter prescribed, closed to all persons for a period of three months from the date hereof, RESERVING to Fife Council as heritable proprietor, and any persons acting on their behalf, a right of access to the dwelling house and garden ground; and to Lynsey McEwan, with the consent of Fife Constabulary, and on such terms as they consider reasonable, a right of access to the premises to remove her personal belongings; and directs intimation of this interlocutor by the applicant to Lynsey McEwan and by posting a copy thereof at a prominent place at the premises at 174 Elgin Drive, Fife; certifies the cause as suitable for the employment of junior counsel; finds no expenses due to or by either party.
NOTE
[1] This is an application brought pursuant to Part 4 of the Antisocial Behaviour Etc. (Scotland) Act 2004 ("the 2004 Act") in which a Superintendent of Fife Constabulary seeks a Closure Order in relation to premises at 174 Elgin Drive, Glenrothes, Fife ("the premises"). The application first called before me on 14 September 2007. I postponed determination of the application until Thursday 20 September at which point the solicitor for the respondent in this case, Lynsey McEwan, lodged a Minute which, in summary, stated that sections 26-30 of the 2004 Act were outwith the legislative competence of the Scottish Parliament pursuant to section 29(2)(d) of the Scotland Act 1998 in that they were not compatible with Articles 6 and 8 of the European Convention on Human Rights ("the Convention"). Having regard to the short timetable prescribed by the 2004 Act (upon which I will comment further) I adjourned the matter until 21 September for intimation of the Minute. The case was then continued until 25 September. On that day counsel appeared for the applicant, the respondent and the Lord Advocate. By agreement, the Devolution Minute was dropped. I heard evidence on 25th and, again, on 27 September 2007, at which point I made avizandum, having stated to the parties that I would endeavour to issue a judgment in this matter no later than 12 October.
[2] As became apparent during the conduct of the hearing before me, Part 4 of the 2004 Act is closely modelled upon Part 1 of the Antisocial Behaviour Act 2003 ("the 2003 Act"), an Act of the United Kingdom Parliament which does not apply to Scotland. I mention this because I was referred to a number of English authorities which deal with issues similar to those raised by the present case. The procedure laid out in Part 4 of the 2004 Act is as follows. Section 26 grants to a senior police officer a power to authorise the service of a Closure Notice prohibiting access to premises by any person other than, inter alia, the person who habitually resides in the premises. Authorisation of such a notice may only be made if the conditions prescribed in section 26(3) of the 2004 Act are satisfied. The notice then requires to be served and an application must be made to the sheriff. Section 28(3) provides that the application shall be made no later than the first court day after the day on which service of the Closure Notice has been made. Section 28(5) provides that an application shall:
"(a) specify the premises in respect of which the Closure Order is sought;
(b) state the grounds on which the application is made; and
(c) be accompanied by such supporting evidence (whether in documentary form or otherwise) as will enable the sheriff to determine the application."
The relevant parts of section 30 are as follows:
"(1) On an application under section 28, the sheriff may, if satisfied that the conditions in sub-section (2) are met, make a Closure Order in respect of premises.
(2) Those conditions are -
(a) that a person has engaged in antisocial behaviour on the premises;
(b) that the use of the premises is associated with the occurrence of relevant harm; and
(c) that the making of the Order is necessary to prevent the occurrence of such relevant harm for the period specified in the Order.
(3) The sheriff shall, in determining whether to make a Closure Order in respect of premises, have regard to:
(a) the ability of any person who habitually resides in the premises to find alternative accommodation; and
(b) any vulnerability of any person such as is mentioned in paragraph (a) who has not been engaged in antisocial behaviour which has occurred on the premises.
(4) Subject to sub-section (5), a sheriff shall determine an application under section 28 no later than the second court day after the day in which the application is made.
(5) The sheriff may postpone determination of the application for a period of not more than 14 days to enable a person mentioned in sub-section (6) to show why a Closure Order should not be made.
...
(7) Where, under sub-section (5) the sheriff postpones determination of an application, the sheriff may order that the Closure Notice upon which the application proceeds shall continue in effect until the determination of the application."
"Relevant harm" is defined in section 40 as meaning:
"(a) significant and persistent disorder; or
(b) significant, persistent and serious nuisance to members of the public."
"Antisocial behaviour" is defined in section 143 in the following terms:
"(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."
[3] Part XXVII of the Summary Applications Rules, and in particular, Rule 3.27.6 and 3.27.7, together with the forms relative thereto, establish certain procedures for dealing with applications pursuant to Part 4 of the 2004 Act. Beyond that there are no rules dealing with a situation such as the present when the application is opposed. There is no provision for answers nor any procedure specified for any hearing.
[4] Lodged in process is an application which has annexed to it six appendices described as follows:
Appendix A - maps and photographs
Appendix B - pending standard police reports
Appendix C - storm call cards
Appendix D - witness statements
Appendix E - councillor emails
Appendix F - housing investigation team summary re 121 Elgin Drive
In addition to the material to which I have referred, I heard evidence from PC Gary Kenhard and Lynsey McEwan. Both witnesses were cross-examined.
[5] There is no dispute that the premises comprise a property owned by Fife Council. The respondent is the tenant thereof. The premises comprise an end terraced two-storey dwelling house in a residential street in the Tanshall district of Glenrothes. The premises include a front and back garden to which there is access from the street. On the ground floor there is a living room and kitchen. Upstairs there are two bedrooms and a bathroom.
[6] PC Kenhard went through the various parts of the application and, where appropriate, explained the information and where it came from. I have no difficulty in accepting PC Kenhard as a credible and reliable witness. In summary, PC Kenhard's evidence was as follows. He is a community officer and has obtained information about the premises and what happens thereat from a number of residents and other sources. According to his information the respondent has two children who do not live with her. A Merle Carr did live with the respondent, although Carr was not named as a tenant. In short, there have been consistent and persistent complaints about the premises and the nuisance to neighbours caused by their use. The only time the local residents obtained any respite was when either the respondent and/or Carr were in custody. It was said the premises were being used for selling drugs. The premises were constantly being visited by persons, both day and night, for the purchase of drugs. Witnesses had spoken to seeing persons injecting themselves in the street. PC Kenhard had personally dealt with a young person who had taken a drug overdose at or about the premises. This behaviour had happened since the respondent had taken up residence in or about March 2004 and was, at least, ongoing for a period of three months prior to the date of the hearing itself. Persons calling at the premises were described as "scruffy, unkempt, thin, gaunt, degenerate and drug addict looking". Some of the persons in the vicinity were known to have reputations for violence and witnesses were afraid for their own safety and that there would be retribution if they came forward and gave evidence. The number of callers per day ranged from 39 to 5. Residents were deeply upset and concerned. They had witnessed many persons under the influence of drugs. So far as PC Kenhard was aware the premises were the only premises in the vicinity being used for selling drugs. He had spoken to 10 householders personally who had all given him similar reports. PC Kenhard explained that the storm cards recorded reports made to the...
To continue reading
Request your trial