Hamilton sheriff dismisses eviction action against convicted drug dealer as ECHR-disproportionate

About this case:

• Citation:
  [2025] SC HAM 12
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff J Speir

East Kilbride Housing Association raised the action against its tenant T, who resisted the eviction as disproportionate in terms of Article 8 ECHR. It was argued that his eviction would not fulfil the process of the streamlined eviction process, which the pursuers contended was aimed at evicting drug dealers.

The case was heard by Sheriff John Speir in Hamilton Sheriff Court. Kelly, solicitor, appeared for the pursuers and E Young from the Hamilton Citizens Advice Bureau appeared for the defender.

Significant risk

The defender’s tenancy commenced in 2002. In December 2021 he was convicted of an offence of being concerned in the supply of controlled drugs, namely heroin and cocaine with a combined street value of around £41,500. He was sentenced to a 12-month Restriction of Liberty Order and an 18-month Drug Treatment and Testing Order in February 2022, with the recovery of possession proceedings commencing the following month after notice was served in January.

Evidence was given by Andrew Young, the chief executive of the pursuers, who considered that ultimately he had little choice but to seek eviction given the pursuers’ strict anti-drug policy. In relation to the possibility of converting the defender’s Scottish Secure Tenancy to a short tenancy he was concerned as to the impact on the defender’s neighbours if in fact the defender did not consent to such a conversion, although he did not raise the matter with the defender.

The defender gave evidence that he was uncertain what his future would hold if he were evicted, but he considered the most likely outcome was being placed in a homeless hostel where he would be more likely to encounter drug users and drug dealers. His DTTO officer stated that the defender was well motivated to make lifestyle changes and had made better than average progress at overcoming his drug problem.

For the pursuers it was submitted that the streamlined eviction procedure was intended to deal with convicted drug dealers such as the defender. Examples were given of cases where decisions by housing authorities to raise eviction proceedings in cases involving drug dealing had been determined to be reasonable. It was not open to the court to speculate on whether the defender would be rehoused under homelessness legislation.

The defender’s representative submitted that it was appropriate to consider options other than eviction. No problems with the defender had been reported since the imposition of the DTTO and ROLO. There was a significant risk to the defender in terms of his rehabilitation and health if he were made homeless at this point. 

Rehabilitation will fail

In his decision, Sheriff Speir considered that the case was arguable, saying: “It is incontrovertible that the streamline procedure was introduced in order to strengthen the hand of housing authorities to secure more expeditious evictions in cases involving anti-social behaviour or criminal behaviour, in particular drug dealing. It not axiomatic, however, that that will be the outcome in every case as this procedure does not override other rights and the measures to address and control such behaviour require to be proportionate in terms of article 8.”

He continued: “The assessment of proportionality therefore requires a determination of whether the outcome sought was required in order to meet the objective of a legitimate aim of the local authority as balanced against the impact of that on the tenant, having regard to the right or rights held by them and their particular circumstances, and the availability of alternative less onerous measures.”

Considering whether a less severe measure was appropriate here, Sheriff Speir said: “It appears plain that the dominant and overriding consideration of the pursuers in deciding to proceed with the streamlined procedure was the seriousness of the defender’s conduct. While this is of course an important factor, as is clear from the guidance, it does require to be considered alongside any other relevant factor or circumstances. I formed the impression on the evidence that the pursuers’ approach in this case ran contrary to the admonition contained in in [government guidance] that there was no specific offence which mandated the use of that process without regard to other factors.”

He concluded: “I wholly accept the evidence as to the very significant risk that the defender’s rehabilitation into society will fail if he loses the security of his current accommodation. That would be not only to his own significant detriment but also to society and most likely the local community he is currently part of standing that his parents continue to reside there. The foregoing factors have persuaded me that an order to evict the defender from the only home he has known in his adult life would be disproportionate to his rights.”

The sheriff therefore refused the pursuers’ crave for recovery of possession and dismissed the action.