Hamilton sheriff grants recovery of possession order against council tenant whose son was convicted of drug dealing

About this case:

• Citation:
  [2022] SC HAM 26
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff J Speir

North Lanarkshire Council sought the order under section 14 of the Housing (Scotland) Act 2001 against tenant Lynsey Kelly. The defender argued that such an order would constitute a disproportionate interference with her rights under articles 8(1) and 8(2) of the ECHR.

The case was heard by Sheriff John Speir. D Anderson, advocate, appeared for the pursuer and Byrne, advocate, for the defender.

Convictions and imprisonment

The pursuer and the defender entered into a Scottish Secure Tenancy Agreement of subjects in Bellshill in March 2010. On 22 November 2017 the property was attended by officers of Police Scotland executing a Misuse of Drugs Act search. In the bedroom of the defender’s son, Phil Kelly, the police found 3783g of cannabis resin, 728g of herbal cannabis, and around 49,000 pills containing etizolam or “street valium”, with a combined estimated value of £38,050.

Mr Kelly was convicted of four charges of being concerned in the supply of a controlled drug in August 2018 and sentenced to two years and three months’ imprisonment. The defender later served the defender a Notice of Proceedings for Recovery of Possession in June 2019 based on the facts and circumstances of her son’s convictions and imprisonment.

In evidence, the defender maintained that she did not know that her son was involved in the supply of drugs, as she did not enter his bedroom, which he had put a lock on. She stated that her mental health problems had prevented her from leaving the house except for appointments for four years and, even then, she required to be accompanied. The defender had once been admitted to hospital following a suicide attempt, however this was attributed to her being under the influence of alcohol.

Counsel for the pursuer submitted that there was a qualifying ground for recovery in terms of the “streamlined procedure” contained in section 16(2)(aa) of the 2001 Act. While Mr Kelly’s conviction preceded the coming into force of this procedure, the legal character of his prior offending had not changed. In respect of the ECHR, the pursuer’s legitimate objectives in the present case justified interference with the defender’s protected rights.

Serious offences

In his decision, Sheriff Speir said of the credibility of the defender’s evidence: “In the circumstances, I consider it inconceivable that she was not aware of her son’s activities. This is not a large house. The defender would have had to pass her son’s bedroom every time that she used the toilet, went down to the kitchen to get some food or to go to her living room to smoke cigarettes. The police reported a strong smell of cannabis when they were executing the warrant and the defender was aware of what cannabis smelled like.”

He continued: “I do not accept her account that she was simply unaware of what was going on because of her mental health problems and the drugs she was taking therefor. As Mr Anderson observed in his submissions there was no opinion evidence offered from a suitably qualified person to support what the defender claimed to be her cognisance of lack thereof of what was happening in close proximity to her in her home.”

On whether the streamlined procedure could be used in respect of criminal convictions prior to its coming into force, the sheriff said: “It is a flawed proposition to characterise the criminal conduct of Phil Kelly prior to [the coming into force of the procedure in May 2018] as an accrued right held by the defender. That provision strikes at convictions not conduct. The conviction in consequence of Phil Kelly’s conduct was in August 2018 subsequent to the provision coming into force. To re-purpose an old legal metaphor the presumption against retrospectivity should be considered as a shield not a sword. The defender’s argument tends to subvert that proposition and accordingly I reject it.”

Turning to the ECHR, Sheriff Speir said: “I am satisfied that the pursuer is pursuing the legitimate twin objectives of vindication of its property rights and management and allocation of its housing stock. As part of that management exercise it is in my view reasonable and appropriate to consider the need to protect other tenants and the community from the corrosive and destructive effects of drug dealing.”

He concluded: “The pursuit of those objectives in the present case are clearly causally connected to the criminal conduct and convictions of Phil Kelly. I am satisfied that there was no less intrusive measure available. If the complaint had been one of the personal consumption of cannabis then a warning might have been appropriate. The present case however involved serious drug offences. The nature, scale and duration of those offences, which in terms of the libel and conviction extended back to 2015, place a significant weight on the scales of proportionality favouring granting the order for repossession.”

Decree was therefore granted in favour of the pursuer.