Hamilton sheriff imposes three-month antisocial behaviour order on noisy council tenant

About this case:

• Citation:
  [2024] SC HAM 54
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff J Speir

South Lanarkshire Council applied for an order in respect of defender Andrew Cunningham based on his behaviour towards his neighbours at Clyde Tower in East Kilbride, where he had been a tenant since 2020, and towards the council’s staff. An interim order, unopposed by the defender, had previously been made in December 2023.

The case was heard by Sheriff John Speir at Hamilton Sheriff Court. The pursuer was represented by Mr Cox, solicitor, while the defender appeared as a party litigant.

Punch in the face

Evidence from the pursuer’s housing services manager CL demonstrated that, prior to September 2023, six complaints from different complainers had been made about the defender detailing loud music, excessive noise, kicking of doors, and threatening behaviour towards another resident. The concerns about the defender’s behaviour were compounded when he made an abusive phone call towards M, another member of the defender’s housing team.

Shortly before the phone call, CL had attended a meeting of residents at Clyde Tower at which complaints were made that the council was not addressing the reports of antisocial behaviour. Following that meeting M sent a letter to the defender intimating an intention to inspect his property and discuss tenancy-related matters. The following day, in response to that letter, the threatening phone call was made, with a recording made of the conversation, in which he said it would “kick off” and he would punch M in the face if she came to his property

Giving evidence on his own behalf, the defender asserted that there was no definitive evidence against him and suggested that other tenants were making up stories about him. Since October 2023 he had successfully undergone detoxification treatment and viewed the current process as “a complete waste of time”. He was prepared to accept in cross-examination that his behaviour in the past may have given people a basis for complaint.

The defender further accepted that he had been aggressive towards M, but did not accept that his behaviour had placed her in a state of fear and alarm. He said he did not appear at the hearing in December 2023 to oppose the making of the interim order because he was undergoing treatment for his drink problem at the time. Although not present at the public meeting that CL attended, he did not accept that it concerned him as the main issue was about dogs.

Egregious behaviour

In his decision, Sheriff Speir said about the reliability of the evidence: “The defender refused to accept the veracity of the reports made initially to the Council’s housing department and then investigated by KM. He did not appear to challenge either that complaints had been made and then investigated but that rather what was involved was some sort of conspiracy against him by other tenants. I have little hesitation in rejecting that hypothesis.”

He continued: “In any event, the reports of the defender behaving inappropriately towards his neighbours in Clyde Tower is strongly supported in the present case by the terms of the telephone call he made on 7 September 2023. On any view such egregious behaviour cannot reasonably be tolerated and I quite accept and understand that from the Council’s perspective this tipped the balance in favour of seeking an antisocial behaviour order rather than a less stringent measure.”

Assessing whether the evidence supported the making of an order, the sheriff said: “The Council were content to rest their case on the hearsay evidence of CL and KM. As I have indicated I found both to be credible and reliable in terms of the reports they received, but neither gave any significant detail in relation to when and where the alleged incidents of antisocial conduct took place, beyond the two incidents in September 2023.”

He added: “That behaviour may have been linked to personal difficulties and addiction issues that the defender was experiencing at the time. He has successfully obtained treatment and support for those issues. There have been no reports of any further incidents since the beginning of October 2023. As this was a good two months before the interim antisocial behaviour order made in December 2023 I am inclined to accept in part the defender’s position that it was not only because of the existence of that order that he has desisted from any further objectionable behaviour.”

Sheriff Speir therefore concluded on the scope of the order: “For the reasons set out I do not consider that the necessity for a final order in the full terms craved by the Council is appropriate or necessary. Accordingly the final order I propose to make will be more restrictive than the interim order made on 6 December 2023, which will now be recalled.”

An order was therefore made for a period of three months from the decision date.