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SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW
[2025] SC GLA 1
GLW-SD465-24
JUDGMENT OF SHERIFF S REID
in the cause
DRUMCHAPEL HOUSING CO-OPERATIVE LTD
Pursuer
against
STACEY KELLY
Defender
Pursuer: Ms E. McFadyen, Mellicks, Glasgow
Defender: Mr G. O'Donnell, O'Donnell & Co, Glasgow
Glasgow, 30 January 2025
The sheriff, having resumed consideration of the cause, Makes the following FINDINGS-IN-
FACT:
(1)
The pursuer is the landlord, and the defender is the tenant, of a residential property
known as Flat 2/2, 19 Merryton Avenue, Drumchapel, Glasgow, G15 7PR ("the Subjects").
(2)
The defender occupies the Subjects in terms of a Scottish secure tenancy dated
3 October 2016 ("the Agreement"), of which item 1 in the pursuer's first inventory is a true
copy.
(4)
Her tenancy commenced on 3 October 2016.
(5)
She occupies the Subjects with her 13 year old son.
(6)
Clause 3.3 of the Agreement states that the defender and her visitors must not use
the Subjects, or allow them to be used, for illegal purposes.
2
(7)
Clause 3.4 of the Agreement states that the defender and her visitors must not act "in
an antisocial way" or sell drugs.
(8)
Between around 6 May 2022 and 20 May 2022, the defender stored controlled drugs
(specifically, diamorphine and cannabis) for third parties in a locked safe in a kitchen
cupboard within the Subjects, together with drug-related paraphernalia (comprising scales,
bags, and a mixing agent consistent with drug dealing); she provided the third parties with
keys to the Subjects (and to the common close) to allow them unhindered access thereto; and
she permitted the third parties to enter the Subjects, at any time of their choosing, for the
purpose of replenishing and removing the drugs within the locked safe and supplying them
to others.
(9)
The defender so acted in exchange for (i) the cancellation of a debt of £200 owed by
her to one of the third parties, and (ii) the weekly payment to the defender of small amounts
of cash and, on occasion, the supply to her of a small amount of controlled drugs for her
personal use.
(10)
The defender had no key or means of access to the locked safe in the kitchen
cupboard; she did not know, from time to time, which specific type of drug was being stored
in the safe; but she was fully aware, throughout the period from around 6 May 2022 to
20 May 2022, that she was permitting illegal drugs to be stored there for onward supply to
others.
(11)
On 20 May 2022, during a police search of the Subjects under a warrant, police
officers found and seized the following items which were located in a locked safe in a
kitchen cupboard there: (i) 340 grams of cannabis in powder form; (ii) 180 grams of cocaine
in powder form; (iii) 380 grams of a separate powder (not being a controlled substance in
itself, but habile for use as a mixing agent in drug dealing).
3
(12)
The estimated aggregate street value of the controlled drugs found within the
Subjects, and seized by the police, was £11,000.
(13)
Throughout the period from around 6 May 2022 to 20 May 2022, the defender and
her 13 year old son lived in the Subjects, and they were both present there on 22 May 2022
when the police forced entry to carry out the search.
(14)
On 9 January 2024, at Glasgow Sheriff Court, the defender pleaded guilty to, and was
convicted, of a charge on indictment that on 20 May 2022, at the Subjects, she was concerned
in the supply of a controlled drug (namely, diamorphine, a class A drug), contrary to the
Misuse of Drugs Act 1971, section 4(3)(b).
(15)
On 6 February 2024, in respect of the foregoing conviction, the defender was made
subject to a community payback order comprising (i) an offender supervision requirement
for a period of 12 months; (ii) an unpaid work requirement, compelling her to carry out
225 hours of unpaid work, to be completed within 12 months; and (iii) a restricted
movement requirement, compelling her to remain within her principal residence for a
period of 9 months between the hours of 7pm and 7am the following morning.
(16)
To date, the defender has refused to identify (to the police and to the court) the
identity of the third parties for whom she agreed to store the controlled drugs.
(17)
On 15 March 2024 (being a date within 12 months of the day on which the defender
was convicted as aforesaid), the pursuer served on the defender a notice of proceedings for
recovery of possession of the Subjects; and item 6 in the pursuer's first inventory is a true
copy of the said notice.
(18)
In around 2010, the defender was diagnosed with low mood and anxiety.
(19)
In around 2020, the defender was diagnosed with depression, anxiety and occasional
panic symptoms.
4
(20)
Between March 2021 and March 2024 she attended her general practitioner with
ongoing (unspecified) mental health issues;
(21)
The defender has not breached the Agreement prior to 6 May 2022 or subsequent to
20 May 2022;
Makes the following FINDINGS-IN-FACT AND IN-LAW:
(1)
Between around 6 May 2022 and 20 May 2022, within the Subjects, the defender was
concerned in the supply of controlled drugs (namely, diamorphine and cannabis, being class
A & B drugs, respectively) to another or others, contrary to the Misuse of Drugs Act 1971,
section 4(3)(b).
(2)
Between around 6 May 2022 and 20 May 2022, the defender breached clauses 3.3 &
3.5 of the Agreement by using the Subjects for an illegal purpose namely, being concerned
there in the supply of controlled drugs to another or others.
(3)
Between around 6 May 2022 and 20 May 2022, the defender breached clauses 3.3 &
3.5 of the Agreement by acting in an anti-social manner within the Subjects namely, being
concerned there in the supply of controlled drugs to another or others.
(4)
The pursuer has a ground for recovery of possession of the Subjects in terms of
paragraph 2 of schedule 2 to the Housing (Scotland) Act 2001 ("the 2001 Act"), in respect
that the defender has been convicted of a criminal offence, punishable by imprisonment,
committed within the Subjects (that is, the conviction referred to in finding-in-fact (14)).
(5)
The pursuer duly served upon the defender a notice of proceedings for recovery of
possession of the Subjects ("the section 14 notice") on the said ground, and timeously
commenced the present proceedings on that basis, in compliance with section 14 of the 2001
Act.
5
(6)
The section 14 notice was timeously served in compliance with section 16(2)(aa)(ii) of
the 2001 Act (that is, within 12 months of the date of the conviction referred to in finding-in-
fact (14)).
(7)
The grant of an order for recovery of possession of the Subjects in these proceedings
is proportionate, in terms of Article 8, ECHR; it would not constitute a violation of the
defender's Convention right thereunder; and it would not be unlawful, in terms of the
Human Rights Act 1998, section 6.
(8)
Separatim the grant of an order for recovery of possession of the Subjects in these
proceedings is reasonable, in terms of section 16(2)(a)(ii) of the 2001 Act.
Makes the following FINDING-IN-LAW:
(1)
The pursuer being entitled to an order for recovery of possession of the Subjects in
terms of the 2001 Act, section 16(2)(aa) et separatim section 16(2)(a), decree therefor should be
granted as craved;
ACCORDINGLY, Grants decree as craved, whereby, Orders the removal of the defender,
her family, sub-tenants and dependants, if any, with her whole goods and possessions, from
the Subjects; meantime, Reserves the issue of expenses sine die.
NOTE:
[1]
The pursuer (a registered social landlord) seeks to evict the defender (a secure
tenant) from her home.
[2]
She held the secure tenancy without incident for almost 6 years. But in May 2022,
she committed a serious criminal offence there. For a two week period, she was concerned
6
in the illegal supply of controlled drugs (diamorphine and cannabis) to another or others.
She had agreed to store the drugs for third parties in a locked safe in her kitchen cupboard,
together with drug-related paraphernalia. She had given those third parties a key to her flat
(and to the common close) to allow them unhindered access to the safe. She permitted them
to come in and out, whenever they wished, to access, replenish and remove the drugs for
onward supply to others. The defender herself had no means of access to the locked safe;
she did not know what specific type of drugs were being stored in it; but she was fully
aware, throughout the two week period, that she was permitting illegal drugs to be stored
there for onward supply to others.
[3]
On 9 January 2024, at Glasgow Sheriff Court, the defender pleaded guilty to, and was
convicted, of a charge on indictment that on 20 May 2022 (i.e. on a single day), at the
Subjects, she was concerned in the supply of a controlled drug (namely, diamorphine, a class
A drug), contrary to the Misuse of Drugs Act 1971, section 4(3)(b). She was made subject to
a level 2 community payback order, with a 12 month supervision requirement, 225 hours of
unpaid work, and a nine month restricted movement requirement.
[4]
A single statutory ground is founded upon to recover possession of the Subjects.
This ground is that the defender has been convicted of criminal offence, punishable by
imprisonment, committed in, or in the locality of, the Subjects (2001 Act, schedule 2,
paragraph 2). It appears in the notice of proceedings that was served on the defender (2001
Act, section 14). There is no dispute that the ground is established.
[5]
In reliance upon this single ground, two discrete eviction processes are pursued
concurrently. First, the pursuer proceeds under the "normal" eviction process (2001 Act,
section 16(2)(a)). The single ground not being in dispute (and the relevant notice of
proceedings having been duly served), the court "must" make an order for recovery of
7
possession, provided it appears to the court that it is "reasonable" to do so (2001 Act,
section 16(2)(a)(ii)) and subject to "any other rights" that the tenant may have by virtue of
any other enactment or rule of law (2001 Act, section 16(3A)). Second, the pursuer also
proceeds under the so-called "stream-lined" process for eviction (2001 Act,
section 16(2)(aa)). This new process applies where the same ground for eviction exists (i.e.
the tenancy-related criminal conviction) and the notice of proceedings was served on the
tenant within 12 months of the date of the conviction. Neither the existence of the ground
nor the timeous service of the notice is disputed. Therefore, again, the court "must" grant
the order for recovery of possession but the key difference from the "normal" eviction
process is that, under the "stream-lined" process, there is no requirement for the court to be
satisfied that it is "reasonable" to do so. Instead, the grant of decree is subject only to "any
other rights" that the tenant may have (section 16(3A), 2001 Act).
[6]
So, what "other rights" might the tenant invoke to resist eviction when the court is
otherwise enjoined under both processes to grant the order?
[7]
In this case, the defender invokes one such right. She claims that her eviction would
constitute a violation of her Convention right to respect for her home, contrary to Article 8,
ECHR (and the Human Rights Act 1998, section 6).
[8]
Having heard evidence at proof on 11 December 2024, I conclude that the grant of an
order for recovery of possession would be a proportionate interference with the defender's
Convention right under Article 8, ECHR (for the purposes of sections 16(2)(a), 16(2)(aa) &
16(3A) of the 2001 Act) et separatim that the grant of decree would be "reasonable" (for the
purposes of section 16(2)(a)(ii) of the 2001 Act). I explain my reasoning below.
8
The evidence
[9]
For the pursuer, I heard oral testimony from Marisa McCarthy and Police Constable
Max Harris. I also heard evidence from the defender on her own account.
Marisa McCarthy
[10]
Ms McCarthy, a senior housing officer employed by the pursuer, spoke to her
knowledge of the defender's criminal conviction and interviews with the defender. She
described the internal process by which a decision was taken to initiate the stream-lined
eviction process. In cross-examination, she confirmed that the defender had not breached
the tenancy terms prior or subsequent to the offence. The pursuer had made no enquiries of
neighbouring tenants to ascertain their views on the defender's eviction. The witness was
questioned on factors in the decision-making process: the defender's mental health; the
vulnerability of her son; intimidation of the defender; the availability of alternative options
(such as the offer of a short assured tenancy). The witness insisted that the seriousness of
the offence was a key factor and that the Scottish Government's Guidance had been
followed.
Max Harris
[11]
Police Constable Harris described the raid on the defender's home on 20 May 2022,
the findings and subsequent investigation. He testified that the defender had admitted that
the drugs were being held by her for others, whom she declined to name. She admitted she
had gained financially by storing the drugs. She was paid a small amount of cash weekly
and occasionally provided with an "equivalent sum" in drugs for her personal use. She had
disclosed she was aware that drugs were being stored in the safe, she was adamant that she
9
had never accessed it, but she conceded that her DNA may be on the outside of the safe as
she had "cleaned it". The Police Scotland STOP Unit had provided the witness with an
estimated street value of £11,000 for the drugs seized in the search, which was regarded by
the Unit as "a large return". He spoke to the effect of drug dealing on local communities. In
cross-examination, he inferred she may have been subject to a degree of intimidation not to
identify third parties involved in the offence.
Stacey Kelly
[12]
Ms Kelly is unemployed, on State benefits, a single mother, and lives with her
13 year old son. She previously worked as a support worker for adults with disabilities. She
has held the tenancy since 2016. She testified that in 2022 she had been struggling
financially. She borrowed £200 from "a friend" for her son's birthday in February 2022. She
agreed to pay it back at £50 per week. She recalled she paid one instalment but was unable
to maintain the rest. Her benefits had been interrupted. The third party told her that the
debt could be written off if she allowed her house to be used by third parties to store items
in the safe. She admitted that she knew that illegal drugs were being stored in the safe, but
said she was unaware of the precise contents. She declined to identify the third parties
involved, saying that she was scared to do so. She testified that the safe was used to keep
drugs for "a couple of weeks", which she described as "a short time". She denied receiving
any financial or personal benefit for the arrangement, other than the cancellation of the
balance of the £200 debt. She said she felt very vulnerable at the time of the offence, her
mental health "wasn't great", she had been scared to say no and felt bullied. Her mental
health was still "not good", she had been to counselling, she was "on medication". The
unpaid work requirement of the community payback order that was imposed upon her had
10
been revoked due to her "mental health" and resulting inability to carry work, the offender
supervision requirement was extended for a further year, but she had completed her
restricted movement requirement satisfactorily. She felt intimidated by the third parties for
about a month or two after the police search, until they realised that she had not disclosed
their names, and didn't intend to, at which time they "backed off". She spoke of her son's
circumstances: he attended a local school; he was involved in local extra-curricular activities;
his behaviour can be erratic; he struggles with change; he fidgets a lot; his sleeping is bad; he
is loud and hyperactive; he has recently been referred for an ADHD assessment. A
"petition" was said to have been signed by four of the neighbours in the block of which her
flat forms part (item 4, defender's fourth inventory); she had a close relationship with them;
they were supportive of her; they opposed her eviction. She had no connection with the
remaining four tenants who had not signed the petition. She said she could not afford a
private tenancy. If she were made homeless her mental health would suffer, it would be
"very difficult", and her son "would struggle with change". In cross-examination, she
complained that no support was given by the pursuer for her mental health issues. She
insisted that the third parties had never accessed the home when her son was there. She
could not recall when she had borrowed the £200 from the third parties, or when she began
to have difficulties repaying it, or whether she took drugs recreationally at the time. She
claimed she did not know what the word "recreationally" meant.
Closing submissions
[13]
For the pursuer, I was invited to accept the testimony of the pursuer's witnesses, and
to reject the defender's testimony so far as inconsistent therewith. The eviction of the
defender was said to be proportionate having regard to the legitimacy of the pursuer's aim;
11
the significant quantity and value of drugs seized; the drug-dealing paraphernalia, which
suggested that dealing was being carried on within the house; the defender's knowing
involvement; her personal financial gain; the evidence of ongoing intimidation (of the
defender) by others, thereby threatening the peace of the neighbourhood; the deleterious
effect of drug dealing on the community; and the pursuer's compliance with Scottish
Government Guidance on the stream-lined eviction processes. The eviction may adversely
affect the defender and her child, but this was outweighed by the legitimacy of the aim. I
was invited to attach no weight to neighbours' "petition", as the signatories had not been
called to speak to it.
[14]
For the defender, I was invited to refuse the order. It was accepted that the pursuer
was pursuing a legitimate aim but it was said that eviction would be disproportionate. I
was invited to reject Ms McCarthy's evidence: no written report had been lodged or spoken
to; she was not the person responsible for making the decision to evict; she was unable to
speak directly to the reasoning; at best she offered a second-hand understanding that the
gravity of the offence was the key factor. Absent evidence of any assessment by the pursuer
of the personal circumstances of the defender and her son (notably, the impact of eviction on
their health), the pursuer's decision-making process was said to be flawed, disproportionate
and "not Article 8 robust". She was vulnerable due to her "mental health difficulties"; she
was susceptible to intimidation at the hands of drug dealers; she never had access to the
safe; the third parties did not attend at her house when she or her son were present; this was
her first and only criminal conviction; she had otherwise complied with the tenancy terms;
less intrusive measures were available (specifically, a probationary tenancy), which had not
been properly considered; and her neighbours were supportive of her remaining in
occupation. There was said to be significant mitigation. The impact of eviction upon her
12
and her son would be "dire". Reference was made to North Lanarkshire Council v Kelly 2022
Hous LR 95 (Hamilton Sheriff Court, Sheriff J. Speir, 10 March 2022); Wheatley Homes
Glasgow Ltd v Yasmin Shariff, Sheriff Paul Reid, 7 August 2023, unreported).
Reasons for Decision
The legal principles
[15]
In normal circumstances (i.e. in cases not involving public sector evictions), the onus
of establishing that an interference with an ECHR Convention right is justified (and
proportionate) rests on the State that is, upon the public authority that seeks to interfere
with the right. In addition, "a more clearly structured approach" is normally adopted to the
assessment of proportionality (in non-repossession cases) (Bank Mellatt v Her Majesty's
Treasury (No 2) [2014] AC 700, [71] - [76] per Lord Reed). This more analytical approach
operates by "breaking down the assessment of proportionality into distinct elements". In
summary, when assessing proportionality the Court must determine (1) whether the
objective of the impugned measure is sufficiently important to justify limiting the
Convention right, (2) whether the measure itself is rationally connected to that objective,
(3) whether a less intrusive measure could have been used without unacceptably
compromising the achievement of the objective, and (4) whether, balancing the severity of
the measure's effects on the rights of the persons to whom it applies against the importance
of the objective, to the extent that the measure will contribute to its achievement, the former
outweighs the latter. Lastly, normally, by its nature, the test of proportionality is more
searching than a conventional Wednesbury review. A "close and penetrating examination of
the factual justification for the restriction is needed" if the protection afforded by the
Convention right is to remain practical and effective (R v Shayler [2003] 1 AC 247, [61]).
13
Proportionality is directed at determining not merely whether a decision-making process
was flawed (that is, whether a decision-maker misdirected itself, or acted irrationally, or
committed some procedural impropriety), but whether a fair balance has been struck overall
between the demands of the general interest of the community and the requirement for
protection of the individual's fundamental right. So, a conventional assessment of
proportionality necessarily requires the court to reach a "value judgment" (Bank Mellatt,
supra, [71]). But it is always a question of degree. The intensity of the review will vary
depending upon the nature of the Convention right at stake, and the context in which the
interference occurs. So, for example, some Convention rights (such as those conferred by
Articles 8 to 11, ECHR) are subject to widely expressed qualifications, whereas others permit
of more stringent derogations only. Also, the stronger the "pressing social need" for an
interference with a Convention right, the less difficult it may be to justify that interference.
Lastly, the limits on judicial competence need to be borne in mind. In certain circumstances
and to a certain extent, a domestic legislature or decision-maker may be better placed than
the court to determine how particular competing community and individual interests
should be balanced (Axa General Insurance Ltd v Lord Advocate 2012 SC 122, [131]).
[16]
In Manchester City Council v Pinnock [2011] 2 AC 104, the Supreme Court turned this
conventional approach to proportionality on its head in public sector repossession cases.
[17]
Critically, the onus is reversed in such cases. According to Pinnock, the onus is now
on the person against whom the possession order is sought to challenge the proportionality
of the measure; the burden of proof lies on him to show that it is disproportionate; any
proportionality defence should initially be considered summarily by the first-instance court
and rejected unless it crosses the high threshold of being "seriously arguable"; if an Article 8
defence does proceed to an evidential hearing, the legitimate "twin aims" of public sector
14
landlords to vindicate their property rights and to administer their finite housing stocks
should be assumed (as a "given"); those legitimate twin aims are to be treated as "of real
weight" in the assessment of proportionality; in the overwhelming majority of cases, there
will be no need for the public sector landlord to explain or justify its reasons for seeking
possession; and, as a broad statement, the absence of proportionality is likely to be
exceptional (Pinnock, [52] to [61]). In effect, Pinnock creates a series of weighted rebuttable
presumptions in favour of the proportionality of repossession by public sector landlords.
[18]
Put more broadly, the Supreme Court in Pinnock conceded a procedural point of
principle inherent in Article 8, ECHR namely, that any person at risk of losing his home at
the instance of a public sector landlord must be entitled to challenge the proportionality of
that decision within the court repossession process itself, even where he has no right under
domestic law to occupy the property, and even where the legislation purportedly leaves the
court no room for discretion. However, as a legal tool to contest the substantive merits of a
proposed repossession, the principle of proportionality (though now available procedurally
to the first-instance court) remains tightly constrained, if not blunted, in its application by
the Pinnock decision.
[19]
Subsequent case law suggests that, in practice, most occupiers in repossession
proceedings may not have reaped much substantive benefit from the application of the
Article 8 Convention right. A proportionality defence (under Article 8, ECHR) is difficult to
establish in public sector eviction actions.
[20]
Pinnock was followed by the Supreme Court in Hounslow LBC v Powell [2011] 2 AC 186.
Both Pinnock and Powell were then applied in a volley of heavy-hitting Court of Appeal
decisions, all emphasising the difficulty of surpassing the "seriously arguable" threshold in
(English) public sector repossession procedure. The Supreme Court's approach in Pinnock
15
and Powell was then adopted by the Inner House of the Court of Session in South Lanarkshire
[21]
The basic principles were neatly collated by Etherton LJ in Thurrock Borough Council v
(1)
First, it is a defence to a claim by a public sector landlord for possession of a
defender's home that repossession is not necessary in a democratic society, in terms
of Article 8(2), ECHR. An order for possession in such a case would breach the
defender's Article 8 Convention right, and therefore be unlawful (Human Rights Act
1998, section 6(1)).
(2)
Second, the proper test is whether the proposed eviction is a proportionate
means of achieving a legitimate aim (Pinnock, [52]). The Supreme Court has said that
it would prefer to express the position in that way rather than use the yardstick of
confining an arguable Article 8 defence to "very exceptional cases".
(3)
Third, nevertheless, the threshold for establishing an arguable case that a
public sector landlord is acting disproportionately (and so in breach of Article 8,
ECHR), where repossession would otherwise be lawful, is a high one and will be met
in only a small proportion of cases (Powell, [35]). The circumstances will have to be
exceptional to substantiate such a defence (Powell, [92]). In Birmingham City Council v
circumstances might even have to be "extraordinarily exceptional", but it is now
acknowledged that references to degrees of exceptionality may unnecessarily
complicate matters.
(4)
Fourth, the reasons why the threshold is so high lie in the public policy and
public benefit inherent in the functions of a public sector housing authority in
16
dealing with its housing stock, a precious and limited public resource. Such
landlords hold their housing stock for the benefit of the whole community and they
are best equipped (certainly better equipped than the courts) to make management
decisions about the way in which such stock should be administered (Powell, [35]).
Where a person has no right in domestic law to remain in occupation of his home,
the proportionality of evicting the occupier will be supported not merely by the fact
that it would serve to vindicate the landlord's ownership rights but also, at least
normally, by the fact that it would enable the landlord to comply with its duties in
relation to the distribution and management of its housing stock (including, for
example, the fair allocation of its housing, the redevelopment of the site, the
refurbishing of sub-standard accommodation, the need to move people who are in
accommodation that now exceeds their needs, and the need to move vulnerable
people into sheltered or warden-assisted housing). In many cases, other cogent
reasons, such as the need to remove a source of nuisance to neighbours, may support
the proportionality of dispossessing the occupiers. Unencumbered property rights
(including those enjoyed by a public sector body) are "of real weight" when it comes
to proportionality. So, too, is the right indeed the obligation of public sector
landlords to decide who should occupy their residential property. Therefore, in
virtually every case where a residential occupier has no contractual or statutory
protection, and the public sector landlord is entitled to possession as a matter of
domestic law, there will be a very strong case for saying that making an order for
possession would be proportionate.
(5)
Fifth, where, aside from Article 8, ECHR, a public sector landlord has a legal
right to possession, the landlord can also properly be assumed to be acting in
17
accordance with its duties (in the absence of cogent evidence to the contrary). This
will be a strong factor in support of the proportionality of making an order for
possession without the need for any further explanation or justification by the
landlord (Pinnock, [53]; Powell, [37]). It will, of course, always be open to the landlord
to adduce evidence of other particularly strong or unusual reasons for wanting
possession.
(6)
Sixth, an Article 8 defence on the ground of lack of proportionality must be
pleaded and sufficiently particularised to show that it reaches the high threshold of
being seriously arguably (Powell, [33] & [34]).
(7)
Seventh, unless there is some good reason not to do so, the court must at the
earliest opportunity summarily consider whether the Article 8 defence, as pled,
reaches that threshold (Pinnock, [61]; Powell, [33], [34] & [92]). If the averred defence
does not reach that threshold, it should be dismissed. The resources of the court and
of the parties should not be further expended on it.
(8)
Eighth, even where an Article 8 defence is established, in a case where the
occupier would otherwise have no legal right to remain in the property (a fortiori
where the defender has never been a tenant or licensee), it is difficult to imagine
circumstances in which the defence could ever operate to give the occupier an
unlimited and unconditional right to remain (which may be the unintended
consequence of a simple refusal of possession without any further qualification)
(Pinnock, [52]). By so adjudicating, the court would have assumed the public sector
landlord's function of allocating its housing stock, preferring the right of an
unentitled occupier to remain, without any tenancy or contract, over all the other
people entitled to rely on the landlord's resources and duties, and without the
18
benefit of any knowledge of the circumstances of those competing potential
occupiers.
[22]
However, strikingly, no clear guidance was given in Pinnock or Powell as to the
circumstances in which an Article 8, ECHR defence might actually succeed.
[23]
Tantalisingly, Lord Neuberger in Pinnock (para [64]) observed merely that
proportionality is more likely to be a relevant issue "in respect of occupants who are
vulnerable as a result of mental illness, physical or learning disability, poor health or
frailty", and that in such cases public sector landlords "may have to explain why they are
not securing alternative accommodation". Beyond that, the Supreme Court stated merely
that the assessment of proportionality in individual cases was "best left to the good sense
and experience of judges sitting in the [first instance] court" (para [57]). That may provide
small comfort for the first-instance judge.
[24]
Reported instances of successful proportionality defences are thin on the ground. I
am aware of only one English decision in which the Article 8, ECHR defence was successful
only two such Scottish cases (East Kilbride Housing Association v Carroll, Hamilton Sheriff
Court, Sheriff J. Speir, 31 August 2022; and River Clyde Homes Limited v Woods, Greenock
Sheriff Court, Sheriff C G McKay, 1 September 2015).
[25]
In the overwhelming majority of reported cases, the proportionality defence has not
19
supra). To illustrate the point, even a relatively well-evidenced averment that the defendant,
if evicted, would likely kill himself did not make eviction disproportionat e (R (on the
[26]
However, as a final observation, it is worth noting that Pinnock, Powell and most of
the leading cases are in fact dealing with unlawful occupiers, that is, persons who do not
have (and, indeed, many who never had) any right whatsoever to occupy the property, still
less any protected security of tenure. Pinnock involved a "demoted tenancy", Powell an
"introductory tenancy" (its statutory predecessor), both being akin to mere "probationary"
or short assured tenancies in Scots law (McKenna); Corby too involved an introductory
tenant; West Kent and Riverside Group were concerned with "starter" tenants; Holmes likewise
with a non-secure tenant; the occupier in Birmingham was a trespasser; in Thurrock, the
defendant had never held a tenancy or licence of the property, but was merely a grandson of
the deceased tenant claiming a right of succession.
[27]
Therefore, in all these leading cases, the "twin aims" of vindicating the landlords'
proprietary rights, and of upholding their managerial powers over a limited housing stock,
were compelling and were afforded due primacy. That is why, in Pinnock, the conventional
"structured" approach to the assessment of proportionality was rejected. As Lord Hope
observed, to apply the conventional structured proportionality test to such unlawful
occupiers "would largely collapse the distinction between secured and non-secure
tenancies." Likewise, Lord Neuberger in Powell (para [74]) observed that Parliament had
"deliberately created classes of tenants who do not have security of tenure"; and, while
some of those tenants had been granted a degree of substantive and procedural protection,
Parliament had sought to eliminate, so far as possible, questions of proportionality in such
cases for sound policy reasons.
20
[28]
Logically, therefore, the balancing exercise may be subtly different with an occupier
who does have security of tenure (as in the present case). To be clear though, Pinnock and
Powell are of universal application across all public sector repossession cases, whether the
occupation is lawful or unlawful, secure or non-secure. But the distinction between an
occupier who otherwise has security of tenure, and one who does not, remains an important
one in the practical application of Pinnock proportionality in individual cases, though not
necessarily determinative.
Is this defender's eviction proportionate under Article 8, ECHR?
[29]
Against that legal background, with the onus firmly on the defender, I have sought
to assess the merits of the defender's Article 8, ECHR defence.
[30]
The first question is whether the objective sought to be achieved by the action is
sufficiently important to justify interfering with the defender's Article 8 right.
[31]
I accept that a number of legitimate objectives are sought to be achieved here. The
"twin aims" of vindicating the pursuer's proprietorial right and enforcing its powers of
management over its own housing stock can safely be assumed. However, on the evidence
in this case, they can also be seen to be ancillary and subordinate aims. This is not a case
where the pursuer seeks to recover possession from an unlawful occupier who, aside from
Article 8, either never had a right to possess or whose right has terminated. On the
evidence, there is another "cogent" reason (per Pinnock) for seeking recovery of possession
in this case. The predominant objective of this repossession action is the removal of a source
of nuisance to the neighbourhood. That objective is both intrinsic and manifest in the
ground for recovery of possession founded upon by the pursuer (2001 Act, schedule 2,
paragraph 2). It is a perfectly legitimate objective. It can be justified for multiple reasons.
21
Where, as here, the perceived nuisance derives from conduct that is both criminal and
inherently anti-social, the underlying justifications of the objective may be (i) to prevent a
recurrence of the offending behaviour, (iii) to deter others from engaging in similar
behaviour, and (iii) to reassure law-abiding tenants and neighbours that an effective
sanction can be imposed for such conduct. The preventative, deterrent and declaratory
strands or rationales of the objective are best illustrated in housing policies aimed at evicting
persons concerned in the supply of illegal drugs. Therefore, I am satisfied that the objective
sought to be achieved in this case is legitimate and sufficiently important to justify
interfering with the defender's Article 8 right.
[32]
The next question is whether the proposed eviction is a proportionate means of
achieving that legitimate aim, with the onus resting squarely on the defender.
[33]
In my judgment, the defender has failed to discharge the onus upon her of
establishing that it would be disproportionate to order eviction, in terms of Article 8, ECHR.
I reach that conclusion for the following reasons.
[34]
In the first place, the pursuer's legitimate objective in this case itself carries real
weight in the assessment of proportionality. The wretched impact of drug-dealing on
neighbourhoods is notorious. The misery it brings to individuals, families, and the wider
community is renowned. Tenants should be made aware that if they engage in this vile
trade it will not be tolerated by landlords and that there will be adverse consequences for
them. The wider community should have confidence that public sector landlords will take
their responsibilities seriously, by acting robustly to extirpate this particular social blight
from the midst of their neighbourhoods. The eviction of those involved in drug-dealing
promotes a safer environment for law-abiding tenants and their families. The objective
22
sought to be achieved by the pursuer reflects a pressing social need, to which real weight
should be attached in the assessment of proportionality.
[35]
In contrast, in the second place, the defender's personal circumstances, while
deserving of sympathy, are regrettably neither remarkable nor compelling. The medical
evidence of her asserted mental health issues was sparse. In her oral testimony, she made
fleeting and generalised references to her poor mental health. A brief medical report dated
21 May 2024 purportedly from her general practitioner was lodged in process (item 1,
defender's first inventory), but the author did not speak to it, and no independent medical
practitioner was called to explain or amplify its terms. Instead, in examination-in-chief the
defender merely read parts of it out, albeit without objection. It bears to record that in
around 2010, the defender was diagnosed with low mood and anxiety; in around 2020, she
was diagnosed with depression, anxiety and occasional panic symptoms; and between
March 2021 and March 2024 she attended her general practitioner with ongoing
(unspecified) "mental health issues". Parts of the report were unfamiliar to her. The report
speaks of a "recent bereavement" for which she was supposedly offered counselling, but in
her testimony the defender seemed oblivious to this and could not even recall the name of
the deceased. In the event, the pursuer did not dispute the general diagnoses in the report,
but that does not greatly assist the defender's Pinnock proportionality defence. Regrettably,
on the spectrum of mental well-being, the defender's diagnoses, as disclosed in the evidence,
are prima facie unexceptional and unremarkable, both in nature and severity. The GP's
report speaks of "depression", but with no categorisation as to whether this is mild or
severe, continuing, time-limited, or event-specific. (Her first diagnosis in 2010 appears to
have been ante-natal in nature.) Bland references to "depression", "low mood", or "anxiety"
are unilluminating, absent further specification of type and severity or a symptomatic
23
narration. In any event, there is no evidence of these generalised "mental health issues"
having any actual impact (still less, any significant impact) upon her daily life, or
functioning, or decision-making, or susceptibility to exploitation, or risk of exposure to
undue hardship - either now, or in the past, or in the future (in the event that she is evicted).
[36]
As Sheriff J. Speir similarly concluded in North Lanarkshire Council v Kelly, supra
(para [42]), I am prepared to accept that this defender has a degree of vulnerability, but I
certainly do not have a clear or compelling picture as to (i) the precise nature and
significance of that vulnerability, specifically whether it constitutes a recognised and serious
mental disorder; (ii) what impact, if any, it currently has upon her daily life, or functioning,
or decision-making, or susceptibility to exploitation, or risk of exposure to undue hardship;
(iii) what impact it is likely to have upon her in the future (with or without proper
treatment), if she is evicted, and (iv) what impact, if any, it had upon her at the time of the
offending conduct. (To be clear, this latter issue (numbered (iv)) is not an essential
prerequisite by any means. A tenant advancing an Article 8, ECHR defence would certainly
not be required to attain the more onerous threshold of proving a causal link between his
diagnosed mental disorder and his offending conduct. To do so would tend to collapse the
distinction between Pinnock proportionality and the separate statutory protection against
disability discrimination under section 15 of the Equality Act 2010. However, if such a
connection were to be established, it may be a relevant factor in the proportionality
balancing exercise.)
[37]
Given the weakness of the medical evidence in this case, I am not persuaded that the
defender falls within that potentially exceptional category identified by Lord Neuberger in
Pinnock (para [53]), being occupiers who are "vulnerable as a result of mental illness,
physical or learning disability, poor health or frailty". That category should probably be
24
reserved for those with a more clearly-evidenced vulnerability that is significant both in
nature and personal impact. For completeness, I also observe that there is no medical
evidence to substantiate any diagnosed mental vulnerability suffered by the defender' son,
still less of its type, severity or impact.
[38]
Esto the evidence is sufficient to bring the defender within the protective embrace of
Lord Neuberger's potentially exceptional category, nevertheless the dearth of reliable
medical evidence as to the impact of these general "mental health issues" upon her
functioning (now, in the past, and in the future), means that she fails to displace the
compelling weight to be attached to the pursuer's countervailing legitimate aim in removing
her.
[39]
As a cross-check, I also observe that no less intrusive or drastic means has been
shown by the defender to be available to achieve the pursuer's legitimate aim. The mere
existence of such an alternative is by no means determinative, but it would at least be a
barometric tool by which the proportionality of the proposed eviction can be cross-checked
(Bank of Mellatt, [75]). Re-housing the defender would merely transfer the perceived
nuisance elsewhere indeed, not far - to another of the landlord's neighbourhoods. Neither
the preventative nor deterrent objectives would be achieved.
[40]
For these reasons, I conclude that the defender has failed to discharge the onus upon
her of proving that eviction would be disproportionate. The removal of this particular
defender, in these particular circumstances, strikes a fair balance between the interests of the
wider community and the defender's Article 8, ECHR right. The averred statutory ground
of recovery of possession is established, and the procedural prerequisites of the stream-lined
eviction process are satisfied (2001 Act, s. 16(2)(aa)). There is no need to consider the
separate test of "reasonableness" (2001 Act, s. 16(2)(b)).
25
[41]
Esto the section 16(2)(aa) stream-lined eviction process does not apply, decree as
craved would still require to be granted in terms of the normal eviction process (under
section 16(2)(a)) because on the evidence (i) a statutory ground for recovery has been
established (2001 Act, schedule 2, paragraph 2) and (ii) it is "reasonable" to make the order.
In this context, reasonableness is to be determined by reference to the non-exhaustive list of
factors in section 16(4) of the 2001 Act. Those considerations favour the granting of decree.
First, the nature of the impugned conduct is serious drug offending involving concern in the
supply of drugs of significant quantity and value over a two week period. Second, the
defender's culpability is significant, in that she was well aware that her house was being
used to store and supply illegal drugs, she was personally benefiting from that illegal
conduct, and she positively facilitated, and thereafter turned a blind eye to, it. Third, there
is nothing that the pursuer might have done to secure cessation of that conduct prior to it
being discovered, given the inherently clandestine nature of drug dealing. Fourth, drug
dealing has corrosive and anti-social consequences for communities generally; the
defender's conduct can fairly be assumed to have contributed to that societal blight; and it is
therefore in the public interest that such behaviour be dealt with firm ly (South Lanarkshire
Council v Nugent 2008 Hous LR 92).
[42]
Accordingly, I grant the order for removal as craved. The issue of expenses is
reserved meantime.
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