Director of Fair Trading prohibiting appellant from practising as estate agent – Appellant having pre-Estate Agents Act 1979 conviction in USA for “burning real estate other than a dwelling house” – Whether decision lawfully based on previous conviction – Whether past offence one of violence – Estate Agents Act 1979, section 3 – Appeal against prohibition dismissed
At an earlier stage of his career the appellant, A, worked in the realty business in Detroit where, in 1973, he was convicted of the crime of “burning real estate other than a dwelling house” (which did not involve a finding of fraud or dishonesty) and sentenced to a term of imprisonment of not less than 2 and a half years. A left the USA without serving his sentence and eventually set himself up in the UK as an estate agent. On September 10 1991 the Director General of Fair Trading, having received no representations from A in response to an earlier communication, made an order under section 3 of the Estate Agents Act 1979 (the section) prohibiting A from undertaking estate agency work and stating, as required by subsection (4), that having been “satisfied” that A had been convicted of a relevant offence, he was also satisfied that A was unfit to carry on estate agency work. Having appealed unsuccessfully to the Secretary of State for Trade and Industry, A brought a further appeal under section 7(4) of the Act to the High Court. The judge dismissed the appeal. A appealed to the Court of Appeal.
Held The appeal was dismissed.
1. The Act could not be construed so as to exclude offences committed before it came into force. While the court would be slow to find a parliamentary intention to legislate with retroactive effect, that principle did not assist the appellant because the order did not negate the legality of his earlier practice as estate agent: see In re a Solicitor’s Clerk [1957] 1 WLR 1219. Moreover, the principle was essentially one of fairness: see per Lord Mustill in L’Office Cherifien des Phosphates v Yamashita-Shinnion Steamship Co Ltd, The Boucraa [1944] AC 486, ap p524. It would not be fair, for example, to protect the public from the activities of a practitioner convicted a week after the Act but not from those of one convicted a week before. The alleged hardship was in any event mitigated by the fact that the past conviction was only a precondition to the exercise by the Director of his discretion.
2. There was no reason, having regard to the policy of the Act, to limit relevant convictions to convictions before a UK court, or to exclude the Detroit conviction simply because the appellant, having burned his own property, would have been differently charged if he had committed the offence in the UK .
3. Nor was there reason to limit “violence” as used in subsection 1 (“offence involving fraud or other dishonesty or violence”) to violence to the person: see by analogy offences relating to unlawful eviction of residential occupiers.
Michael Beloff QC and Renee Calder (instructed by Bray Walker) appeared for the appellant; Duncan Ouseley QC and Rabinder Singh (instructed by the Treasury Solicitor) appeared for the respondent, the Secretary of State for Trade and Industry.
