Estate Agents Act 1979 section 3 — Order prohibiting practice as estate agent — Conviction for arson in USA court in 1973 — Whether 1979 Act retrospective — Whether conviction before a foreign tribunal relevant — Whether arson an offence under section 3
In February
1973 the appellant was convicted before the Recorder’s Court in Detroit of
‘burning real estate other than a dwelling house between 1st–8th December
1971’, contrary to the local criminal law, and sentenced to serve between two
and a half years and 10 years. That sentence was not served by the appellant;
he left the country for Israel and later came to the United Kingdom from where
he subsequently carried on a business as a property agent until 1985. As a
result of his activities in this country, the Director General of Fair Trading
served the appellant with a notice pursuant to section 3(2)(a) of the
Estate Agents Act 1979, notifying him that the director intended to disqualify
him from undertaking estate agency work on the grounds of his previous
conviction. The appellant was served with a notice of the director’s decision
that since the appellant was considered to be unfit to engage in estate agency
work he was accordingly disqualified. On October 18 1991 the appellant appealed
to the Secretary of State for Trade and Industry. Following a hearing to
determine the appellant’s appeal, the Secretary of State accepted the findings
of the persons appointed by him to determine the appeal; in April 1993 they
found the appellant to be a person unfit to engage in estate agency work and
that the Detroit conviction fell within section 3(1)(a)(i) of the 1979
Act as an offence of violence. In August 1993 the Secretary of State dismissed
the appellant’s appeal. In proceedings before the High Court, Buxton J
dismissed the appellant’s appeal on the grounds that the Act was retrospective
in effect, that section 3 included foreign convictions and that the appellant’s
conviction of arson was an offence of violence. The appellant appealed to the
Court of Appeal.
effect. The conviction of an offence involving fraud or other dishonesty or
violence is only a precondition upon which the director’s powers are
exercisable. If satisfied that the person concerned has been convicted, the
director will have to consider whether he is unfit to carry on estate agency
work generally or of a particular description, and has a wide discretion in
determining whether that is so. Thus the past conviction is not to be itself
determinative of the imposition of an order of disqualification. The word
‘conviction’ in section 3 of the 1979 Act includes conviction before the
passing of the Act. (2) There is no ground for confining the word ‘conviction’
so that a conviction before a court outside the United Kingdom for fraud,
dishonesty or violence is excluded. (3) There is no justification for including
a double criminality requirement for the offences referred to in section 3(1)(a)(i).
Accordingly, the offences need not also be offences under national law. The
question is not whether the convictions are for specific offences, but whether
the convictions are for offences which involve particular attributes. (4) There
is no justification for confining the word ‘violence’ to violence to the
person; parliament intended that convictions for offences involving violence
towards property should be included within section 3(1)(a)(i). (5) The
director was entitled to come to the conclusion that he did.
The following
cases are referred to in this report.
L’Office
Cherifien des Phosphates v Yamashita-Shinnihon
Steamship Co Ltd, The Boucraa [1994] 1 AC 486; [1994] 2 WLR 39; [1994] 1
All ER 20; [1994] 1 Lloyd’s Rep 251, HL
Secretary
of State for Social Security v Tunnicliffe
[1991] 2 All ER 712, CA
Solicitor’s
Clerk, In re A [1957] 1 WLR 1219; [1957] 3 All ER
617
Yew
Bon Tew v Kenderaan Bas Mara [1983] 1 AC
553; [1982] 3 WLR 1026; [1982] 3 All ER 833, PC
This was an
appeal by the appellant, Samuel Antonelli, against the decision of Buxton J
dismissing his appeal against the findings of the respondent ([1996] 1 EGLR
229), the Secretary of State for Trade and Industry.
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)
represented the respondent.
Giving
judgment, BELDAM LJ said: The long title of the Estate Agents Act 1979
described it as:
An Act to
make provision with respect to the carrying on of and to persons who carry on,
certain activities in connection with the disposal and acquisition of interests
in land; and for purposes connected therewith.
It was the
culmination of many attempts begun as long ago as 1888 to regulate the
activities of estate agents by legislation. During the 90 years before the Act
was passed, public concern had been expressed that neither parliament nor the
profession itself had made provision for registration, for minimum standards of
competence and for safeguards to protect clients against defaulting
practitioners. In short, any person could adopt the title of, and act as, an
‘estate agent’ though he had no specific qualification and the public had no
assurance that he was skilled, competent or even honest. After many
unsuccessful attempts by private members to introduce legislation to regulate
estate agency practices, a bill introduced by a private member, Mr Bryan
Davies, in 1978 was adopted by the government to become the Estate Agents Act
1979. The Act did not introduce any system of registration, but provided means
by which an estate agent could be judged unfit to practice. The power to make
orders prohibiting unfit persons from doing estate agency work was entrusted to
the Director General of Fair Trading. It is with these powers that the present
appeal is concerned. They are contained in sections 3 to 8 and the provision of
Schedule 1.
By section 3
the director is given power, subject to preconditions, to issue orders
prohibiting a person from engaging in estate agency work if he considers that
person to be unfit to practice on any of the grounds set out in the section.
Before making an order, the director must follow the procedure set out in the
provisions of Part I of Schedule 2 to the Act: see section 5. The director is
required to give notice to the person in respect of whom he proposes to make
the order, informing him of its substance and, if it is to be made under
section 3, of the grounds on which he intends to rely. The person affected must
be given not less than 21 days’ notice to enable him to submit his
representations in writing why the order should not be made and stating whether
he wishes to make oral representations. The Schedule makes provision for the
hearing of representations and requires the director to take them into account.
He must give notice of his decision and of the terms of the order, together
with his reasons, including the facts relied on.
Section 7 of
the Act confers on the person affected by the order, a right to appeal from the
decision of the director to the Secretary of State. The Secretary of State can
make regulations for the conduct of such appeals. By section 7(4) an appellant
who is dissatisfied in point of law with the decision of the Secretary of State
can appeal to the High Court and with leave to this court from the decision of
the High Court: see section 7(5).
The power of
the director to make an order is given in section 3, which provides:
(1) The power
of the Director General of Fair Trading (in this Act referred to as ‘the
Director’) to make an order under this section with respect to any person shall
not be exercisable unless the Director is satisfied that that person —
(a)
has been convicted of —
(i) an
offence involving fraud or other dishonesty or violence, or
(ii) an
offence under any provision of this Act, other than section 10(6), section
22(3) or section 23(4), or
(iii) any
other offence which, at the time it was committed, was specified for the
purposes of this section by an order made by the Secretary of State; …
Section 3(2)
provides:
Subject to
subsection (1) above, if the Director is satisfied that any person is unfit to
carry on estate agency work generally or of a particular description he may
make an order prohibiting that person —
(a)
from doing any estate agency work at all; or
(b)
from doing estate agency work of a description specified in the order; and in
determining whether a person is so unfit the Director may, in addition to
taking account of any matters falling within subsection (1) above, also take
account of whether, in the course of estate agency work or any other business
activity, that person has engaged in any practice which involves breaches of a
duty owed by virtue of any enactment, contract or rule of law and which is
material to his fitness to carry on estate agency work.
For the
purposes of paragraphs (c) and (d) of subsection (1) above, —
(a)
anything done by a person in the course of his employment shall be treated as
done by his employer as well as by him, whether or not it was done with the
employer’s knowledge or approval, unless the employer shows that he took such
steps as were reasonably practicable to prevent the employee from doing that
act, or from doing in the course of his employment acts of that description;
and
(b)
anything done by a person as agent for another person with the authority
(whether express or implied, and whether precedent or subsequent) of that
person shall be treated as done by that other person as well as by him; and
(c)
anything done by a business associate of a person shall be treated as done by
that person as well, unless he can show that the act was done without his
connivance or consent.
(4) In an
order under this section the Director shall specify as the grounds for the
order those matters falling within the paragraphs (a) to (d) of
subsection (1) above as to which he is satisfied and on which, accordingly, he
relies to give him power to make the order.
(5) If the
Director considers it appropriate, he may in an order under this section limit
the scope of the prohibition imposed by the order to a particular part of or
area within the United Kingdom.
By section
3(8), if a person fails without reasonable excuse to comply with the director’s
order, he is liable to conviction on indictment or to a fine not exceeding the
statutory maximum on summary conviction. It is also relevant to set out the
provisions of section 5(1):
The provisions
of Part I of Schedule 2 to this Act shall have effect —
(a)
with respect to the procedure to be followed before an order is made by the
Director under section 3 or section 4 above; and
(b) in
connection with the making and coming into operation of any such order.
— and
subsection (4) —
In any case
where —
(a) an
order of the Director under section 3 above specifies a conviction as a ground
for the order, and
(b)
conviction becomes spent for the purposes of the Rehabilitation of Offenders
Act 1974 or any corresponding enactment for the time being in force in Northern
Ireland,
then, unless
the order also specifies other grounds which remain valid, the order shall
cease to have effect on the day on which the conviction becomes so spent.
By para 1 of
Schedule 1:
A conviction
which is to be treated as spent for the purposes of the Rehabilitation of
Offenders Act 1974 or any corresponding enactment for the time being in force
in Northern Ireland shall be disregarded for the purposes of section 3(1)(a)
of this Act.
Mr Samuel
Antonelli, the appellant, is a property agent who until 1985, at any rate,
accepts that he was conducting estate agent’s business in this country. Earlier
in his life he worked in the realty business in Detroit. There, in the
Recorder’s Court, he was convicted in 1973 of the crime of ‘burning real estate
other than a dwelling house between 1st–8th December 1971′, an offence contrary
to chapter 750 section 73 of the Michigan Criminal Law Act. On June 12 1973 he
was ordered to serve between two and a half and 10 years’ imprisonment for that
offence. He did not serve the sentence, but left for Israel and from there came
to the United Kingdom. He has not returned to serve his sentence.
As a result of
the appellant’s activities in this country, the director served him with a
notice of proposal under section 3(2)(a) of the Act. The notice stated
that the director proposed to make an order prohibiting the appellant from
doing any estate agency work at all. The reasons for the proposed order were
that the appellant had been convicted of an offence involving violence within
the meaning of section 3(1)(a)(i) of the Act in that on February 28
1973, at the Recorder’s Court of the city of Detroit, the appellant was
convicted of arson (by burning real estate other than a dwelling-house) and was
more than 10 years. The appellant did not make written representations or
indicate that he intended to do so orally. The director reminded him of his
right to do so on September 10 1991. No representations were received from him
and on October 2 1991 the director served him with a notice of his decision
that he was satisfied that the appellant had been convicted of arson, at the
Recorder’s Court of the city of Detroit on February 28 1973, and had been sentenced
to a term of imprisonment, and that the offence was an offence of fraud or
other dishonesty within the meaning of section 3(1)(a)(i) of the Act. He
said:
I accordingly
rely on this as grounds for the order and as empowering me to make an order
under sect 3(2) of the Act.
The notice
also stated that the director was satisfied that the appellant was unfit to
carry on estate agency generally and that, accordingly, he made an order
prohibiting the appellant from doing any estate agency work at all.
The appellant
gave notice of appeal to the Secretary of State on October 18 1991. His grounds
of appeal were:
1. That the
conviction relied on as grounds for the order took place overseas in respect of
an alleged offence which occurred more than 20 years ago.
2. That he had
been convicted of an alleged offence with which he had never been charged and
which he had always and continued to deny having committed.
In accordance
with his powers, the Secretary of State appointed three persons to consider the
appellant’s appeal from the determination of the director. The hearing began on
June 29 1992 but, as the grounds of appeal focused principally on the nature
and validity of the conviction, it was adjourned for fuller information to be
obtained about the offence or offences of which the appellant had been
convicted in Detroit in 1973. The appointed persons reported to the Secretary
of State on April 27 1993 finding that the appellant was a person who was unfit
to carry on estate agency work generally. They considered that the conviction
in Detroit fell within section 3(1)(a)(i) of the Act, and that in view
of this he was not a fit person to carry on estate agency work under section
3(2) of the Act.
On August 6
1993 the Secretary of State gave notice dismissing the appellant’s appeal and
in giving his reasons he accepted:
(1) That on
February 28 1973 at the Recorder’s Court of the city of Detroit, Michigan, USA,
the appellant was convicted of three counts of burning property other than a
dwelling-house and was sentenced to a term of imprisonment of not less than two
years six months and not more than 10 years;
(2) That the
above convictions were for offences involving violence within the meaning of
section 3(1)(a)(i) of the Act. He accepted the appointed persons’
conclusions that the appellant’s conviction was evidence that he is not a fit
person to engage in estate agency work.
The Secretary
of State considered that because of the appellant’s readiness to commit
violence against property, there would be a risk of detriment to the public if
he were to engage in estate agency work.
The appellant
appealed to the High Court. Buxton J dismissed his appeal on May 11 1995*. In
the course of his judgment, which dealt with several grounds of appeal not
pursued before us, he considered questions of law raised by the appellant and
summarised by the learned judge as follows:
*Editor’s
note: See [1996] 1 EGLR 229
I, therefore,
turn to the issues of law raised by this appeal. They are concerned with the
proper construction of section 3. For the purposes simply of identification I
describe three questions as follows:
(1) Does the
expression ‘convicted of an offence’ in section 3(1)(a)(i) of the Act
extend to a conviction before the commencement of the Act?
(2) Does that
phrase extend to conviction of an offence, and if so of what type of offence,
in a court outside the United Kingdom?
(3) Were the
offences of which Mr Antonelli was convicted under the law of Michigan properly
characterised by the Secretary of State as offences of violence?
The judge held
that the expression ‘convicted of an offence’ did extend to a conviction before
the commencement of the Act. It had been argued that he should construe the Act
so that it did not have retrospective effect, but the judge, after considering
the authorities to which he had been referred, rejected the argument that, to
hold that the Act was capable of referring to conviction before the passing of
the Act, was to give it retrospective effect. He said:
The whole
object of the 1979 Act was to introduce limitations on estate agents that had
not previously existed at all. Most of those limitations could only operate
from the Act’s inception, and in respect of events occurring after its
inception, because many of the grounds refer to breaches of requirements newly
introduced by the Act. But the ability of the Director General to interfere at
all was new. That, in itself, could well be said to take away, from persons
currently practising estate agency, a vested right or to introduce a new
disability, because before 1979 there was no control at all over estate agents.
It seems to me that parliament, having decided that estate agents should, in
the future, be controlled, and having chosen as one important test of their
suitability that those who were convicted of crimes of fraud or violence should
prima facie not practise as estate agents … it is not easy to think that
parliament would have limited that disqualification to those convicted in the
future, whether or not the absence of such a limitation causes the legislation
to be technically characterised as retrospective.
On the
question whether the offences referred to were limited to those under United
Kingdom law, the judge also rejected the appellant’s contentions. He considered
one argument that, if a reference in a United Kingdom statute to an offence is
intended to include offences which occur abroad as well as to those occurring
in the United Kingdom, it is the practice to say so expressly. He had been
asked to hold that, by analogy with the Extradition Act, any foreign offences
should at least have a comparable offence in the English criminal law. The
judge rejected both these arguments. He had no doubt that parliament was
concerned about criminality as shown by criminal conviction, and there was
clearly no intention to exclude all foreign convictions even though they fully
justified a finding under section 3(2). Rejecting the third submission that the
offence of which the appellant had been convicted in Detroit was not an offence
of violence, the judge relied on the definition of violence cited to him from
the Oxford Dictionary as:
The exercise
of physical force so as to inflict injury or to cause damage to on, persons or
property.
He said:
Once it is agreed
that violence can be directed against property, as well as against the person,
I can see no reason for saying that setting fire to property is not an act of
violence towards it.
After giving
one or two colourful examples of setting fire to property, which would
ordinarily be regarded as violent, the judge rejected this ground of appeal.
In his
submissions for the appellant, Mr Michael Beloff QC asked the court to reverse
the judge’s decision on five grounds.
(i) The judge
was wrong to hold that the Estate Agents Act 1979 had retrospective effect
enabling the Director General of Fair Trading to take into account a conviction
occurring before May 3 1982;
(ii) The judge
was wrong to hold that the reference to a conviction in section 3(1)(a)(i)
of the Act included a conviction before a foreign tribunal;
(iii) Even if
the reference to offences included foreign offences, nevertheless the judge
should have held that such offences must also be offences known under the law
of the United Kingdom;
(iv) The judge
was wrong to hold that the offence of burning property which was not a
dwelling-house was an offence of violence;
(v) The judge
ought to have set aside the order of the Director General of Fair Trading,
since in that order the director relied on a ground different from that set out
in the notice of proposal. The notice
conviction for an offence involving violence, whereas the notice of decision relied
on the same conviction as conviction for an offence of fraud or other
dishonesty.
Ground (i)
Mr Beloff
founded his argument on the fact that before the Act came into force any person
had a right to engage in practice as an estate agent. All those in practice
when the relevant provisions of the Act came into force on May 3 1982 could be
affected by powers then given to the Director General to disqualify a person
from continuing to practice. The Act should therefore be construed in
accordance with the general principle that parliament does not intend the
provisions of an enactment to have retrospective effect in the absence of
express words or clear implications. He relied on the general principle
elucidated by Lord Brightman in Yew Bon Tew v Kenderaan Bas Mara
[1983] 1 AC 553, at p558F.
A statute is
retrospective if it takes away or impairs a vested right acquired under
existing laws, or creates a new obligation, or imposes a new duty, or attaches
a new disability, in regard to events already past.
The Act by
giving powers to the Director General of Fair Trading to impose an order of
disqualification on a person already practising as an estate agent would, if
the power was exercisable in respect of convictions which had taken place in
the past, be imposing a new disability in regard to events already passed. The
Act could reasonably be interpreted as applying only to convictions taking
place after the passing of the Act, and accordingly it should be so construed.
Mr Beloff
criticised the judge’s decision because he had relied by analogy on the
decision of the Divisional Court in In re A Solicitor’s Clerk [1957] 1
WLR 1219. The authority of this decision was questioned by Staughton LJ in Secretary
of State for Social Security v Tunnicliffe [1991] 2 All ER 712, at
p724D. But Buxton J regarded the case of In re A Solicitor’s Clerk (supra)
as the nearest parallel to the circumstances of the present case. He pointed
out that the passage in the judgment of Staughton LJ in Tunnicliffe (supra)
in which he expressed doubts about the validity of the decision was immediately
followed by a passage cited with approval by Lord Mustill in L’Office
Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd, The
Boucraa [1994] 1 AC 486, at p524. Yet Lord Mustill did not refer to or
express any doubts about the decision in In re A Solicitor’s Clerk (supra).
In that case the disciplinary committee of the Law Society made an order that
no solicitor should employ the appellant in connection with his practice as a
solicitor. It was alleged that the appellant, who was a solicitor’s clerk, was
employed by solicitors in Brighton when he had been convicted in 1953 of four
charges of larceny and sentenced to five years’ imprisonment. The charges
concerned money or property which did not belong to, nor was it held or
controlled by, the solicitor by whom he was employed or any client. Until the
Solicitors (Amendment) Act 1956 amended section 16 of the Solicitors Act 1941,
the disciplinary committee had no power to make an order unless the property
concerned was money or property belonging to or held or controlled by the
solicitor by whom the clerk was employed or by a client. It was therefore
argued that the amendment of section 16(1) by the Act of 1956 could not apply
to the appellant’s convictions in 1953. Lord Goddard CJ in the reserved
judgment of the Divisional Court referred to the fundamental rule of English
law that no statute should be construed to have retrospective operation unless
such a construction appears very clearly in the terms of the Act or arises by
necessary or distinct implication. He held, however, that the Solicitors
(Amendment) Act of 1956 was not in truth retrospective. He said:
It enables an
order to be made disqualifying a person from acting as a solicitor’s clerk in
the future and what happened in the past is the cause or reason for the making
of the order, but the order has no retrospective effect. It would be
retrospective if the Act provided that anything done before the Act came into
force or before the order was made should be void or voidable, or if a penalty
were inflicted for having acted in this or any other capacity before the Act
came into force or before the order was made. This Act simply enables the
disqualification to be imposed for the future which in no way affects anything
done by the appellant in the past.
Accordingly
the appeal was dismissed.
The purpose of
the provision in the Solicitors Act considered by the Divisional Court was
obvious and the change wrought by the Solicitors (Amendment) Act 1956 did not
alter the type of effect of the provision, but only extended the property to
which it applied, so that when Lord Goddard referred to the Act not being in
truth retrospective and went on to describe its effect against the background
of the passage quoted from Maxwell on the Interpretation of Statutes
on which Lord Brightman based his statement of principle in Yew Bon Tew
(supra), the Lord Chief Justice was, in my opinion, adopting a similar
approach to the construction of the Act of 1956 to that advocated by Lord
Mustill. But even if it could be said that the reasoning of the Divisional
Court in support of its decision did not strictly weigh all the appropriate
factors, in my view, the decision would have been the same had it done so.
Buxton J gave
full weight to the criticisms of the decision In re A Solicitor’s Clerk
and expressed the view that the court’s approach was a cogent and helpful
analysis of the nature of the order made in that case. I can find no error in
his approach to this decision by the learned judge.
The approach
to the construction of legislative provisions capable of impairing existing
rights by reference to past events was considered by the House of Lords in L’Office
Cherifien des Phosphates (supra) to which Buxton J referred. In his
speech, with which all the other others members of the committee agreed, Lord
Mustill said, at p524G:
My Lords, it
would be impossible now to doubt that the court is required to approach
questions of statutory interpretation with a disposition, and in some cases a
very strong disposition, to assume that a statute is not intended to have
retrospective effect. Nor indeed would I wish to cast any doubt on the validity
of this approach for it ensures that the courts are constantly on the alert for
the kind of unfairness which is found in, for example, the characterisation as
criminal of past conduct which was lawful when it took place, or in alterations
to the antecedent national, civil or familial status of individuals. Nevertheless,
I must own up to reservations about the reliability of generalised presumptions
and maxims when engaged in the task of finding out what Parliament intended by
a particular form of words, for they too readily confine the court to a
perspective which treats all statutes, and all situations to which they apply,
as if they were the same. This is misleading, for the basis of the rule is no
more than simple fairness, which ought to be the basis of every legal rule.
True it is that to change the legal character of a person’s acts or omissions
after the event will very often be unfair; and since it is rightly taken for
granted that Parliament will rarely wish to act in a way which seems unfair it
is sensible to look very hard at a statute which appears to have this effect,
to make sure that this is what Parliament really intended. This is, however, no
more than common sense, the application of which may be impeded rather than
helped by recourse to formulae which do not adapt themselves to individual
circumstances, and which tend themselves to become the subject of minute
analysis, whereas what ought to be analysed is the statute itself.
He quoted with
approval the statement by Staughton LJ in Secretary of State for Social
Security v Tunnicliffe [1991] 2 All ER 712, at p724, that:
It is not
simply a question of classifying an enactment as retrospective or not
retrospective. Rather it may well be a matter of degree — the greater the
unfairness, the more it is to be expected that Parliament will make it clear if
that is intended.
Lord Mustill
continued, at p525F:
Precisely how
the single question of fairness will be answered in respect of a particular
statute will depend on the interaction of several factors, each of them capable
of varying from case to case. Thus, the degree to which the statute has
retrospective effect is not a constant. Nor is the value of the rights which
the statute affects, or the extent to which that value is diminished or
extinguished by the retrospective effect of the statute. Again, the unfairness
of adversely affecting the rights, and hence the degree of unlikelihood that
this is what Parliament intended, will vary from case to case. So also will the
clarity of
circumstances in which the legislation was enacted. All these factors must be
weighed together to provide a direct answer to the question whether the
consequences of reading the statute with the suggested degree of
retrospectivity are so unfair that the words used by Parliament cannot have
been intended to mean what they might appear to say.
Later, after
considering other statutes and decisions upon them, Lord Mustill said, at
p527D:
These cases
do not point directly to a conclusion, but they do demonstrate that where an
intermediate type of retrospectivity is in issue the purpose of the legislation
and the hardship of the result contended for are of particular importance.
Adopting this
approach, I start with the declared purpose of the Estate Agents Act and the
policy behind its enactment that it is intended to make provision ‘with respect
to the carrying on and the persons who carry on’ estate agent’s activities. The
provisions giving the Director General power to disqualify are intended for the
protection of the public, and it would be quixotic to suppose that parliament
intended that the public should be protected from the activities of a
practitioner convicted a week after the Act came into force, but not from those
of the practitioner convicted a week before. Should parliament be supposed to
have regarded the imposition of a disqualification which precluded a person
convicted of a serious mortgage fraud only a month or two before the passing of
the Act from continuing to act as an estate agent as ‘unfair’? In my view,
parliament might well have considered it unfair to allow such a person to
continue in practice to the possible detriment of the public, while prohibiting
a person convicted of a similar offence, a month or two after the Act came into
force.
I turn to the
hardship of the result if the power given to the director is exercisable in
respect of past convictions. I accept that an order of disqualification from
carrying on the practice of estate agency is severe and could be a catastrophic
hardship. But the conviction of an offence involving fraud or other dishonesty
or violence is only a precondition upon which the director’s powers are
exercisable. If satisfied that the person concerned has been convicted, the
Director General still has to consider whether he is unfit to carry on estate
agency work generally or of a particular description and has a wide discretion
in determining whether that is so or not. Thus, the past conviction is not by
itself determinative of the imposition of an order of disqualification. Thus,
it seems to me that parliament clearly intended to give the director power to
make an order of disqualification in respect of past convictions while trusting
in his discretion whether he did so or not. I do not regard it as inconceivable
that parliament regarded conviction in the past as so contradictive of the
protection of the public in the future, that the director ought not to have the
power to make an order where such conviction is proved. The words of section
3(1)(a)(i) are unqualified save that the offence must involve fraud or
other dishonesty or violence. Moreover, I note that in the supplementary
provisions as to orders under section 3 contained in section 5(4) where the
only ground for the order is a conviction which becomes spent for the purposes
of the Rehabilitation of Offenders Act 1974, the order ceases to have effect on
the day on which the conviction becomes so spent.
In the most
serious of cases to which the Rehabilitation of Offenders Act applies,
convictions will not become spent for a period of 10 years. Some offences are
regarded as so serious that they do not become spent at all and the imposition
of the sentence by the sentencing court is clearly regarded as a measure of its
gravity. It is therefore a further factor indicative of parliament’s intention
that the powers of the director to make an order of disqualification could not
be founded on an offence which had become spent under the Rehabilitation of
Offenders Act (which incidentally applies to conviction for offences before a
court outside the United Kingdom: see section 1(4)(a)). Thus, parliament
may well have considered it not unfair to impose a disqualification albeit with
severe hardship on those who were already practising estate agents in a case in
which the practitioner had a previous conviction for an offence which was not
or could not be regarded as rehabilitated.
Taking account
of these factors, I am satisfied the judge was right to hold that the word
‘conviction’ includes conviction before the passing of the Act.
Ground
(ii)
I can see no
ground for confining the word ‘conviction’ so that a conviction before a court
outside the United Kingdom for fraud, dishonesty or violence is excluded. By
1979 fraud and dishonesty had already achieved an international dimension.
Parliament is unlikely to have intended that a person convicted of serious
fraud, for example in France, should be able to commute from Calais to Dover
and there to carry on practice as an estate agent. The fact that the matters
listed in subsection (a)(ii) and (a)(iii) are offences which can
arise only under United Kingdom legislation is, in my view, beside the point. I
do not regard it as anomalous that offences committed outside the United
Kingdom should be the subject-matter of subsection (i). Nor do I consider that
the fact that in other statutes parliament has been careful to define the
territorial extent of the expression ‘conviction’. In my view, the purpose of
the Act is a more persuasive consideration and it would seem to me anomalous if
parliament had not intended convictions for fraud, dishonesty or violence
outside the United Kingdom as qualifying to enable the director to make an
order that a person so convicted was unfit to carry on estate agency work
generally. Moreover, in the reference to the Rehabilitation of Offenders Act
1974 I consider points to the fact that conviction in section 3(1)(a)(i)
was meant by parliament to include conviction for an offence before a court
outside the United Kingdom.
Ground
(iii)
Mr Beloff
argued that, if foreign offences were to be within section 3(1)(a)(i) of
the Act, they must, by analogy with the definition of extradition crime in the
Extradition Act 1989, also be offences under the law of the United Kingdom. He
said that if foreign offences were to qualify, a similar provision to that
contained in section 2 of the Extradition Act 1989 would have been included.
Further, he argues that the conviction of the appellant in Michigan for
‘burning real estate other than a dwelling house’ was conviction for an offence
which has no equivalent in the United Kingdom. In particular, he said that
under the law of the state of Michigan there was no requirement that the
property burnt should be the property of another. In fact the property in question
was owned by the appellant himself. Thus it is said that the appellant could
not have been found guilty by a United Kingdom court on a charge framed as the
charges were in the Recorder’s Court in Detroit. This is undoubtedly true,
though a person who damages his own property reckless whether the life of
another would be endangered does commit an offence under section 1(2) of the
Criminal Damage Act 1971 and persons who set fire to property to defraud
insurers are seldom conscientious for the safety of others.
I can see no
justification for including a double criminality requirement for the offences
referred to in section 3(1)(a)(i). The offences are described as:
Involving
fraud or other dishonesty or violence.
That
description itself suggests that the offences must be of a particular kind and
not necessarily specific to the law of the United Kingdom. Moreover, conviction
for offences of the kind referred to are clearly related to the purpose of the
statute. The question is not whether the convictions are for specific offences,
but whether the convictions are for offences which involve particular
attributes. I would reject this ground of appeal.
Ground
(iv)
The question
raised by this ground is whether an offence involving violence within the
meaning of section 3(1)(a)(i) of the Act means an offence involving
violence to the person. Does it also include the
750, section 73, of the Michigan Criminal Law Act was committed by any person
who ‘wilfully or maliciously burns any building or other real property or the
contents thereof … the property of himself or another’.
The definition
of ‘violence’ from the Oxford Dictionary cited by the judge was:
The exercise
of physical force so as to inflict injury on, or cause damage to, persons or
property;
The question
is whether violence was used in this sense in the subsection.
I can see no
justification for confining the word ‘violence’ to violence to the person. In
the context of an offence related to activities in connection with estate
agency and the management of property, the unlawful eviction of the occupiers
of premises with the threat of violence is one of the situations in which
property managers have been known to commit an offence ‘involving violence’.
Thus, a threat or an attempt to set fire to property even if no actual danger
to life or limb would be expected is, to my mind, an offence ‘involving
violence’ within the meaning of the section. Accordingly, I have no doubt that
parliament intended that convictions for an offence involving violence towards
property should be within section 3(1)(a)(i).
Ground (v)
Mr Beloff’s
final point attacks the validity of the director’s decision. It was not a
ground argued before the judge though other similar grounds were advanced.
In the notice
of proposal given by the director, he stated as the grounds for the proposed
order that the appellant had been convicted of an offence involving violence
within the meaning of section 3(1)(a)(i) of the Act and specified the
conviction for arson in the Recorder’s Court of the city of Detroit on February
28 1973. In giving notice of decision in accordance with the section and para 9
of Schedule 2, the director’s adjudicating officer, after stating that he was
satisfied that the appellant was convicted of that offence, said:
I further
find that the offence referred to in para 5(i) above is an offence of fraud or
other dishonesty within the meaning of sec 3(1)(a)(i) of the Act. I
accordingly rely on this as grounds for the order and as empowering me to make
an order under sec 3(2) of the Act …
Mr Beloff
submits that the order is bad on its face since it relies upon a different
ground for making the order than the ground set out in the notice of proposal.
He argues that the importance of the notice of proposal is to enable the person
affected by the order to make representations, which it is the duty of the
director to take into account that, accordingly, the appellant could have been
deprived of an opportunity of making representations that the offence did not
involve fraud or dishonesty.
As earlier
indicated, the words ‘involving fraud or dishonesty or violence’ are
descriptive of the offence. The particular offence relied on both in the notice
of proposal and in the notice of decision was the same offence. It was open to
the appellant if he could honestly do so to submit that the offence referred to
in the notice of proposal involved neither fraud, dishonesty nor violence, but
in fact he made no representations to the director. In fact it would appear
that in addition to being an offence involving violence towards property, the
offence did involve fraud or dishonesty in the sense that it was committed with
a view to making a fraudulent claim under a policy of insurance on the
property. Where a person sets fire to his own property it is not unusual to
find that the motive is one of unlawful gain, and it is therefore an offence
which in the wider sense may be said to involve fraud or dishonesty. There are
other offences which can involve both fraud or dishonesty and violence and
merely because the director relied on one rather than the other descriptions of
the offence does not, in my view, invalidate his decision. He had power to make
the order if satisfied that the person affected had been convicted of the
particular offence specified in the notice of proposal and that offence could
properly be brought within the description of an offence within section 1(3)(a)(i)
of the Act. In my view, the fact that the specified offence involved one rather
than another of the characteristics would not deprive the director of the power
to make the order provided it could properly be regarded as involving one of
them. I would thus reject this ground and would dismiss the appeal.
KENNEDY and ALDOUS LJJ agreed and did not add anything.
Appeal
dismissed.
