Estate Agents Act 1979 — Appeal against notice of decision that person unfit to carry on estate agency — Whether Secretary of State entitled to recharacterise nature of offences — Whether pre-Act and foreign convictions relevant — Whether conviction for arson one of violence
On October 2
1991 the Director General of Fair Trading issued a notice of decision to the
appellant under section 3 of the Estate Agents Act 1979 to the effect that he
had found as fact that the appellant had been convicted of two offences of
fraud or other dishonesty within the meaning of section 3(1)(a)(i) and
was unfit to carry on estate agency. The first conviction was of arson in
Detroit in 1973 and the second was of harassing a person to pay a debt in
Warrington in 1991. On the appellant’s appeal under section 7 of the Act to the
respondent Secretary of State, the Director General did not rely on the 1991
conviction, which had been quashed on appeal, but did rely on the Detroit
conviction. In dismissing the appeal in August 1993, the Secretary of State accepted
that the appellant had been convicted in 1973, that the appellant was not a fit
person to engage in estate agency and that he 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. On
appeal the appellant contended that the Secretary of State could not substitute
his ground, ie violence for that of the Director General, and had erred in law.
Director General, and subject to the important requirements of natural justice,
the Secretary of State was entitled to consider the whole of the case and all
the material that was notionally before him. On the facts found by the Director
General, the Secretary of State is entitled to give a different
characterisation in law of those facts; he was therefore entitled to substitute
his ground of violence for that of fraud and dishonesty. Section 3(1)(a)(i)
of the 1979 Act extended to convictions before its commencement and to
convictions outside the United Kingdom. The offences the subject of the 1973
Detroit conviction were properly characterised by the Secretary of State as
offences of violence.
The following
cases are referred to in this report
L’Office
Cherifien des Phosphates v Yamashitas-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
Securities
& Investments Board v Financial
Intermediaries, Managers & Brokers Regulatory Association Ltd [1992] Ch
268; [1991] 3 WLR 889; [1991] 4 All ER 398
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, from a decision of the Secretary of
State for Trade and Industry on an appeal by the appellant under the Estate
Agents Act 1979 from a notice of decision by the Director General of Fair
Trading under section 3 of that Act.
Edward
Bannister QC and Renee Calder (instructed by Bray Walker) appeared for the
appellant; Genevra Caws QC and Rabinder Singh (instructed by the Treasury
Solicitor) represented the respondent.
Giving
judgment, BUXTON J said: This is an appeal under section 74 of the
Estate Agents Act 1979, brought by Mr Samuel Antonelli against a decision under
that Act made by the Secretary of State for Trade and Industry. Mr Antonelli is
a citizen of the United States of America who came to the United Kingdom in
about 1979. He did estate agency work in this country, as I understand it, up
to about 1984, but since then has not been employed in that particular
profession.
The order and
matter of which he complains arises, as I have said, under the Estate Agents
Act 1979. It will be necessary later in this judgment to look more closely at
the objects and reach of that Act, but I can say at this stage, by way of
introduction, that it was introduced as some measure of control over the
practice of the estate agency profession in the United Kingdom. It did so not
by creating what might be called pre-entry qualifications or requirements of
licensing, but rather by giving to the Director General of Fair Trading the
ability, on certain grounds, to investigate and, if needs be, make orders
against persons whom he considered to be unfit to do estate agency work. From
such orders made by the Director General of Fair Trading provision is made for
appeal to the Secretary of State and it is against the Secretary of State’s
discharge of such an appeal by Mr Antonelli, an order having been made against
him under the Act, that Mr Antonelli now appeals to this court.
The powers of
the Director General and the grounds upon which orders can be made are to be
found in section 3 of the Estate Agents Act 1979, which I will hereafter refer
to as ‘the Act’. The relevant parts of the Act, for the purposes of the present
matter, are sections 3(1)(a)(i) and 3(2), which together read as follows
(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, …
Section 3(2)
states:
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.
On August 19
1991 the Director General issued what he described as a notice of proposal,
under section 3(2)(a) of the Act, to Mr Antonelli, in which he stated:
… I propose
to make an order under Section 3(2) of the Act prohibiting [Mr Antonelli] from
doing any estate agency work at all.
The reasons
for the proposal were as follows. First, the matters within section 3(1) of the
Act intended to be specified as the grounds for the proposed order were that Mr
Antonelli has been convicted of an offence involving violence within the
meaning of section 31(a)(i) of the Act, in that on February 28 1973, at
the Recorders’ Court in the city of Detroit, he was convicted of arson by
burning real estate other than a dwelling-house and was sentenced to a term of
imprisonment of not less than two and a half years and not more than 10 years.
Second, those matters within section 3(2) of the Act that it was intended
should be taken into account in determining whether Mr Antonelli is unfit to
carry on estate agency work, was that on March 5 1991, at Warrington
Magistrates’ Court, he was convicted of three offences of harassing a person
with demands and subjecting him to distress with intent to coerce that person
to pay a debt claimed to be due under the contract, contrary to section 41(a)
of the Administration of Justice Act 1970.
Mr Antonelli
by that notice was given 21 days within which to submit any representations
that he wished to be made. Mr Antonelli did not avail himself of the
opportunity of making representations. As a result on October 2 1991 the
Director General, acting through his duly authorised adjudicating officer,
issued a notice of decision to Mr Antonelli in which he said:
I find as
fact that Mr Antonelli was convicted:
(i) on 28
February 1973 at The Recorders’ Court of the City of Detroit of arson (by
burning real estate other than a dwelling house) and was sentenced to a term of
imprisonment of not less than 2 years 6 months and not more than 10 years; and
(ii) on 5
March 1991 at Warrington Magistrates’ Court of three offences of harassing a
person with demands, contrary to section 40(1)(a) of the Administration
of Justice Act 1970 and was sentenced to a fine of £500 on each count.
I further
find that the offence referred to in paragraph 5(i) above is an offence of
fraud or other dishonesty within the meaning of section 3(1)(a)(i) of
the Act. I accordingly rely on this as grounds of the order and empowering me
to make an Order under section 3(2) of the Act. I have also taken into account
the offences referred to in paragraph 5(ii) above as matters falling within
section 3(2) of the Act, indicating that Mr Antonelli is unfit to carry on
estate agency work.
I am
satisfied that Mr Antonelli is unfit to carry on estate agency generally within
the meaning of section 3(2) of the Act. I accordingly make an order under
section 3(2)(a) of the Act prohibiting Mr Antonelli from doing any
estate agency work at all.
It is against
that decision that Mr Antonelli appealed to the Secretary of State. He did so
under the provisions of section 7 of the Act, subsections (1) and (2) of which
read as follows:
(1) A person
who receives notice under paragraph 9 of Schedule 2 to this Act of
(a)
a decision of the Director to make an order in respect of him under section
3 or section 4 above, [that is our case] or
(b)
a decision of the Director under subsection (4) or subsection (5) of
section 6 above on an application made by him, may appeal against the decision
to the Secretary of State.
(2) On an
appeal under subsection (1) above the Secretary of State may give such
directions for disposing of the appeal as he thinks just, including a direction
for the payment of costs or expenses by any party to the appeal.
Under the
provisions of regulation 19 of the Estate Agents (Appeals) Regulations 1981
(SI
appointed persons to consider that appeal. Before the appointed persons the
Director General did not rely on the convictions recorded against Mr Antonelli
at Warrington Magistrates’ Court, to which reference has been made in the
documents that I have already read. That was because two of the four complaints
had already been quashed on appeal to the crown court, and a further appeal was
then pending to the Divisional Court. On judicial review of the remaining two
complaints they were also quashed by the Divisional Court, so it should be made
clear that none of the convictions originally entered against Mr Antonelli in
Warrington Magistrates’ Court were eventually upheld. The Director General did,
however, rely on the convictions for arson in Detroit in 1973, to which
reference has already been made.
There was a
lengthy hearing in front of the appointed persons, at the second, adjourned,
part of which Mr Antonelli was represented by counsel. He had originally
represented himself. The appointed persons recommended to the Secretary of
State that the appeal should be dismissed. On August 6 1993 the Secretary of
State issued a notice of directions for disposing of the appeal under section
7(2) of the Act in which he indicated that he dismissed the appeal. He said:
Now, in
pursuance of his powers under Section 7(2) of the Act, the Secretary of State
directs the Director that the order prohibiting the Appellant from doing any
estate agency at all should take effect.
The Secretary
of State’s reasons for dismissing the appeal and giving these directions are
that, having considered the above mentioned report [that was the report of the
appointed persons] and all other relevant circumstances:
(i) he
accepts that on 28 February 1973 at the Recorders 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 not
less than 2 years 6 months and not more than ten years.
(ii) he
accepts that the above convictions are for offences involving violence within
the meaning of Section 3(l)(a)(i) of the Act;
(iii) he
accepts the Appointed Persons conclusions that the Appellant’s convictions are
evidence that he is not a fit person to engage in estate agency work;
(iv) he
considers 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 Secretary
of State accordingly agrees with the Appointed Persons recommendations that the
appeal should be dismissed.
The
convictions in the Recorders’ Court of the city of Detroit were, in that
notice, referred to as an offence of burning property other than a
dwelling-house. The record of that conviction, which is before this court, is
that the convictions were for burning real estate other than a dwelling-house
under chapter 750, section 73 of the Criminal Code of Michigan 1948. I shall have
to return to the exact nature of that conviction later.
Mr Antonelli
appeals against the Secretary of State’s direction or ruling to this court and
asks that the whole decision of the Secretary of State should be quashed. He
can only appeal to this court in respect of errors of law.
I must first
deal with a matter that concerns the status and powers of the Secretary of State
when entertaining an appeal under section 72 of the Act. This was one of a
number of grounds that were adduced in the skeleton argument that was very
helpfully put before me by Mr Edward Bannister QC on behalf of the appellant.
It was not a ground raised in the notice of appeal, but no objection was taken
because it is an important matter going to the nature of the Secretary of
State’s jurisdiction. It is summarised in the appellant’s skeleton argument by
asking the question: was the Secretary of State entitled to substitute his own
ground of violence for that of the Director General’s fraud or other
dishonesty? I suggested to Mr Bannister, and he agreed, that it would be
helpful if this point were considered in advance of the other points, because a
decision on it might illuminate the nature of this court’s inquiry in the sense
of considering whether this court is inquiring into the decision by the
Secretary of State as an appellate decision, or whether it is looking into more
limited powers of the Secretary of State only to pass on those matters that
were relied on by the Director General.
The argument
can be summarised as follows, but not exactly in the words in which it was put
by Mr Bannister. The powers of the Secretary of State under section 7(2) of the
Act, are wide, but they cannot extend to substituting a different ground from
that relied on by the Director General. The Act gives the powers to make the
order to the Director General and not to the Secretary of State. The Secretary
of State’s only function is to determine appeals which involve deciding whether
the Director General’s order is or is not sustainable. He has no power to
treat himself as the authority. That was contrasted with the powers of the
Secretary of State for the Environment, under section 79(1) of the Town and
Country Planning Act 1990, when he is considering appeals in respect of
planning decisions. There the Secretary of State is specifically entitled to
treat himself, in effect, as if he were the local authority. It is submitted
that the absence of an equivalent provision in the present Act demonstrates
that the Secretary of State’s function under section 7 is, as described, purely
appellate: he cannot substitute his own discretion.
On that basis
it is further submitted that the Secretary of State simply had no power to
reach the determination that he purported to reach in this case. He was
restricted to determining whether the Director General observed the
requirements of the Act in making his order and, subject to that, determining
whether Mr Antonelli had, within the true meaning of section 3(1), been
convicted of offences involving fraud or dishonesty, which latter was the way
in which the offences committed were characterised by the Director General. In
other words, this case turns solely on the fact that the Director General’s
order characterised the convictions as being offences of fraud or other
dishonesty, whereas the Secretary of State held, as the reason for rejecting
the appeal, that the convictions were for offences of, involving, violence.
As I
indicated, having heard Mr Bannister’s helpful submissions on this matter, I
cannot agree with this submission. In all the cases envisaged by section 7 of
the Act, which I have already read, there has been a decision of the Director
General about which the appellant can appeal to the Secretary of State. The
question for the Secretary of State is whether the Director General’s decision,
that is to say to ban someone from estate agency work or any other decision of
the type referred to in section 7, should be upheld. When he is so deciding,
there is, in my judgment, nothing to suggest that the Secretary of State
cannot, subject always to the important requirements of natural justice,
consider the whole of the case and all of the material that was notionally
before him at the hearing before the appointed persons. If the Secretary of
State acts in that way, and in so acting upholds the Director General, he is
not, in my judgment, substituting his own order for that of the Director General,
but rather upholding the very order that the Director General made in the first
place. The appeal is against the decision to make the order complained of. The
question is not whether the notice was well founded but whether the decision
was well founded. Looking at the practicalities of the matter, it would seem to
me to be very odd, and, I would venture to say, very undesirable for the public
interest, if in a case where the Secretary of State was not satisfied as to
every detail of the Director General’s reasons, but none the less felt that the
case did properly fall within the Act, he had still, none the less, to quash
the Director General’s order and allow the estate agency practice to continue.
In the present case it would be even more odd if the Secretary of State were
obliged to allow the appeal on the ground presently argued, because the
Secretary of State’s decision involved no new facts over and above those that
have been before the Director General, but simply a different characterisation
in law of those facts. In so proceeding the Secretary of State is not
substituting himself with the Director General as the decision-making body, but
rather adopting a different legal characterisation from that of the Director
General on the facts found by him as justified in this court order.
The position
is, in any event, different from that under the Town and Country Planning Act,
to which my attention was drawn. But also, as I think it was accepted, to at
least a degree, planning issues tend to be much more complicated and to raise
more extensive questions than those characteristically arising under this Act.
Planning cases commonly call for the imposition of conditions on appeal which
the Secretary of State could not impose if it could even conceivably be argued
that he was only able to give a yes or no reply to a complaint by a person
affected by the original order. In that case I do not find it surprising that
specific powers are given to the Secretary of State to act as if he were the
original authority. In my judgment, no powers are required here to enable the
Secretary of State to dispose of the appeal in the way in which he did in this
case.
Mr Bannister
further argued that the decision on satisfaction as to the suitability of the
applicant for estate agency work under section 3(2), had to take account of the
matters that have been found under section 3(1). The Secretary of State could
not satisfy himself on the basis of the offence being one of violence when the
Director General had satisfied himself on the basis of the offence being one of
fraud. I do not agree. The question, in my judgment, is whether the facts
found: (1) satisfy the preliminary requirement of section 3(1); and (2) justify
the making of the order. Those are separate questions. In this case the
Secretary of State has made clear what his grounds, based on the conviction,
were. That was within his powers in upholding the Director General’s order.
As I have
said, the Secretary of State is, of course, bound by the requirements of
natural justice. He will have to ensure that the applicant has been heard by
the appointed persons on the issue on which the Secretary of State upholds the
order. Mr Antonelli’s counsel did address the appointed persons on the question
of whether this was an offence of violence and they made a finding on that
point. However, even if that had not happened I would not be disposed to say
that a breach of natural justice or other irregularity had occurred if, in the
event, the Secretary of State was correct on the matter of law which is
involved in characterising this offence as one of violence.
That being the
view that I take of the ambit of the Secretary of State’s powers, the appeal
before me was able to be narrowed down to the question of whether the grounds
relied on by the Secretary of State, as set out in his notice, disclose an
error of law. I should say that Mr Bannister wished to reserve other grounds
based on failings in the Director General’s notice which, in view of my
preliminary ruling on the nature of the Secretary of State’s powers, could not
be pursued but which he might wish to pursue further in conjunction with
reopening my preliminary decision. The ground that he wished to reserve, though
I, of course, do not limit him to this, was (I will set it out briefly for the
purposes of reference) that the Director General’s order relied on the offence
as being one of fraud, when in the notice of proposal it had been characterised
by the Director General as an offence of violence. Mr Bannister raises the
question of whether that change of stance, without further notice to Mr
Antonelli, itself rendered the Director General’s notice and the Director
General’s order, invalid or a breach of natural justice, so as to oblige the
Secretary of State, if his power was simply that of reviewing the previous
procedure to allow the appeal in any event. As I have said, that question did
not arise before me, but it is reserved by the applicant.
I also
indicated during the hearing that I did not think that, in the light of my
ruling on the nature of the Secretary of State’s powers, it was relevant to
consider the various complaints made in the notice of appeal about the conduct
of the hearing before the appointed persons, except to the extent that such
failings were alleged to have affected the decision made by the Secretary of
State. Those complaints are set out in ground 2 and partly in ground 1 of the
notice of appeal. In the event, no argument was put before me that those
failings, if indeed they were such, had affected the Secretary of State’s
judgment.
Mr Bannister
did, however, argue that whatever the grounds were on which the Secretary of
State decided, his conclusion must be wrong in law, or at least open to
challenge, because it followed a hearing that had been conducted in breach of
natural justice. The complaints particularly made, though again I do not
suggest they were limited to this, were that Mr Antonelli’s counsel had not
been allowed to address the appointed persons on two questions of law with
which I shall shortly have to deal. I cannot agree that the law is rigid in the
way in which this submission would require it to be. Provided the grounds on
which the Secretary of State proceeded were properly and fairly considered by
him, it was open to him to proceed upon the basis of the appointed person’s
hearing, even if, on other points which the Secretary of State did not adopt,
that hearing may not have been wholly satisfactory. Moreover, the particular
complaint identified before me was a failure to hear submissions on matters of
law. That failure, if any, will be cured by this appeal. Those questions are
not matters of judgment, but issues on which the Secretary of State is either
right or wrong and on which this court will, if he has reached the wrong
conclusion, put him right, whatever procedure he adopted in reaching that
conclusion.
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?
On all these
three points I have had detailed and helpful submissions from both counsel.
I turn, first,
to the question of whether the expression ‘convicted of an offence’ extends to
conviction before the commencement of the Act. The 1979 Act introduced a system
in respect of estate agency that was colloquially described as ‘one of negative
licensing’; that is to say, one could continue in practice as an estate agent
without prior licensing until reasons were discerned by the authorities for
thinking the person concerned was no longer fit, or was not fit, to practise in
that way. In that respect the Act was, and was emphasised by its ministerial
sponsors, to be unlike other licensing provisions, where in respect of most or
all other professions one has to be licensed before entering the profession.
The licensing
rules under the 1979 Act were necessarily introduced after the conviction in
1973 upon which the Secretary of State proceeded. The applicant contends that
that means that the Act is being applied by the Secretary of State incorrectly,
because it is to be assumed that it does not have what can be described in
broad terms, though in terms that are perhaps somewhat misleading,
retrospective effect. Particular emphasis is placed on a statement of Lord
Brightman in the case of Yew Bon Tew v Kenderaan Bas Mara [1983] 1
AC 553 at p558F.
… there is at
common law a prima facie rule of construction that a statute should not
be interpreted retrospectively so as to impair an existing right or obligation
unless that result is unavoidable on the language used. 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 passed.
The applicant
places particular emphasis on the words ‘attaches a new disability’ and says
that in this case a new disability will have been imposed on Mr Antonelli if
the Secretary of State acts on the 1973 conviction. Before 1979 Mr Antonelli,
and anybody else, was able to practise as estate agents without any form of
public control at all. It must therefore be assumed that the phrase ‘convicted
of an offence’ does not include convictions for pre-1979 offences. To rely on
such an offence would place the estate agent under a disability that he was not
under before the passing of the Act, and would therefore conflict with the
principle enunciated by Lord Brighton in Yew Bon Tew.
For reasons
that I will elaborate towards the end of this section of my judgment, this case
seems to me to be unlike any of the others that have recently been considered
in connection with fears about retrospectivity of legislation. Its nearest
parallel is to be found in the case of In re A Solicitor’s Clerk [1957]
1 WLR 1219. In that case there was an amendment in 1956 in the legislation that
controlled the conduct of employees of solicitors and, more particularly,
limited the matters that could be taken into account in considering whether
they were fit for employment. The Act of 1941, which is conveniently set out at
the bottom of p1220 of the report, said:
where a
solicitor’s clerk had been convicted in respect of a criminal offence
concerning money or property held by, or controlled by, the solicitor by whom
he was employed or by any client of such solicitor … an application may be made
… to the Disciplinary Committee [of the Law Society]
An amendment
was made in 1956 to extend that power to any case of ‘larceny, embezzlement,
fraudulent conversion’. The Law Society took action against the complainant in
respect of a conviction of larceny in 1953, that is to say that occurred before
that particular form of conduct had been brought within the purview of the
statute. It was complained that the Act of 1956 could not be applied to an
offence taking place before its passing because that would be in breach of the
fundamental rule of statutory interpretation that no statute should be
construed to have a retrospective operation unless that appears clearly in the
terms of the Act or arose by implication from it.
The Divisional
Court, presided over by Lord Goddard CJ, said at p1222:
But in my
opinion this Act is not in truth retrospective. 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 a disqualification to be imposed
for the future which in no way affects anything done by the appellant in the
past.
I have to say,
with respect, that I find that approach a cogent and helpful analysis of the
nature of the order made in that case, but even if I did not I would have great
difficulty in not applying the approach in In re A Solicitor’s Clerk to
the present case. Although, of course, the facts are different between the two
cases, the construction both of the respective pieces of legislation, and of
the facts that pose the problem in the two cases respectively are analytically
very close. Indeed, as I shall seek to demonstrate at the end of this section
of the judgment, this case is, in my judgment, a fortiori of In re A
Solicitor’s Clerk In re A Solicitor’s Clerk is thus a decision of a
division of this court presided over by the Lord Chief Justice in a case
analytically close to the present. I would not think myself free not to follow
it unless I was firmly persuaded that it was incorrect.
It was
suggested that the world had moved on since In re A Solicitor’s Clerk and
that that decision appeared to ignore or undervalue at least the principle
stated by Lord Brightman in Yew Bon Tew. I do not agree. First, In re
A Solicitor’s Clerk is a decision on whether the legislation was
retrospective at all. Second, Lord Brightman in Yew Bon Tew was not enunciating
a new principle but was taken from a well-known and long-standing textbook. I
cannot, therefore, accept the general proposition that Lord Brighton enunciated
was not part of the law in 1957. The court in 1957 must be taken to have had
that case or that principle in mind, having itself referred, not to the same
textbook, but to the acknowledged law on retrospective construction. Further,
not only is In re A Solicitor’s Clerk a decision of a division of
this court, but it has never been, as far as anyone has been able to tell me,
over ruled nor, save in one instance, criticised or doubted.
It is to that
criticism that I must now turn because although, as I say, I am minded to apply
In re A Solicitor’s Clerk to this case for the reasons I have
given, in deference to the helpful and sustained argument that I have received,
I should not, I think, address the matter simply on the basis of authority, but
rather look also at the other arguments that were addressed to me. The speech
in which doubt was raised about In re A Solicitor’s Clerk was that of
Staughton LJ in the case of Secretary of State for Social Security v Tunnicliffe
[1991] 2 All ER 712. The lord justice at p724, when speaking generally
about the difficulties of deciding whether the interpretation sought to be made
of a statute was, in this sense, retrospective, referred to the passage from
Lord Brightman’s judgment in Yew Bon Tew that I have already read, and
then went on to say at p724D:
A good
illustration of the difficulty is afforded by Re a Solicitor’s Clerk … There
the clerk had been convicted of larceny in 1953. As the property stolen had not
belonged to his employer or to any client of his employer, it was only by
virtue of s11 of the Solicitors (Amendment) Act 1956 that an order could be
made that no solicitor should employ him without permission of the Law Society.
From the point of view of the clerk, that was in my view plainly retrospective
legislation if he was caught by it: a new disability was imposed in respect of
his sins in the past. So far as any employer was concerned, however, I would
not say that the legislation was retrospective. It regulated whom he might
employ in the future. The Divisional Court upheld the order; but it will be
apparent that I have doubts about the decision.
In my
judgment the true principle is that Parliament is presumed not to have intended
to alter the law applicable to past events and transactions in a manner
which is unfair to those concerned in them, unless a contrary intention
appears. It is not simply a question of classifying an enactment as
retrospective or not retrospective. Rather it may well be a matter of
degree
Parliament will make it clear if that is intended.
I have to acknowledge
that Staughton LJ (but not, in my judgment, the other lord justices in that
case) expressed that about In re A Solicitor’s Clerk; doubts
that, however, were not part of the ratio of Staughton’s LJ judgment.
The latter
part of the passage that I have cited was picked up in the House of Lords by
Lord Mustill in the case of The Boucraa [1994] 1 Lloyd’s Rep 251* at
p258. Lord Mustill warned against the dangers of simply characterising
legislation as retrospective or not retrospective, and took up the more general
approach that had been suggested by Staughton LJ in the case to which I have
just made reference. He said at p258:
*Editor’s
note: L’Office Cherifien des Phosphates v Yamashitas-Shinnihon
Steamship Co Ltd.
True it is
that to change the legal character of a person’s acts or omissions after an
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 then went
on to cite the passage of Staughton LJ, that I have already read, starting with
the words: ‘In my judgment the true principle …’. Looking at the matter on that
basis, and bearing in mind Lord Mustill’s warning, one looks at this statute
and asks oneself: what is the alleged unfairness in respect of the Secretary of
State’s reliance on the 1973 conviction? Or more generally: what is the
unfairness of a statute that allows the Secretary of State, on its true
construction, to rely on that conviction? In Yew Bon Tew the problem was
the loss by a party of a limitation defence. Lord Brightman pointed out that
parties arrange their affairs on the basis of the law of limitation. In the
present case nobody could have arranged their affairs on a basis that a
conviction would never be a bar to working as an estate agent.
The real point
here is that section 3 gives power to the authorities to decide on a person’s
present fitness to work as an estate agent. In order to do that it must, in
commonsense, mean that they are permitted to look at past conduct. If that past
conduct shows the person is presently unfit, it is difficult to say that it is
unfair to allow past conduct that happened before the coming into being of the
Act to be taken into account. Lord Mustill in the Yew Bon Tew at p259
said about this matter of looking backwards:
My lords, the
problem of a statute which creates powers exercisable in the future by
reference to a continuous period of time antecedent to their exercise, and
which comes into force whilst that period is running is not new: … The cases
show that the presumption against retrospectivity does not necessarily entail
that the period antecedent to the statute should be left out of account.
I find that
last sentence helpful in the present case. A somewhat similar view was taken by
Morritt LJ in the case of Securities & Investments Board v Financial
Intermediaries, Managers & Brokers Regulatory Association Ltd [1992] Ch
268, which I do not need to go into but save to say that his lordship reviewed
a number of cases raising the sort of problem that Lord Mustill referred to in The
Boucraa and came to broadly the conclusion that Lord Mustill himself
reached. In particular, one of the cases that Morritt J had under review was
the case of In re A Solicitor’s Clerk, which he referred to without
criticism. That emboldens me to think that that case is in line with the
approach suggested by Lord Mustill in The Boucraa.
As I have
said, the Director General and the Secretary of State are now obliged after
1979, the Act having been introduced, to investigate fitness to work. I see no
good reason why they should be inhibited from looking at pre-1979 events
provided they are able reasonably to conclude, as the Secretary of State did in
this case, that those events in the past demonstrate a present risk of
detriment to the public if the applicant engages in estate agency work.
I have looked
at this question from the point of view of general principle, but there is a
further point in the present case linked to the observations I have just made.
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, or rather should be reviewed as to their suitability
as such, 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. That is why, as I have said earlier, in my view, the facts of
this case are a fortiori of those in In re A Solicitor’s Clerk. In
that case alterations were made in an existing system of control; in this case
the whole system of control itself is new.
I was taken to
the Hansard debates on this matter. I leave aside argument which I did
not have to hear as to whether I should look at such material at all in this
case, because the passages that were put to me did not help me on the problem I
have to decide.
In this case
the regulation introduced is for the future, but there is nothing, in my view,
to suggest that in the present important respect it was intended to give an
agent, previously convicted of a crime, a right to continue to practise despite
the introduction, for the first time, of the controls under the Act. This
complaint, therefore, about the Secretary of State’s decision fails.
The second
question is whether the Secretary of State was right to take account of
convictions in courts outside the United Kingdom; or, as it was put at one
stage, are the offences to which section 3(1)(a) refers limited to
offences under UK law? There is an initial difficulty about that formulation,
that there is no such thing as United Kingdom law. The present Act extends to
the whole of the United Kingdom, but it does so through the medium of three
separate systems of criminal justice, those of England and Wales, Scotland and
Northern Ireland. If the argument were correct that the concept of ‘offence’
had some limited territorial implication, it would not, I have to say, be
self-evident to me that an English estate agent should be barred on the basis
of a crime committed by him on holiday in Scotland, bearing in mind that the
content of Scottish criminal law is not the same as that of England. However,
even if that might be thought to be a somewhat pedantic point (and I emphasise
it was raised by the court and not by the respondent), I can at least say (and
here, I think, if I do not have the respondent’s counsel’s support, at least I
do not have her opposition) that if ‘offence’ is limited to offences occurring
within the United Kingdom, then one would expect that to be specifically
indicated: as, indeed, it is in two statutory provisions to which I was taken,
section 24(a) of the Extradition Act 1989 and section 57(3) of the Powers of
the Criminal Courts Act 1973. It is argued against that that where statutes do
extend references to offences beyond those arising in the United Kingdom that
is stated expressly. The only example that was put before me and, I believe,
the only available example, is to be found in section 1(4) of the Rehabilitation
of Offenders Act 1974, which says:
In this Act,
references to a conviction, however expressed, include references —
(a)
to a conviction by or before a court outside Great Britain;
It is
suggested that one would expect a similar provision in this Act. I cannot
agree. The Rehabilitation of Offenders Act does not establish
one should more properly say parliamentary, practice. Looking at the
Rehabilitation of Offenders Act, without the benefit of section 1(4)(a),
there might well be cause for uncertainty as to whether the elaborate system
that that Act institutes for release from (principally) civil disabilities,
springing from convictions, extended so far as to grant that release in respect
of convictions arising outside the United Kingdom. The fact that there might be
cause for uncertainty about that matter may be demonstrated by the fact that
this court, which has some experience of the application of the Rehabilitation
of Offenders Act, had no idea at all until listed in this case that it extended
to convictions outside Great Britain.
However, be
that as it may, what one can at least say about the Rehabilitation of Offenders
Act, and about the passage I have just read, is that it seems to show that
parliament has no difficulty in envisaging the concept of convictions outside
the United Kingdom being considered by the United Kingdom courts. Nor can I
agree that there is any parallel here with the law of extradition. That law deals
with people who have not been convicted but who are to be forcibly removed by
the use of the coercive powers of our state to another jurisdiction. It is not
surprising, and it is in accord with the international conventions, that the
coercive power of the British State in that case is only used against persons
who have allegedly done things which would be a crime if committed in Britain.
The present case is quite different. It involves a decision as to what existing
convictions may be used by the Director General in considering whether a person
is unfit to carry out estate agency work. I, for my part, would find it
surprising if any conviction in his native state was automatically excluded
from that consideration.
It should also
be noted that the argument at this stage, and I shall mention shortly a
variation of it, is and must be that all foreign convictions have to be
ignored, even if they clearly would be offences committed in the United
Kingdom. So, for instance, if an estate agent were working in his firm’s branch
office in Spain, and while there he defrauded or even assaulted customers,
British or Spanish, who were buying property there and he was so convicted in
Spanish courts, nevertheless, on the argument presently under consideration,
the Director General would be powerless to act when he came back to the United
Kingdom to recommence business here. I do not think that is likely to have been
parliament’s intention.
There is a
variation on this argument, which is as follows. Even if convictions outside
the United Kingdom may be included, do they have to be convictions for an
offence that is known to, or is the same as, a United Kingdom offence? This was
originally advanced as a separate argument but I think Mr Bannister accepted,
or indeed urged, that it is also to be looked at as an element of the argument
that I have just discussed. It is, in effect, the reverse side of the coin from
the argument as to the unlikeliness of a foreign offender being better off than
the English offender. The offences of which Mr Antonelli was convicted in the
Recorders’ Court in Detroit were of burning property. Under the section of the
Michigan Code that he was convicted under there is no requirement that that
property should be the property of another. So this case itself illustrates
that an overseas offender may be in jeopardy in respect of conduct which, if
committed in the United Kingdom, would not be an offence. That may appear to
work to the disadvantage of a foreign applicant, or alternatively of an English
or Scottish applicant who had been working abroad. But, in my judgment, it is
far from clear that such a person is properly to be described as handicapped,
or properly to be described as being treated other than as parliament intended.
If that person had done something that can properly be characterised as
committing an offence in his own country, or in the country where he happens to
be, I see no obvious reason to think that parliament would wish to defend the
Director General and the Secretary of State from considering that offence when
deciding whether that person is fit to be an estate agent of the United
Kingdom.
The criminal
laws of all states are, of course, not exactly uniform, but there is an obvious
and universal obligation that such criminal laws as do exist must be obeyed by
the people in the territory to which those laws apply. It was suggested in the
skeleton argument, although I think not seriously pursued in an argument before
me, that that might let in what could be described as somewhat exotic foreign
laws, that might hypothetically exist in some countries. In respect of such,
one has to remember that the Director General has to be satisfied not only that
the offences can be characterised as falling under section 31(1)(a)(i),
but also that the person concerned is unfit to be an estate agent under section
3(2). In the case of an offence that, in English eyes, was far outside anything
that could even remotely be considered as a crime in this country, it might be
difficult for the Director to be so satisfied.
I therefore do
not agree that what might be characterised as a requirement of double
criminality, such as is found in extradition cases, is a feature of section 3.
It cannot, in my judgment, be a separate requirement that the offences should
be subject to a double criminality rule, because if that were the case this
statute would have to contain the elaborate type of specific provisions, making
clear how such a regime operated, that are to be found in the Extradition Act.
This point, therefore, is only an argument for saying that foreign offences
cannot be considered at all. Faced with the choice between the oddity of not
allowing any foreign convictions to be considered; and the oddity that some
foreign offences are not in the same and exact terms as United Kingdom
offences; I have no doubt that parliament would have sought to avoid the former
rather than the latter problem. Parliament, in my view, was concerned about
criminality as shown by criminal convictions. I do not think that it was
intended to exclude all foreign convictions, even though they fully justified a
finding under section 3(2), just because some foreign offences might be
included but did not have all the characteristics of a United Kingdom offence.
The second complaint therefore fails.
The third
question is whether the Secretary of State was correct in law in characterising
the offences of which Mr Antonelli was convicted in Detroit as offences of
violence. The offence of which he was convicted fell under chapter 750, section
73 of the Criminal Code of Michigan, which is in these terms:
Burning real
property.
Any person
who wilfully or maliciously bums any building or other real property or the
contents thereof other than those specified in the next preceding section of
this chapter, the property himself or another, shall be guilty of a felony
punishable by imprisonment in a state prison of not more than ten years.
Is that an
offence of violence? It was agreed on the basis of an extract from the Oxford
Dictionary that ‘violence’ can be directed at property. The definition
cited was: ‘The exercise of physical force so as to inflict injury on or cause
damage to persons or property’. 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. The
question, at least under the definition that I have referred to, is whether
physical force is directed at the property; and not whether the physical force
is exerted in some way that could colloquially be described as violent. In any
event, I find that distinction to be impossible to draw. It was suggested in
argument that throwing a Molotov cocktail at property in order to ignite it
would be violence, while putting papers on to a fire would not be violence
towards the papers. That is a difficult distinction. It occurs to me that
pushing a human being into a fire would surely be regarded as violence to the
person, and once one accepts that there can be violence to property, I do not
see why pushing property into a fire does not fall within that description.
There is no
clear guidance on this point from any source. One can note that in defining,
for entirely different purposes, a violent offence, section 31(1) of the
Criminal Justice Act 1991 says:
‘violent
offence’ means an offence which leads, or is intended or likely to lead, to a
person’s death or to physical injury to a person, and includes an offence which
is required to be charged as arson (whether or not it would otherwise fall
within this definition).
Offences which
are required to be charged as arson include those in section 1(1) of the
Criminal Damage Act 1971, which in its physical component is very close to the
offence of which Mr Antonelli was convicted in Michigan. I do not rely on that
statement because, as Mr
on the part of the draftsman as to whether arson was or was not included. The
definition in section 31 may however be of some limited help as showing that
the parliamentary draftsman, as well as the dictionary, had no difficulty in
seeing the setting of fire as being an act of violence. Nevertheless, whatever
the implications of section 31 are, my judgment is that the Secretary of State
was correct in saying that the offence of which Mr Antonelli was convicted was
an offence of violence.
I say one
final thing. I have reached that judgment on the basis of looking, and looking
only, at the offence in the sense of the statutory definition to be found in
Chapter 750, section 73 of the Michigan Code. It is not clear to me, from the
construction of section 3, whether that is the correct approach or whether one
should look at the circumstances, so far as the Secretary of State was aware of
them, of the offence itself in the sense of the physical acts of which Mr
Antonelli was convicted. If one looks at ‘the offence’ in those latter terms then
this was an offence of setting fire to an unoccupied dwelling-house. It seems
to me that that physical act would equally be an offence of violence or an act
of violence in the terms that I have indicated. But, as I say, I am content to
decide this matter on the construction of Chapter 750, section 73 of the Code
which obliges me to hold, as I do, that any conduct falling under that part of
the Code, and therefore any conviction under that part of the Code, would be an
offence of violence in the terms of section 3 of the Estate Agents Act of 1979.
For the
reasons that I have given, therefore, this appeal is dismissed.
Appeal
dismissed.
For a further case on this subject see p35
