Housing – House in multiple occupation – Spent conviction – Respondent refusing licences for houses in multiple occupation (HMO) relying on spent convictions – Appellants appealing – Upper Tribunal determining account could be taken of conduct leading up to, but not fact of, conviction – Appellants appealing – Whether tribunal entitled to take into account conduct resulting in criminal conviction, now spent, in determining appeal against refusal of HMO licence – Whether respondent acting in course of judicial proceedings – Appeal dismissed
The appellants owned and managed residential properties which they rented out. Most of the properties were houses in multiple occupation (HMOs) which the respondent local housing authority required to be licensed under part 3 of the Housing Act 2004.
In 2016, the first appellant submitted licence applications and was subsequently prosecuted for offences of knowingly or recklessly supplying false information, to which she pleaded guilty and was fined. Those convictions became spent in May 2018 pursuant to section 4 of the Rehabilitation of Offenders Act 1974.
In November 2018, the respondent refused new licence applications, considering that the first appellant was not a fit and proper person to be a licence holder because of the previous convictions for making false statements in connection with an HMO licence.
In R (on the application of YA) v Hammersmith and Fulham London Borough Council [2016] EWHC 1850 (Admin); [2016] HLR 39, it was held that the 1974 Act required an authority to disregard both the spent convictions and the facts which led to those convictions.
The appellants appealed to the First-tier Tribunal (FTT). Relying on the decision in YA, they contended that the effect of the 1974 Act was that neither the respondent nor the FTT could take into account either the spent convictions or the conduct underlying the offence.
The FTT was bound by YA but the issue was transferred to the Upper Tribunal which ruled in favour of the respondent holding that the effect of the 1974 Act was that the fact of conviction was inadmissible, but not the underlying conduct. Therefore, the respondent was entitled to take into account the previous false statements but not the fact of the conviction: [2019] UKUT 339 (LC). Furthermore, the respondent was acting in the course of “judicial proceedings” within the meaning of section 4(6) of the 1974 Act when determining licence applications. The appellants appealed.
Held: The appeal was dismissed.
(1) The appeal turned on the proper construction of section 4(1)(a) of the 1974 Act; and whether the tribunal was correct in holding that that provision did not render inadmissible evidence as to the conduct constituting an offence in respect of which there was a spent conviction.
In the present case, the tribunal was correct in its conclusion that section 4(1)(a) was, unlike section 4(1)(b), restricted in its scope, and did not include any proscription with regard to evidence of conduct constituting any spent convictions. The issue was one of statutory construction and the starting point was the words that parliament had used. The words were clear. Section 4(1)(a) concerned the admissibility of evidence and was in mandatory terms, rendering inadmissible in relevant proceedings before a judicial authority any evidence “to prove that any [rehabilitated] person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction”. If that included the conduct constituting the offence for which he was convicted, section 4(1)(b) would be otiose and sections 4(1)(a) and 4(1)(b) would be inconsistent. Where evidence was inadmissible, it was unnecessary to have a distinct provision to the effect that questions seeking to elicit such evidence should not be asked; and it could not be open for an individual to have a choice whether or not to give that (inadmissible) evidence in answer to questions.
(2) The wording of section 4(1)(a) and (b) was unambiguous: whilst, in proceedings before a judicial authority, 4(1)(a) provided that evidence of the conviction and what might be termed “the prosecution process” was inadmissible, 4(1)(b) concerned disclosure, extending that protection so that a rehabilitated person could not be asked (nor was he or she required to answer) questions about the conviction or circumstances ancillary thereto including conduct constituting the offence for which he or she had been convicted. Whilst it was open to the parliamentary drafter to express a single concept – here the concept of the conviction of an offence and the conduct constituting that offence taken together – in two distinct ways, section 4(1)(a) and (b) were adjacent provisions within the same subsection, which made it unlikely that that was the intention here. The unlikelihood was compounded by the fact that the drafter thought fit and necessary expressly to define the relevant phrase used in section 4(1)(b) (“… or in circumstances ancillary [to a conviction]”…) in section 4(5). It was clear that the different words used in section 4(1)(a) and (b) were intended to have different effects so far as scope of the provisions was concerned: the admissibility prohibition in the former was deliberately drafted not to include evidence of conduct constituting the relevant offence. Section 4(1)(a) of the 1974 Act did not include any proscription with regard to evidence of conduct constituting any spent convictions.
(3) (Obiter) The issue of judicial authority did not arise on the facts. However, the wide definition of “judicial authority” in section 4(6) of the 1974 Act extended to those persons and bodies who had the power under any enactment to “determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question”; which included an authority empowered by statute to determine the grant, refusal and revocation of licences which gave the holder the right to control and manage property which was subject to the 2004 Act licensing regime. Accordingly, a local housing authority’s consideration and determination of a grant or revocation of a licence under part 2 or 3 of the 2004 Act involved “proceedings before a judicial authority” for the purposes of sections 4 and 7 of 1974 Act; such an authority had the power under section 7(3) to disapply section 4(1) and admit evidence of a spent conviction if it was satisfied that justice could not be done without admitting that evidence.
Justin Bates and Nick Grant (instructed by Anthony Gold Solicitors) appeared for the appellants; Ashley Underwood QC and Riccardo Calzavara (instructed by Waltham Forest London Borough Council) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Hussain and others v Waltham Forest London Borough Council
