Housing – Banning order – Spent conviction – Appellant convicted of banning order offences in relation to house in multiple occupation – Defendant local authority applying for banning order under Housing and Planning Act 2016 – Convictions subsequently spent – First-tier Tribunal admitting evidence of spent convictions and making order – Appellant appealing – Whether justice could be done without admitting evidence of spent convictions – Whether FTT’s decision irrational – Appeal dismissed
In October 2021, the appellant was found guilty of seven offences under the Housing Act 2004. One was an offence under section 72 of managing or being in control of an unlicensed house in multiple occupation at 76, Cranmer Road, London E7. The other offences were all breaches of the Management of Houses in Multiple Occupation (England) Regulations 2006. The appellant was fined £10,000 and ordered to pay costs and a victim surcharge. The offences were all committed in 2018 and constituted “banning order offences”. Therefore, the respondent local authority applied for a banning order under the Housing and Planning Act 2016.
The convictions were spent on 30 November 2022. Section 4 of the 2016 Act provided that once a conviction was spent, certain evidence was inadmissible and certain questions could not be asked of the rehabilitated person in any proceedings. Section 15 set out the procedure to be followed by the local housing authority seeking a banning order. Section 16 described the persons against whom the First-tier Tribunal (FTT) might make a banning order.
The FTT decided as a preliminary issue that evidence of the appellant’s spent convictions was admissible. The FTT concluded that the tribunal was a judicial authority and, by section 7(3) of the Rehabilitation of Offenders Act 1974, was satisfied that for justice to be done in considering the application, the FTT needed to know about the spent convictions. Therefore, it admitted evidence of those convictions and went on to impose a three-year banning order. The appellant appealed.
Held: The appeal was dismissed.
(1) In April 2018, the Ministry of Housing, Communities and Local Government (MCHLG) issued non-statutory guidance entitled “Banning Order Offences under the Housing and Planning Act 2016”. The guidance was addressed to local housing authorities but stated that tribunals might also have regard to it. It also stated that a spent conviction should not be taken into account when determining whether to apply for or make a banning order.
The MCHLG guidance had no statutory force and was not binding upon the FTT. It was not a tool of construction. The intention of the government was not the same as the will of parliament expressed in statute. If the statute had provided that only unspent convictions were relevant then either the statement in the guidance that an order “should not be made” on the basis of spent convictions would be unnecessary, or it would have been worded differently (eg, “orders cannot be made”). The guidance did not provide any support for the appellant’s argument that the words “has been convicted of a banning order offence” in sections 15(1) and 16(1) were to be construed as referring only to convictions that were not spent.
(2) The length of the rehabilitation period (ie, the time it took for a conviction to become spent) varied with the sentence imposed. Where the sentence imposed was a fine, then the rehabilitation period was 12 months. That meant that the appellant’s six convictions became spent on 30 September 2022. Therefore, they were not spent when the respondent served notice under section 15, in March 2022, nor when the FTT heard the application for a banning order in May 2022, and issued its decision in February 2023.
(3) The UT rejected the argument that, since section 20 of the 2016 Act indicated that a banning order might be revoked or varied once the conviction on which it was based had become spent, it must have been parliament’s intention that such an order could not be made on the basis of a spent conviction.
Pursuant to section 20, the FTT had power to revoke or vary a banning order if the underlying convictions had become spent since the order was made. That showed that parliament had spent convictions in mind. It could easily have provided expressly in sections 15(1) and 16(1) that only unspent convictions were relevant but chose not to do so. Accordingly, in sections 15(1) and 16(1), the words “has been convicted” meant exactly what they said. The 1974 Act had the effect that evidence of spent convictions would be inadmissible, unless the FTT was persuaded, pursuant to section 7(3), that “justice cannot be done” except by admitting that evidence.
(4) Neither section 20 of the 2016 Act nor the MHCLG guidance rendered the FTT’s decision to admit the evidence of spent convictions irrational. The FTT took into consideration other relevant factors, in particular the fact that the convictions were not spent when the application was made and that they were very recently spent. The FTT would not invariably decide to admit evidence of spent convictions; it would have regard to the circumstances, for example to whether only spent convictions were in issue or a mixture of spent and live convictions, to when the offences were committed, and to when the convictions became spent.
(5) In Hussain v Waltham Forest London Borough Council [2020] EWCA Civ 1539; [2020] PLSCS 210, the Court of Appeal upheld the UT’s decision that section 4(1)(a) of the 2016 Act made evidence of spent convictions inadmissible but did not prevent evidence of the circumstances surrounding those convictions being adduced. It also upheld the UT’s finding that a local housing authority was a “judicial authority” when considering whether to grant an HMO licence.
The FTT would have had in mind the decision in Hussain that evidence of circumstances surrounding past convictions was admissible, which would be of assistance in doing justice in cases where there were both spent and live convictions. Where the FTT did admit evidence of spent convictions it would give very careful consideration (as in this case) to whether a banning order should in fact be made on the basis of such convictions. The statute did not prevent a banning order being made on that basis, but it was unlikely that that would happen except in a very serious case, as the FTT found. There was no irrationality in the FTT’s decision to admit evidence of the spent convictions and its decision to impose a banning order upon the appellant for a period of three years stood.
Leanne Buckley-Thomson (instructed by Addison & Khan Solicitors, of Ilford) appeared for the appellant; Andrew Lane (instructed by OneSource Legal Services) appeared for the respondent.
Eileen O’Grady, barrister
Click to read a transcript of Hussain v Newham London Borough Council
