Nasim Hussain v London Borough of Waltham Forest [2019] UKUT 339 (LC)
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# Nasim Hussain v London Borough of Waltham Forest [2019] UKUT 339 (LC)
Nasim Hussain and others v London Borough of Waltham Forest [2019] UKUT 339 (LC) concerned an application transferred from the First-tier Tribunal (Property Chamber) to strike out parts of the respondent local housing authority’s case on the ground that it impermissibly relied on spent convictions contrary to the Rehabilitation of Offenders Act 1974. The Upper Tribunal (President Sir David Holgate and Judge Siobhan McGrath) dismissed the application and held that the FTT was entitled to receive and consider evidence of conduct underlying spent convictions when determining whether applicants for property licences under Parts 2 and 3 of the Housing Act 2004 were fit and proper persons.
The first applicant, Ms Nasim Hussain, owned or controlled 36 residential properties in the London Borough of Waltham Forest requiring licences under the 2004 Act. In 2015 and 2016 she had submitted licence applications falsely stating that certain properties had no gas appliances. When this was discovered to be untrue, gas safety certificates were provided; some were later found to be forgeries created by her husband Mr Tariq Hussain. On 12 May 2017 Ms Hussain pleaded guilty to four offences under section 238 of the 2004 Act of knowingly or recklessly supplying false information to the authority and was fined £40,000. Her convictions became spent on 12 May 2018. On 29 June 2018 Mr Hussain pleaded guilty to four offences of forgery under the Forgery and Counterfeiting Act 1981 and was fined £1,000. His convictions became spent on 29 June 2019. On 23 November 2018 the respondent refused or revoked licences for the properties, citing the convictions in its decision letters.
The applicants appealed to the FTT and applied to strike out all parts of the respondent’s statement of case, witness evidence and exhibits referring to the spent convictions. They relied principally on R (YA) v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin). The respondent resisted, arguing that YA was wrongly decided and that the 1974 Act did not prohibit reliance on the underlying conduct, as opposed to the convictions themselves. The application was transferred to the Upper Tribunal under rule 25 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 for determination as a preliminary issue.
Section 1(1) of the 1974 Act provides that where an individual is convicted of an offence not excluded from rehabilitation and no further disqualifying sentence is imposed during the rehabilitation period, the individual becomes a rehabilitated person and the conviction is treated as spent after the end of that period. Section 4(1) provides that a rehabilitated person shall be treated for all purposes in law as a person who has not committed, been charged with, prosecuted for, convicted of, or sentenced for the offence which was the subject of the spent conviction. Section 4(1)(a) makes inadmissible in any proceedings before a judicial authority evidence to prove that the person has committed, been charged with, prosecuted for, convicted of, or sentenced for any offence which was the subject of a spent conviction. Section 4(1)(b) provides that in such proceedings a person shall not be asked, and if asked need not answer, any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or any circumstances ancillary thereto. Section 4(5) defines circumstances ancillary to a conviction to include the offence which was the subject of that conviction, the conduct constituting that offence, and any process or proceedings preliminary to that conviction, any sentence imposed, and any compliance with that sentence. Section 4(6) defines proceedings before a judicial authority to include proceedings before any tribunal, body or person having power 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. Section 7(3) provides that if at any stage in any proceedings before a judicial authority the authority is satisfied that justice cannot be done except by admitting or requiring evidence relating to a person’s spent convictions or circumstances ancillary thereto, it may admit or require such evidence notwithstanding section 4(1).
The Tribunal conducted a detailed analysis of the structure and language of section 4. It noted that the protections in section 4(1) preceding subparagraphs (a) and (b) had general effect subject to any legal rule to the contrary, whereas subparagraphs (a) and (b) applied only in proceedings before a judicial authority and were expressed to operate notwithstanding any enactment or rule of law to the contrary. The Tribunal identified five distinct protections afforded by section 4(1) to (3). The first two protections, set out in the opening words of section 4(1) and in section 4(1)(a), had the broad effect of disregarding for all legal purposes or excluding as evidence the fact that a rehabilitated person had been convicted of, charged with, prosecuted for, or sentenced for the offence which was the subject of a spent conviction. The third, fourth and fifth protections, set out in section 4(1)(b), 4(2) and 4(3), dealt with questioning and disclosure obligations and specifically prohibited reference to spent convictions or any circumstances ancillary thereto as defined in section 4(5), including the conduct constituting the offence.
The Tribunal held that the use in the first and second protections of the phrase committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction, and the absence of any reference to conduct constituting that offence, was a deliberate choice by Parliament. The first and second protections applied to disregard the legal consequences under the criminal law of behaviour which amounted to an offence, namely that it involved a criminal offence and resulted in a conviction and sentence. They did not extend to the behaviour or conduct itself. By contrast, Parliament had expressly chosen to include within the third, fourth and fifth protections the phrase circumstances ancillary to a conviction, defined to include conduct constituting the offence. The Tribunal explained that this distinction was necessary because conduct which constitutes a criminal offence may also have legal consequences outside the criminal law, for example giving rise to a civil claim in damages or providing grounds for regulatory or disciplinary action. To construe the first and second protections as covering conduct would produce the absurd consequence that such conduct could be relied upon where no charge was brought or a prosecution failed, but not where a conviction was obtained, and would prevent civil claims or regulatory action being taken in respect of conduct which also happened to result in a spent conviction. Parliament could not have intended such wide and unjust consequences. The purposes of the first and second protections on the one hand, and the third, fourth and fifth protections on the other, were different: the former had the broad effect of treating the conviction, offence, criminal proceedings and sentence as legally irrelevant, whereas the latter prevented a spent conviction being revealed through questioning or a failure to disclose, whether directly or indirectly by reference to the underlying conduct.
The Tribunal considered that the decision in R (YA) v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin) was plainly wrong. The Deputy High Court Judge in YA had held that the whole purpose of section 4 would be undermined if the first part of section 4(1) did not prohibit reliance upon the conduct that constituted the offence, on the basis that anyone hearing a description of such conduct would know that a crime had been committed. The Tribunal rejected this reasoning. First, a description of conduct without reference to a conviction would not necessarily lead anyone to know or properly think that a criminal offence had been committed, since no charge might have been brought, or a trial might have resulted in acquittal, or a civil penalty might have been imposed. Second, it would be absurd and contrary to Parliament’s intention that misconduct or behaviour could be taken into account where no charge was brought or a prosecution failed, but not if a charge was made, the evidence was stronger and a conviction resulted. Third, many types of criminal conduct created by regulatory or licensing legislation were of a technical or strict liability nature and could be described without necessarily importing the commission of a crime. Fourth, and most importantly, the construction in YA overlooked the wide ambit of the first and second protections and the seriously harmful consequences which would follow. If those protections covered conduct, the fact that a conviction was obtained would be sufficient to prevent reliance on that conduct in civil proceedings or administrative processes, preventing an injured party from bringing a claim in damages or a regulator from serving notices to remove or remedy unsafe practices. Parliament could not have intended such absurd consequences to come about. The wording of section 4 did not require the construction adopted in YA to be followed.
The Tribunal rejected the applicants’ reliance on section 7(4) of the 1974 Act, which permits the Secretary of State to make orders excluding or modifying the application of section 4(1). There was no reason to think that Parliament intended by the language of section 4(1) to wipe out coincident civil liability generally and at the same time to restore that liability generally by secondary legislation under section 7(4). That would have been an absurd self-cancelling exercise. Section 7(4) envisaged the disapplication of section 4(1) in specific circumstances, not the restoration of civil liabilities abrogated generally.
The Tribunal turned to the application of section 7(3). It noted that the decision in Reynolds v Phoenix Assurance Co Ltd [1978] 2 Lloyd’s Rep 22, in which Lord Denning MR had stated that a spent conviction is to be wiped out altogether from the knowledge of anyone, did not address the distinction between a conviction and the conduct underlying it and provided no assistance. In Dickinson v Yates (unreported, 27 November 1986) the Court of Appeal had held that section 7(3) was a safety valve to prevent injustice arising from the rigid application of section 4(1) and that the judicial authority must be satisfied that justice cannot be done without admitting the evidence of spent convictions. Sedley J had applied the same test in R v Hastings Magistrates’ Court ex parte McSpirit (1998) 162 J.P. 44 and in Adamson v Waveney District Council [1997] 2 All ER 898. The purpose of section 7(3) was not to confer a dispensing power to be exercised by way of discretion, but to ensure that the prohibition on using protected material remained effective unless the statutory test was satisfied. The judicial authority must identify the issue or issues to which the material prohibited by section 4(1) was said to be relevant and then determine whether justice could not be done without admitting that material. The Court of Appeal’s decision in Thomas v Commissioner of Police of the Metropolis [1997] QB 813 did not depart from the test in Dickinson. Where the issue was the credibility of a rehabilitated person as a witness, a tribunal would need to consider very carefully whether the information in question was relevant to, and to what extent it could properly assist in deciding, that issue. Relevant considerations included the nature of the previous offence including its seriousness, whether it involved dishonesty, whether the person had pleaded not guilty and been disbelieved, and the nature and extent of any prejudice through admitting the material.
The Tribunal held that the burden would be on the respondent to justify reliance on section 7(3) before the FTT, applying the test set out in that provision and explained in Dickinson. The respondent submitted that the convictions and offences of Ms Hussain and her husband, and the sentences passed, were relevant to the key issue of whether the applicants were fit and proper persons to manage or control licensed premises. The conduct underlying the convictions involved the sort of activity which the legislation was designed to avoid in the public interest. The convictions showed that this behaviour was recent. The fine of £40,000 imposed on Ms Hussain showed the seriousness of her offending. The Tribunal considered that these matters were relevant to the justice test in section 7(3) and were properly arguable under that provision. It was unable to say that the test could not reasonably be satisfied. None of the tests in rule 9(3) of the 2013 Rules for striking out were met. Accordingly, the matters falling within the scope of section 4(1) should be left to the FTT to address in response to any application by the respondent under section 7(3). It was for the FTT to decide at what stage it would determine any such application.
The Tribunal also addressed the question whether decisions by a local housing authority under Parts 2 or 3 of the 2004 Act to grant, refuse or revoke applications for a licence involved proceedings before a judicial authority as defined in section 4(6) of the 1974 Act. The applicants contended that they did not. The Tribunal held that the definition in section 4(6) was very broad and embraced not only courts and tribunals but also proceedings before any person or body having power to determine any question affecting the rights, privileges, obligations or liabilities of any person and to receive evidence relevant to such a determination. The FTT carried out a rehearing and determined an appellant’s entitlement to a right or privilege conferred by a licence granted under the legislation. The legal analysis could be no different when a decision of the same nature was taken by the licensing authority from which the appeal was brought. The Tribunal agreed with Sheriff Smith’s reasoning in Francey v Cunninghame District Council [1987] S.C.L.R 6 and the common ground accepted by the parties in Adamson. It disagreed with the restrictive gloss placed on section 4(6) in YA. Section 4(6) was wide enough to include a decision by a regulatory licensing authority to grant, refuse or revoke a permit or licence under Parts 2 or 3 of the 2004 Act, and it followed that such an authority could in an appropriate case rely upon section 7(3).
The Tribunal briefly considered the implications of the Housing and Planning Act 2016, which introduced codes for banning orders and a rogue landlord database. It noted that provisions in the 2016 Act contemplated that spent convictions might continue to be relied upon in certain circumstances, for example where a banning order or database entry made on the basis of a conviction subsisted beyond the rehabilitation period. The Tribunal did not consider that the interaction between the 2016 Act and the 1974 Act assisted in resolving the points of construction before it. Section 7(1)(d) of the 1974 Act preserved the operation of any enactment by virtue of which a person is subject in consequence of a conviction to a disqualification or penalty extending beyond the rehabilitation period. The Tribunal also noted the decision in NT1 v Google llc [2019] QB 344, in which Warby J had treated the right to rehabilitation under section 4 of the 1974 Act as an aspect of privacy law and had held that the exceptions to section 4(1) could not necessarily be treated as exhaust
R(YA) v Hammersmith and Fulham LBC [2016] EWHC 1850
Adamson v Waveney District Council [1997] 2 All ER 898
Thomas v Commissioner of Police of the Metropolis [1997] QB 813
R (Cart) v Upper Tribunal [2012] 1 AC 663
Justice v RR [2010] UKUT 454
Gilchrist v Revenue and Customs Commissioners [2015] Ch 183
Kingsbridge Pension Fund Trust v Downs [2017] UKUT 237
Robertson v Webb [2018] UKUT 235
McCool v Rushcliffe Borough Council [1998] 3 All ER 889
R v Cr own Court at Warrington ex p. RBNB [2002] 1 WLR 1954
Reynolds v Phoenix Assurance Co. Ltd [1978] 2 Lloyds Rep. 22
Spath Holme Ltd [2001] 2 WLR 15, [2000] UKHL 61, [2001] 2 AC 349
Francey v Cunninghame District Council [1987] S.C.L.R 6
Clifford v Clifford [1961] 1 WLR 1274
Claimant v First Defendant [2012] EWHC 3214
Leeds City Council v Hussain [2003] RTR 13