New guidance on spent convictions and underlying conduct in applying ‘fit and proper person’ test?
The Upper Tribunal (Lands Chamber) has held that local authorities may – consistent with the protections in the Rehabilitation of Offenders Act 1974 and when determining applications for property licences under the Housing Act 2004 – consider evidence of conduct underlying spent convictions, and that they are in principle entitled to consider evidence of the spent convictions themselves if justice requires it. In doing so, the Tribunal has declined to follow the High Court’s controversial decision in R (YA) v Hammersmith and Fulham LBC  EWHC 1850 (Admin);  HLR 39.
This case update will be of interest to all local housing authorities, private landlords, and those who advise them. It will also be of wider interest to licensing authorities and those carrying out licensable activities as it relates to the interaction between the criminal law and the “fit and proper person” test, and in particular the application of the Rehabilitation of Offenders Act 1974 (“ROA 1974”).
This was a case involving the refusal or revocation by Waltham Forest LBC (“the Council”) of licences within the meaning of Parts 2-3 Housing Act 2004 (“HA 2004”) for 36 properties owned or managed by the Applicants. The Council refused and revoked licences in each case because Mrs Hussain and her husband (not a named party to the proceedings) had been convicted for housing-related offences in respect of some of the subject properties.
In particular, Mrs Hussain had pleaded guilty to four charges under s.238 HA 2004 for knowingly or recklessly supplying false information: she had falsely asserted that four properties did not contain gas appliances. Her husband pleaded guilty to four charges under s.1 Forgery and Counterfeiting Act 1981 for his part in fraudulently backdating the gas certificates that were ultimately supplied to the Council. Those convictions became spent on 12 May 2018 and 29 June 2019 respectively.
The Council asserted that those convictions and/or the conduct underlying them was relevant to its statutory duty under ss.64(3), 88(3) HA 2004 to determine whether the Applicants were “fit and proper” people to hold a licence. The Applicants complained that s.4(1) ROA 1974, particularly when read in light of the decision in R (YA) v Hammersmith and Fulham LBC  EWHC 1850 (Admin);  HLR 39, precluded the Council, and on appeal the First-tier Tribunal (Property Chamber) (“FTT”), from considering any evidence regarding anything underlying a conviction that had become spent under the ROA 1974.
The Applicants brought appeals to the FTT against the Council’s determinations. The Council responded by way of statements of case and evidence that included details of the spent convictions and the conduct comprised therein. The Applicants applied to strike out those parts of the statements of case and the evidence. The Council invited the FTT to transfer the strikeout application to the Upper Tribunal (Lands Chamber) for determination, particularly because of a concern that the FTT would consider itself bound by YA, which the Council sought to criticise. The strikeout application was heard and determined by the then-President of the Upper Tribunal, Sir David Holgate, and by the President of the FTT, Judge Siobhan McGrath.
The argument was in two main parts: first the effect of a conviction becoming spent and second the effect of the “safety valve” justice exemption.
In relation to the first, the Applicants submitted that the effect of a conviction becoming spent is that it and (following YA) the conduct underlying it could not thereafter be relied upon: -. The Council submitted that (i) the decision in YA was clearly wrong and there was no basis for the purposive interpretation adopted by the Deputy Judge in that case, (ii) there is no prohibition on the conduct underlying a spent conviction being referred to, and (iii) any decision to the contrary, such as that in YA, leads to absurd consequences such that for example the criminality by a person who is not convicted can, whereas the criminality by a person who is convicted cannot, be relied upon: -.
The Upper Tribunal held that s.4(1) was to be read in three parts: first the part preceding s.4(1)(a), then s.4(1)(a), and then s.4(1)(b) : -. The effect is that (i) a rehabilitated person is to be treated for all purposes in law as not having committed, been charged with, prosecuted for, or convicted of the offence, but (ii) that does not mean that the underlying conduct must be disregarded, and (iii) in proceedings before a judicial authority a person may not be asked questions which would reveal a spent conviction: , , . Put another way, although the conviction becomes “legally irrelevant”, the underlying conduct will not: -. To the extent that the Deputy Judge decided to the contrary in YA, his decision was criticised: -, -, -.
Accordingly, the application to strike out any material relating to the conduct underlying a spent conviction was dismissed: .
In relation to the justice exemption, the Applicants submitted that:
(i) A local authority determining an application for a licence does not amount to “proceedings before a judicial authority” such that the justice exemption could not be relied upon.
(ii) The fact that the hearing before the FTT may involve consideration of “matters of which the authority were unaware” does not mean that it can receive evidence which would have been inadmissible before the Council.
(iii) The threshold for permitting reliance on spent convictions (or conduct underlying them) under the justice exemption is so high that there was no basis on which to conclude that a properly directed FTT should apply it: -.
The Council submitted that:
(i) Its determination and that of the FTT amounted to proceedings before a judicial authority because refusing/revoking a licence affected the “rights, privileges, obligations or liabilities of [a] person”.
(ii) It was therefore permissible for the Council to consider the evidence of the convictions themselves (rather than the underlying conduct).
(iii) Justice could not be done without admitting evidence of the convictions and the underlying conduct: -.
The Upper Tribunal held obiter that the determination by a local authority whether to revoke or refuse a licence amounted to proceedings before a judicial authority: . The effect is that the Council was, in principle, entitled to introduce otherwise inadmissible evidence of spent convictions (that is, as opposed to just the underlying conduct): . It also held that the question whether justice required the convictions to be admitted before the FTT was a matter for it, the burden for justifying reliance being on the Council: , . It provided some guidance as to the application of that test.
Accordingly, it was not appropriate for the Upper Tribunal to determine whether the evidence of the convictions themselves should be struck out; that was a matter for the FTT upon the substantive appeals being remitted there for determination: [179(ii)].
In summary, Councils can rely upon the conduct underlying criminal convictions in considering the fit and proper person tests and, if they consider it is necessary in the interests of justice to do so, can also rely on the convictions themselves.