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Court of Appeal confirms that licensing authorities can consider conduct underlying spent convictions

19.11.2020

Hussain v Waltham Forest LBC [2020] EWCA Civ 1539

The Court of Appeal has upheld the decision of the Upper Tribunal (Lands Chamber) that in deciding whether a person is “fit and proper” for the purpose of being a property licence-holder the First-tier Tribunal (Property Chamber) is entitled to take into account conduct underlying spent convictions.

The applicants argued that s.4(1)(a) Rehabilitation of Offenders Act 1974 made inadmissible both evidence that a person had been convicted of an offence and conduct underlying that conviction: [29]. In so doing they relied on the judgment of the Deputy Judge in R (YA) v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin); [2016] HLR 36: [34]. By their second ground of appeal, the applicants argued that the Upper Tribunal had been wrong to decide that the authority acted in the course of “judicial proceedings” within the meaning of s.4(6) ROA 1974 when determining licence applications, because it was not adjudicating on rights between third parties: [51].

The Court of Appeal agreed with the authority that the statutory wording was clear: [37]. One could not equate “circumstances ancillary to a conviction” with “conduct underlying the conviction”: [40]. While its judgment on the second issue was obiter, the Court of Appeal held that there was no requirement that a body was adjudicating on rights between third parties, and that the authority was acting in the course of judicial proceedings: [49], [53].

By its judgment, the Court of Appeal has made it clear that the Deputy Judge in YA had erred both in treating underlying conduct as identical to ancillary circumstances and in seeking to limit the scope of judicial proceedings as advocated for by the applicants: [48], [53].

The underlying facts are addressed here.

Ashley Underwood QC and Riccardo Calzavara appeared for the successful authority, instructed by Simon Kiely of Sharpe Pritchard LLP, and Kim Travis and David Beach of Waltham Forest LBC.