The law

The appeal concerned the relationship between the Housing Act 2004 and the Rehabilitation of Offenders Act 1974.

Part 2 of the 2004 Act generally requires houses in multiple occupation (“HMOs”) to be licensed: s.61. It is a criminal offence to control or manage properties subject to the regime without a licence: ss.61(1) and 72(1). Before granting a licence the authority must be satisfied that “the proposed licence holder… is a fit and proper person to be the licence holder” and that “the proposed manager of the house is a fit and proper person to be manager of the house”: ss.64(2), (3)(b)(i) and (3)(d). Section 66 sets out evidence to which the local authority must have regard.

The 1974 Act allows most convictions and all cautions, reprimands and final warnings to be considered ‘spent’ after a certain period: s.1. The rehabilitation period is determined by the sentence or disposal given.

By s.4 the consequence of a conviction becoming spent is that, subject to certain exceptions, the rehabilitated person is treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence. Evidence of such is not admissible “in any proceedings before a judicial authority exercising its jurisdiction or functions” (s.4(1)(a)) and a person is not required to answer “any question relating to his past which cannot be answered without acknowledging or referring to a spent conviction or spent convictions or any circumstances ancillary thereto” (s.4(1)((b)).

A judicial authority may, however, admit evidence of a spent conviction where justice could not otherwise be done: s.7(3). Proceedings before a judicial authority include proceedings before any body or person having power, by virtue of 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: s.4(6).

Background

The first appellant (“Mrs Hussain”) was the mother of the third appellant (“Miss Hussain”) who was the sole director of the second appellant. The appellants and Mrs Hussain’s husband (“Mr Hussain”) owned and managed residential properties.

In 2015, Mrs Hussain had made 21 licence applications in which she falsely stated there were no gas appliances in the relevant properties, and provided certificates only when the Council discovered that not to be true. However, those licences were granted in 2015, and no further action taken.

In May 2016, Mrs Hussain submitted licence applications for seven properties, asserting that they did not have any gas appliances. That was untrue: four of the properties did have such appliances and so required gas safety certificates. Subsequently, gas certificates dated May 2016 were provided for the four properties, but these were discovered to be backdated forgeries.

Mr Hussain had been convicted of four offences under s.1 of the Forgery and Counterfeiting Act 1981 and was sentenced to a fine of £1,000. Those convictions became spent on 29 June 2019. Mrs Hussain had been convicted of four offences of knowingly or recklessly supplying false information and was sentenced to a fine of £40,000. Those convictions became spent on 12 May 2018.

On 23 November 2018, the Council refused all of the 2016 applications, and revoked the other 29 licences held by the appellants.

The appeal

There were two issues: (1) the scope of s.4 of the 1974 Act and (2) the meaning of ‘judicial authority’.

As to the first issue, the Upper Tribunal had held that s.4(1) did not render inadmissible evidence as to the conduct constituting an offence in respect of which there is a spent conviction. The appellants relied on the case of R (YA) v Hammersmith and Fulham LBC [2016] EWHC 1850 (Admin), [2016] HLR 39 and argued that as a matter of construction s.4 applied not only to the fact of the conviction but also to the underlying conduct.

The Court of Appeal disagreed and held that YA had been wrongly decided. The wording of s.4(1)(a) and (b) was unambiguous: whilst, in proceedings before a judicial authority s.4(1)(a) provided that evidence of the conviction and what might be termed “the prosecution process” was inadmissible, s.4(1)(b) concerned disclosure, extending that protection so that a rehabilitated person cannot be asked (nor is he or she required to answer) questions about the conviction or circumstances ancillary thereto including conduct constituting the offence for which he or she has been convicted.

The different words used were intended to have different effects so far as scope of the provisions were concerned: the admissibility prohibition in the former was deliberately drafted not to include evidence of conduct constituting the relevant offence.

As to the second issue, the court determined, albeit orbiter, that ‘judicial authority’ included a local housing authority exercising its licensing functions under Parts 2 and 3 of the 2004 Act. Such an authority therefore had the power under s.7(3) to disapply s.4(1) and admit evidence of a spent conviction if it was satisfied that justice could not be done without admitting that evidence.

Summary by Alice Richardson, barrister, Trinity Chambers.

For the judgment, click here.