penalty fine

The London Borough of Newham was entitled to take a landlord’s spent convictions into account when imposing a banning order, the Upper Tribunal (Lands Chamber) has decided.

Hearing an appeal by the landlord from the First-Tier Tribunal (FTT).(Property Chamber), Upper Tribunal Judge Elizabeth Cooke ruled that the FTT could admit evidence of spent convictions and that its decision to do this was not irrational.

The FTT imposed a banning order against the appellant under the Housing and Planning Act 2016, to prevent him from letting or managing tenanted property for three years.

This followed his conviction in October 2021 at the East London Magistrates’ Court for seven offences committed in 2018 under the Housing Act 2004, including being in control of a house in multiple occupation that was not licensed, and for allowing the presence in it of fire hazards and black mould spores. He was fined £10,000 and ordered to pay costs and a victim surcharge.

The Upper Tribunal heard that in April 2018 the Ministry of Housing, Communities and Local Government issued non-statutory guidance entitled Banning Order Offences under the Housing and Planning Act 2016, which stated: “A spent conviction should not be taken into account when determining whether to apply for or make a banning order.”

It also heard that in a 2020 ruling the Court of Appeal said evidence of spent convictions was inadmissible but evidence of the circumstances surrounding those convictions could be adduced and that a local housing authority is a ‘judicial authority’ when considering whether to grant an HMO licence.

Judge Cooke said the landlord’s convictions became spent on 30 September 2022 and so were not spent when Newham applied to the FTT for a banning order in May 2022, but were spent by the time the FTT heard the application on 30 November 2022 and issued its decision on 15 February 2023.

Judge Cooke said the non-statutory guidance was not binding upon the FTT and “the intention of the government is not the same as the will of Parliament expressed in statute”.

She explained: “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 (for example, as ‘orders cannot be made’).”

Parliament could have said that only unspent convictions were relevant to banning orders “but it chose not to do so”, the judge said.

The Rehabilitation of Offenders Act 1974 meant evidence of spent convictions will be inadmissible, unless the FTT was persuaded “justice cannot be done” except by admitting that evidence, Judge Cooke said.

She said: “I fail to see any irrationality. The FTT was entitled to take it into account, and was entitled nevertheless to admit the evidence of spent convictions and therefore to open up the possibility of a banning order being made on the basis of such convictions despite what the guidance said.

“It was not bound by the government’s intention but by the law. The FTT also accepted and gave effect to the view expressed in the guidance that banning orders should be used for the most serious offences, and it was in that context that the FTT said it gave significant weight to the guidance.”

Judge Cooke concluded that where the FTT admits evidence of spent convictions it will then give very careful consideration to whether a banning order should be made, as it is unlikely that will happen except in a very serious case, as the FTT held that this was.

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