UTLC LC-2023-262 - [2023] UKUT 287 (LC)

Essentially Ms Buckley-Thomson offers two arguments in favour of her construction of sections 15(1) and 16(1). The first is the MCHLG guidance. Such guidance has no statutory force (as she accepts) and is not binding upon the FTT (as she also accepts). It is not a tool of construction. The intention of the government is not the same as the will of Parliament expressed in statute.

If anything, the guidance proves the opposite to the construction for which Ms Buckley-Thomson argues; 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”).

The guidance does not provide any support for Ms Buckley-Thomson’s construction of sections 15(1) and 16 (1).

Nor does section 20. I agree with Mr Lane’s observation that section 20 shows that Parliament had spent convictions in mind. It could easily have provided expressly in sections 15(1) and 16(1) that only unspent convictions were relevant but it chose not to do so. And the availability of an application for revocation or variation under section 20 does not generate any unfairness for the reason Mr Lane gave.

Accordingly, Ms Buckley-Thomson’s construction of sections 15(1) and 16(1) is untenable. The words “has been convicted” mean exactly what they say. The 1974 Act has the effect that evidence of spent convictions will be inadmissible, unless the FTT is persuaded, pursuant to section 7(3), that “justice cannot be done” except by admitting that evidence.

The appeal fails on ground 1. Ground 2 is about the decision that the FTT took pursuant to section 7(3).