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

The first ground is that the words “has been convicted of a banning order offence” in sections 15(1) and 16(1) of the 2016 Act are to be construed as referring only to convictions that are not spent.

If that is correct, then a banning order could not be made on the basis of spent convictions alone, with the result that if the landlord’s only convictions were spent then a banning order could not be made, whether or not evidence of spent convictions was admitted pursuant to section 7(3) of the 1974 Act.

Ms Buckley-Thomson drew my attention to Bennion, Bailey and Norbury, Statutory Interpretation, sections 21.1 and 11.1; the 2016 Act is to be read as a whole, with each provision in it not treated as standing alone but interpreted in its context as part of the instrument. With that in mind, she argued that since section 20 indicates that a banning order may be revoked or varied once the conviction on which it is based has become spent, it must have been Parliament’s intention that such an order could not be made on the basis of a spent conviction. Any other construction would be unfair because a landlord whose conviction was live at the time of making the order but became spent during its currency would get a second chance and the opportunity to argue to a fresh panel of the FTT that the order should be revoked, whereas a person whose conviction was already spent at the time the FTT made its decision would get no such second chance; yet the person whose conviction is already spent at that point should be in a better position than the person whose conviction is still live.

Moreover, argued Ms Buckley-Thomson, the MHCLG guidance states that orders “should not be made” on the basis of spent convictions; that makes clear the government’s intention, which in turn provides a window into the intention of Parliament. Banning orders should not be routinely used, they should be reserved for the most serious cases, and consistent with that intention they should not be made on the basis of spent convictions.

Ms Buckley-Thomson contrasted the decision in Hussain v Waltham Forest which was made in the very different context of HMO licences where the relevant material was the facts on which the conviction was based; a conviction or its absence was not a condition precedent to the decision of the local housing authority to give or withhold a licence. By contrast in the present case a conviction is a condition precedent to making of a banning order, and the context of those two references to convictions – in particular section 20, and the MHCLG guidance – make it clear that Parliament intended sections 15(1) and 16(1) to refer only to unspent convictions.

Ms Buckley-Thomson referred to some FTT decisions on this point; but those decisions do not create precedent and in any event are fact-specific, so I am not assisted by considering them.

In response Mr Lane observed that the MHCLG guidance is not binding upon courts and tribunals. As to section 20, there is no unfairness in the different treatment of offenders with spent and unspent convictions. The landlord whose conviction is live at the time the order is made but which then becomes spent may apply to have the order revoked or varied, and the FTT has a discretion whether or not to do so. By contrast, an order can only be made against a landlord with spent convictions if the local housing authority is able to persuade the FTT to admit the evidence of the convictions on the basis of section 7(3) of the 1974 Act; and even if the convictions are admitted, the housing authority then has to persuade the FTT to make an order on the basis of those convictions. And the fact that Parliament made provision about spent convictions in section 20 indicates that Parliament’s attention was drawn to the possibility of convictions becoming spent; it could have stated in sections 15(1) and 16(1) that only unspent convictions were relevant but it chose not to do so.