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

The second ground is argued in the alternative on the basis that ground 1 fails. In that case, it is argued, the FTT acted irrationally in deciding that justice could not be done without admitting the spent convictions.

Ms Buckley-Thomson referred to Knapp v Bristol City Council [2023] UKUT 118 (LC). That was a challenge to the FTT’s decision to make a banning order; there was no question of spent convictions. The main issue in the appeal was whether the FTT had complied with the requirement in section 16(4)(a) of the 2016 Act (paragraph 8 above) and had given proper consideration to the seriousness of the banning order offence. The Tribunal (the Deputy President, Mr Martin Rodger KC) said this at paragraph 39 about the Tribunal’s role in such an appeal:

“…It is not for this Tribunal to consider whether the offences of which the appellant was convicted were sufficiently serious to justify the making of a banning order – that was the FTT's job. In the absence of some error of law I may only set aside or interfere with the FTT's decision if I am satisfied that there is some identifiable flaw in its reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of its conclusion.”

Although the issue in the present appeal is a different one, I agree that that paragraph describes the Tribunal’s role in the present case.

Ms Buckley-Thomson argued that the FTT’s decision to admit the evidence was irrational for four reasons

I have already addressed and rejected the argument about section 20. As to the FTT’s treatment of the MHCLG guidance, 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 (paragraph 1.7 of the guidance), and it was in that context that the FTT said it gave significant weight to the guidance. There was no inconsistency in the FTT’s approach and no “gap in logic”.

Taking the fourth point next, Mr Lane drew my attention to paragraph 86 of the FTT’s decision in which it considered the impact of a banning order on Mr Hussain and his family. As Ms Buckley-Thomson said, that does not answer her point that the effect of an order upon the appellant should have been considered as part of the decision whether or not to admit the evidence of the convictions pursuant to section 7(3) of the 1974 Act.

One answer to that argument is that it does not appear to have been made to the FTT by counsel for the appellant (not Ms Buckley-Thomson on that occasion). But had it been made, in my judgment the proper response from the FTT would have been that the effect of an order upon the appellant fell to be considered later, under section 16(4)(d), if the evidence of the convictions was admitted. In taking the preliminary decision the FTT rightly focussed not on personal circumstances but on whether it could do its job at all in the absence of the evidence. And its reasoning was not circular (to move on to Ms Buckley-Thomson’s third point). For justice to be done, the FTT had to at least look at the evidence. That did not mean that it was necessarily going to make a banning order; it was simply that consideration of the local housing authority’s application could not get off the ground unless evidence of the spent convictions was admitted.

In my judgment the FTT’s decision to admit the evidence of spent convictions was not irrational. Certainly neither section 20 of the 2016 Act nor the MHCLG guidance renders such a decision irrational. The FTT took into consideration other relevant factors, in particular the fact that the convictions were not spent when the application was made and that they were very recently spent. The FTT will no doubt not invariably decide to admit evidence of spent convictions; it will have regard to the circumstances of the case before it, for example to whether only spent convictions are in issue or a mixture of spent and live convictions, to the time when the offences were committed, and to the time when the convictions became spent. It will have in mind the Court of Appeal’s decision in Hussain v Waltham Forest that evidence of circumstances surrounding past convictions is admissible, which will be of assistance in doing justice in cases where there are both spent and live convictions.

Where the FTT does admit evidence of spent convictions it will then give very careful consideration (as it did in the present case) to whether a banning order should in fact be made on the basis of such convictions. The statute does not prevent a banning order being made on that basis, but it is unlikely that that will happen except in a very serious case, as the FTT held that this was.

There was no irrationality in the FTT’s decision to admit evidence of the spent convictions and the appeal fails on the second ground.