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

Before setting out the evidence and deciding whether to impose a banning order on the respondent’s application, the FTT decided a preliminary issue: whether evidence of the appellant’s spent convictions was admissible. It set out the parties’ arguments. The respondent (the applicant before the FTT) argued that the MHCLG guidance (paragraph 10 above) is non-statutory; that the convictions were only recently spent, and that they should be admitted pursuant to section 7(3) of the 1974 Act. Section 20 of the 2016 Act demonstrated that Parliament had spent convictions in mind and that if a banning order was not to be made on the basis of spent convictions it would have said so. For the appellant (the respondent in the FTT) it was argued that justice could be done by declining to admit evidence of the spent convictions. It was clear that the government thought it unjust to have orders made on the basis of spent convictions as the MHCLG guidance demonstrates as well as section 20 of the 2016 Act.

Both parties argued that the decision in Hussain v Waltham Forest supported their position.

The FTT said this at its paragraph 25:

“As accepted by both parties the MHLCG Guidance is non-statutory. Whilst the Tribunal have taken it into account, we do not consider it to be a tool of interpretation of the 2016 Act. Given the steps that need to be taken by a Local Authority in proceeding with a Banning Order and the length of time before any matter could come before a Tribunal for determination, it would seem extraordinary that convictions that were spent at the time of a hearing could not be taken into account. We consider that section 20 sits alone and describes a scenario when a conviction is unspent at the time of making a Banning Order but subsequently becomes spent. We do not agree that section 20 implies that the convictions need to be unspent at the time of making the Banning Order. It is accepted that in contrast to Hussain v Waltham Forest, in this case one of the ‘ingredients’ of section 16 of the 2016 Act is that the Respondent, is a person who has been convicted of a Banning Order offence. However, we consider that the crucial part about whether the fact that the Respondent has been convicted can be admitted is dealt with by section 7(3) of the 1974 Act. The Tribunal is a judicial authority and by section 7(3) is satisfied that for justice to be done in our consideration of this application for a Banning Order, we need to know about Mr Hussain’s convictions. Therefore, we admit the evidence relating to the convictions that were spent on 30 September 2022. However, the fact that the convictions are spent is a factor we take into account when making our determination below.”

That is the decision now appealed with permission from the FTT. It determined the preliminary issue; the FTT then went on to consider the arguments for and against making a banning order. At its paragraph 89 it concluded:

“We acknowledge that Banning Orders should be reserved for the most serious offenders but overall we consider that this is such a case and as such we make a Banning Order in respect of the respondent.”

If the appeal against the decision on the preliminary issue were to succeed then the banning order would have to be set aside, because there would then be nothing to satisfy the requirement of section 16(1)(a) of the 2016 Act (paragraph 7 above). But if the appeal from the preliminary issue decision fails – and it does, for the reasons I shall explain – then the banning order stands because there is no separate appeal from the decision to make a banning order once evidence of the convictions had been admitted.

The appellant has permission to appeal, granted by the First-tier Tribunal, on the following ground:

“The First-tier Tribunal erred in law in considering the spent convictions at all and/or where those convictions are being relied upon as the banning order offences to satisfy section 15 of the 2016 Act. Further or in the alternative the First-tier Tribunal acted irrationally in concluding that justice could not be done without considering the spent convictions and/or in relying only upon such spent convictions to satisfy the requirements of section 15 of the 2016 Act.”

Ms Buckley-Thomson, for the appellant, argued that as one ground with distinct limbs, and it is convenient to treat the appeal as being made on two separate grounds, as follows.