Hussain & Ors v The London Borough of Waltham Forest

Section 4(1)(a) of the Rehabilitation of Offenders Act 1974 bars evidence in proceedings before a judicial authority proving a spent conviction and the associated prosecution process. It does not bar evidence of the conduct constituting the offence. Section 4(1)(b) has a wider disclosure and questioning scope, extending to circumstances ancillary to the conviction, including that conduct. A local housing authority determining licensing under Parts 2 and 3 of the Housing Act 2004 is a judicial authority for section 4(6). It may therefore use section 7(3) where justice cannot be done without admitting otherwise restricted evidence.

The appellants owned and managed residential properties requiring licences under Parts 2 and 3 of the Housing Act 2004. The local housing authority refused applications and revoked existing licences, relying in part on convictions for forgery and false information. Those convictions had become spent under the Rehabilitation of Offenders Act 1974.

The appellants appealed to the First-tier Tribunal and sought to strike out evidence concerning the conduct underlying the spent convictions. The application was transferred to the Upper Tribunal under rule 25 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013. The Upper Tribunal refused the application, holding that the conduct was admissible: [2019] UKUT 339 (LC). The appeal concerned the proper construction of section 4(1)(a), and whether a local housing authority is a judicial authority for section 7(3).

1. The appeal was dismissed. Hickinbottom LJ delivered the judgment, with the Master of the Rolls and Fulford LJ agreeing.
2. Section 4(1)(a) of the Rehabilitation of Offenders Act 1974 is concerned with admissibility of evidence proving that a rehabilitated person committed, was charged with, prosecuted for, convicted of or sentenced for an offence that was the subject of a spent conviction. It prohibits evidence of the conviction and prosecution process. It does not prohibit evidence of the conduct constituting the offence.
3. Section 4(1)(a) and (b) deliberately have different scopes. Paragraph (a) is a mandatory rule about admissibility in proceedings before a judicial authority. Paragraph (b) concerns questions and disclosure, and its reference to circumstances ancillary to a conviction, defined by section 4(5), extends to the conduct constituting the offence. Treating paragraph (a) as also covering conduct would make paragraph (b) substantially otiose or inconsistent.
4. The court rejected the reasoning in R (YA) v London Borough of Hammersmith and Fulham, at [2016] EWHC 1850 (Admin), which had adopted the wider construction. The Upper Tribunal had correctly construed section 4(1)(a). The wider construction would also improperly restrict later civil claims and administrative enforcement based on criminal conduct, in the absence of clear statutory language.
5. Although unnecessary to decide the appeal, the court agreed that a local housing authority determining the grant, refusal or revocation of a licence under Parts 2 or 3 of the Housing Act 2004 is a judicial authority under section 4(6). Its licensing determination affects rights and liabilities. It may therefore use section 7(3) to admit evidence of a spent conviction or ancillary circumstances where justice cannot be done otherwise. These observations were obiter.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the Upper Tribunal's construction of section 4(1)(a) and its conclusion on the scope of section 7(3): [2020] EWCA Civ 1539.
• Upper Tribunal (Lands Chamber): The strike-out application was refused. The tribunal held that evidence of conduct underlying spent convictions was admissible and that a local housing authority was a judicial authority for the relevant purposes: [2019] UKUT 339 (LC).
• First-tier Tribunal (Property Chamber): The appellants' licensing appeals were brought before the tribunal. Their strike-out application was transferred to the Upper Tribunal under rule 25 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.