Jahangir Hussain v London Borough of Newham

A banning order may be made on the basis of a conviction which has become spent. The words “has been convicted” in sections 15 and 16 of the Housing and Planning Act 2016 are not confined to unspent convictions. However, evidence of a spent conviction is inadmissible unless the tribunal is satisfied under section 7(3) of the Rehabilitation of Offenders Act 1974 that justice cannot be done without admitting it. At that preliminary stage, the tribunal should consider whether it can determine the application without the evidence. The likely effect of any banning order is considered later under section 16(4)(d) of the 2016 Act. Admission will depend on the circumstances and is likely to be exceptional where only spent convictions are relied upon.

The appellant had been convicted of seven housing-related offences committed in 2018, including an offence under section 72 of the Housing Act 2004. The convictions were unspent when the local housing authority served notice and applied for a banning order, but became spent before the First-tier Tribunal heard the application.

The FTT admitted evidence of the convictions under section 7(3) of the Rehabilitation of Offenders Act 1974 and made a three-year banning order. The appellant appealed, arguing that sections 15 and 16 of the Housing and Planning Act 2016 referred only to unspent convictions and, alternatively, that the FTT had acted irrationally. The central issues were the construction of sections 15 and 16 and the exercise of the section 7(3) discretion.

1. Appeal dismissed. The FTT’s three-year banning order remained in force.
2. The statutory language in sections 15(1) and 16(1) of the Housing and Planning Act 2016 is clear. “Has been convicted” includes a conviction which has become spent. Section 20, which permits variation or revocation where convictions become spent after the order is made, does not imply that spent convictions cannot support an order. Nor does non-statutory government guidance assist in construing the Act.
3. Under sections 4(1) and 7(3) of the Rehabilitation of Offenders Act 1974, evidence of a spent conviction is inadmissible unless the tribunal is satisfied that justice cannot be done without admitting it. The FTT was entitled to focus at the preliminary stage on whether it could perform its adjudicative function without the evidence. Its reasoning was not circular: admission merely enabled consideration of the application and did not predetermine the making of a banning order.
4. The effect of a potential banning order on the appellant and his family was a matter for consideration under section 16(4)(d) of the 2016 Act if the evidence were admitted. The FTT was also entitled to consider that the convictions were recently spent and had not been spent when the application was made.
5. The UT agreed with the appellate approach stated in Knapp v Bristol City Council [2023] UKUT 118 (LC): intervention requires an identifiable flaw in the FTT’s reasoning, such as a gap in logic, inconsistency or failure to consider a material factor. No such flaw was established. The guidance indicates that banning orders should be reserved for very serious cases, but does not prevent admission or an order in an appropriately serious case.

• First-tier Tribunal (Property Chamber): admitted evidence of the appellant’s spent convictions under section 7(3) of the Rehabilitation of Offenders Act 1974 and made a three-year banning order.
• Upper Tribunal (Lands Chamber): dismissed the appeal and upheld the FTT’s decision.