(1) NASIM HUSSAIN (2) FHCO LIMITED (3) FARINA HUSSAIN v LONDON BOROUGH OF WALTHAM FOREST [2019] UKUT 339 (LC)
IN THE MATTER OF AN APPLICATION TRANSFERRED FROM
[2019] UKUT 339 (LC)Case No HA/32/2019Venue THE FIRST TIER TRIBUNAL (PROPERTY CHAMBER)
Between
(1) NASIM HUSSAIN (2) FHCO LIMITED (3) FARINA HUSSAINApplicantsLONDON BOROUGH OF WALTHAM FORESTRespondentFor the Applicants: Mr Justin Bates and Mr Nicholas Grant of counsel, instructed by Messrs Anthony GoldFor the Respondent: Mr James Findlay QC and Mr Riccardo Calzavara of counsel, instructed by Kim Travis of Waltham Forest London Borough CouncilR. v Secretary of State for the Environment, Transport and the Regions ex parte Spath Holme Ltd [2001] 2 AC 349
[39]“Furthermore, section 4(1) when outlining the relevant circumstances refers to a person as being treated as someone 'who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction.' Section 4(1)(a) also refers to the prohibition relating to a person who has 'committed or been charged with or prosecuted for or convicted of or sentenced for any offence…'. In contrast section 4(1)(b) refers to 'spent conviction or spent convictions' and includes the phrase 'or any circumstances ancillary thereto.' It is necessary in section 4(1)(b) to refer to 'any circumstances ancillary thereto' because the drafting of the section only uses the word 'conviction' and this makes it clear that the prohibition is wider than just the conviction itself. This is not necessary in the rest of section 4 as the drafting is wider and includes circumstances that are ancillary to the conviction, such as committing the offence and sentencing. Section 4(5) supports and reinforces the requirements of section 4(1). ” 128. It is only in this part of his judgment that the judge addressed the point that the expression “any circumstances ancillary to a conviction” (as defined in s.4(5)) appears in s.4(1)(b), (2) and (3) but not in the preceding parts of s.4(1). He suggested that it was necessary for this expression to be incorporated and then defined in a separate sub-section (s.4(5)) because in ss. 4(1)(b), (2) and (3) the only other subject matter identified by Parliament was a “spent conviction”. The judge pointed out that s.4(1) down to the end of sub-para.(a) refers to the commission of, charging with, prosecuting or sentencing for an offence which is a spent conviction. He decided that the phrase “circumstances ancillary to a conviction” was introduced in subsequent parts of s.4 to include elements which would not otherwise have been covered. We cannot accept this explanation of why Parliament used the term of art “circumstances ancillary to a conviction” for three main reasons. 129. First, it treats the use of this term and s.4(5) as if it were nothing more than a word-saving device for making the whole of ss. 4(1) to (3) apply to the same subject matter. Yet, if Parliament’s object had been to make the first part of s.4(1) down to the end of sub-para. (a) apply to the same matters as s.4(1)(b), (2) and (3), there is no rational reason why it did not simply make s.4(5) apply throughout all of those provisions. The explanation given in YA imputes to Parliament an unnecessarily convoluted technique for the drafting of legislation and is all the more implausible given the clear dichotomy between sub-paras. (a) and (b) of s.4(1). Instead, s. 4(5) has a dual function. First, it provides a word-saving device solely for those provisions to which it is expressly applied (i.e. ss. 4(1)(b), 4(2) and 4(3)). Second, it repeats elements which are common to the first and second protections, but it adds the additional feature “conduct constituting that offence …”. 130. Second, the judgment in YA at [39] glosses over that part of s.4(5) which was important to the authority’s argument in that case (and the Respondent’s in this). Section 4(5) expressly refers to “the conduct constituting that offence”, language which is absent from the beginning of s.4(1) down to the end of sub-para. (a). This first part of section 4(1) requires the fact that the rehabilitated person was convicted of a breach of the criminal law (and the related criminal process) to be disregarded or treated as inadmissible evidence. But it does not go on to treat the conduct involved in that offence as something which never happened, or about which evidence may not be given. That is why it is so significant that sub-para.(b) of s.4(5) focuses by contrast on “the conduct” in question. 131. Third, the explanation in YA treats all parts of s.4(1)(2) and (3) as applying to the same subject matter, ignoring the differences between the functions of the first and second protections on the one hand, and the third, fourth and fifth protections on the other (see analysis at [101] to [107] above). In our judgment, and with great respect, the construction adopted in YA does not accord with either the language used by Parliament in s. 4 or the purposes of the legislation. 132. Mr Bates submitted that all three parts of ss.4(1) should be read as a whole and “not disjunctively”. By “not disjunctively” he meant, in particular, that those three parts should all be treated as protecting “conduct constituting an offence”. In one sense this submission goes too far. Mr Bates says that by virtue of the first protection , “conduct” would have to be ignored for all purposes in law, including the appeal before the FTT (and moreover should have been ignored by the Respondent in reaching its decisions the subject of the appeal). Evidence of conduct would be inadmissible before the FTT and could not be the subject of questioning before that tribunal. On his argument the Applicants would not need to rely upon the second or third protections; they would be otiose. 133. A second and more fundamental problem with his submission is that it conflicts with the structure of s. 4(1) explained in [84] to [86] above. In proceedings before any judicial authority, including the FTT (and, as we explain below, the determination of licensing applications by a local housing authority), the second and third protections are necessary (and not otiose) because they override legal rules to the contrary, whereas the first protection does not. 134. Lastly in YA the judge said this at [40]: -[40]“ It may be possible to identify in a person who has been convicted of a series of criminal offences 'bad' behaviours that do not form part of the conduct constituting the offences. If so, it would be permissible to disclose those behaviours. For example, if a person is generally violent then he/she might be described as a violent person notwithstanding any convictions. However, if he/she had committed one violent offence then, if it was spent, it would not be permissible to disclose it. In this case, there was no substantive evidence of 'bad' behaviour other than the evidence provided by way of the convictions document. ” We do not follow how the possibility of relying upon evidence of bad character which on any view falls outside the controls in the 1974 Act assists in resolving the issue of whether conduct underlying a conviction falls within the first and second protections. 135. For the reasons we have given, on a plain reading of the language used in the 1974 Act, we do not consider that the construction of s.4(1) adopted by the court in YA , and advanced by the Applicants here, is correct or that it accords with the purposes of the legislation. However, on a proper construction of the 1974 Act the decision-maker is entitled to receive, and to take into account, evidence or information dealing with relevant conduct of a rehabilitated person, including conduct which has been treated under the criminal law as an offence and resulted in a conviction which is now spent (see [111] above). Accordingly, the application to strike out any of the Respondent’s material of that kind must fail. Section 4(6) of the 1974 Act – “proceedings before a judicial authority” 136. There is no dispute that the appeal before the FTT are “proceedings before a judicial authority” for the purposes of ss. 4(1)(a) and (b) and 7. The Applicants contend that the Respondent’s decisions which they have appealed did not involve proceedings of that kind whereas the Respondent says they do. As we have said, given that the FTT is not restricted to the material before the Respondent when it took those decisions, this issue has no legal or practical consequence for the determination of the appeal before the FTT or the current application before us. 137. The only practical effect of this issue which has been identified to us, is that if the process leading up to a local housing authority’s decision to refuse or revoke a licence are “proceedings before a judicial authority”, then in an appropriate case that authority may rely upon s.7(3) of the 2004 Act to “admit or require” evidence to be given of a rehabilitated person’s spent convictions, offence, and punishment, notwithstanding s.4(1). Because this is a point of general importance to local housing authorities and those affected by the exercise of their licensing powers, and because the matter has been raised before us, we will briefly give our opinion on it. 138. Section 4(6) provides: - “For the purposes of this section and section 7 below “proceedings before a judicial authority” includes, in addition to proceedings before any of the ordinary courts of law, proceedings before any tribunal, body or person having power—(a) by virtue of any enactment, law, custom or practice;(b) under the rules governing any association, institution, profession, occupation or employment; or(c) under any provision of an agreement providing for arbitration with respect to questions arising thereunder; to determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question.” 139. The ambit of this definition is very broad. It embraces not only courts and tribunals, but also proceedings before any person or body having power, whether by law, custom or practice, or under the rules of any association, profession, institution, occupation or employment, to determine any question affecting the rights, privileges, obligations or liabilities of any person and also to receive evidence relevant to such a determination. Plainly this definition would cover, for example, disciplinary proceedings before a professional body or misconduct appeals conducted by employers or a sports association. 140. In the present case, it has not been suggested that a local housing authority exercising its licensing functions under Parts 2 and 3 of the 2004 Act lacks “power to receive evidence”. Instead, the dispute focused on the nature of its determination. However, as the Respondent points out, there is an internal inconsistency in the Applicants’ position. The FTT carries out a rehearing and then makes a determination in relation to the “rights” sought by an applicant. The FTT may decide an appeal by confirming, reversing, or varying the decision of the local housing authority (para. 34(3) of sched. 5). In an appeal against a refusal to grant a licence, the FTT may direct the authority to grant a licence to the “applicant for the licence” on such terms as the tribunal may direct (para. 34(4) of sched. 5). The FTT determines an appellant’s entitlement to a right or privilege conferred by a licence granted under the legislation (or the removal of that right in the event of revocation). It is impossible to see how the legal analysis can be any different when a decision of the same nature is previously taken by the licensing authority from which the appeal is brought. 141. There appears to be little case law on the interpretation of s.4(6). In Francey v Cunninghame District Council [1987] S.C.L.R 6, the Appellant’s application for a taxi driver’s licence was refused by the District Council. Sheriff Smith held that the application process leading up to the determination by the Council constituted “proceedings before a judicial authority”. He stated that the definition in s.4(6) was so broad that it included many tribunals, bodies or persons who have to make decisions on unsworn statements and written submissions. “Evidence” in s.4(6) does not refer simply to material that would be accepted as evidence in a court of law, but includes all statements of fact or opinion intended to form part of the material for the authority’s determination. Mr Bates made no submission to the contrary. We agree with the judge’s reasoning. 142. In Adamson v Waveney District Council [1997] 2 All ER 898 it was common ground that the determination by a local authority of an application for a hackney carriage licence, including the statutory question of whether the applicant was a fit and proper person to hold such a licence, was a proceeding before a judicial authority within s.4(6) (p.900f-g). Silber J proceeded on that basis (p.904e-g). We agree with the view he took. 143. Mr Bates relied on the decision in YA at [44] primarily for the judge’s reasoning that the “rights” referred to in s.4(6) means “rights as between third parties or rights conferring status in relation to third parties”. On that basis he held that s. 4(6) could not apply to the determination by an authority of any rights which the individual may have against that authority. With respect, we disagree. We do not think that it is appropriate to put this restrictive gloss on the plain language used by Parliament in the statute. Section 4(6) is wide enough to include a decision by a regulatory licensing authority (such as a local housing authority) to grant, or to refuse to grant, or to revoke, a permit or a licence. In the present case the consequence of a decision to grant, refuse or revoke a licence under Parts 2 or 3 of the 2004 Act is that the Applicants either do, or do not, have the right to control or manage property subject to the licensing regime; they would be liable to prosecution if they so acted without a licence (ss.61(1), 72(1), 85(1) and 95(1) of the 2004 Act). 144. There is no justification for confining the determination of rights in s.4(6) to rights as between parties other than the decision-maker. The explicit references in that provision to the determination of rights and obligations under the rules governing any institution, association or profession make that plain beyond any doubt. It may be that the decision in YA that the authority’s determination in that case fell outside s.4(6) was correct on other grounds, but we refrain from expressing any conclusions on that aspect. 145. For these reasons we conclude that decisions by a local housing authority under Parts 2 or 3 of the 2004 Act to grant or refuse applications for a licence, or to revoke such a licence, involve “proceedings before a judicial authority” as defined in s.4(6) of the 1974 Act. Section 7(3) of the 1974 Act 146. In proceedings before a judicial authority, that authority may be entitled to rely upon s. 7(3) to override any one or more of the protections in section 4(1), in so far as it may be necessary to do justice in the case. Section 7(3) provides: - “If at any stage in any proceedings before a judicial authority in England and Wales (not being proceedings to which, by virtue of any of paragraphs (a) to (e) of subsection (2) above or of any order for the time being in force under subsection (4) below, section 4(1) above has no application, or proceedings to which section 8 below applies) the authority is satisfied, in the light of any considerations which appear to it to be relevant (including any evidence which has been or may thereafter be put before it), that justice cannot be done in the case except by admitting or requiring evidence relating to a person’s spent convictions or to circumstances ancillary thereto, that authority may admit or, as the case may be, require the evidence in question notwithstanding the provisions of subsection (1) of section 4 above, and may determine any issue to which the evidence relates in disregard, so far as necessary, of those provisions.” 147. We have already concluded that the 1974 Act does not prevent the Respondent from leading evidence before the FTT of the conduct which gave rise to the spent convictions. But the Respondent says that it intends to apply to the FTT under s. 7(3) to be allowed to lead evidence on the convictions, offences or breaches of the criminal law to which they relate and the sentences passed (notwithstanding s. 4(1)(a)), and to ask questions about those matters and the underlying conduct (notwithstanding s. 4(1)(b)). 148. Section 7(3) makes it plain that the decision on whether to disapply any of the protections in s.4(1) is a matter for the judicial authority. In Reynolds the Court of Appeal, dealing with an appeal while the trial at first instance was still in progress, held that they should not determine whether material should be admitted under s.7(3) because that was a matter for the trial judge who had yet to pronounce on the question (pp. 25-26). In the present case a ruling on the application of s.7(3) would be a matter for the FTT to determine. If the Respondent should make any application relying upon s. 7(3) it would bear the burden of showing that the test in that provision is satisfied (see Lord Denning MR in Reynolds at p.24) 149. In the application before this Tribunal we are not exercising an appellate function. Instead, the determination of the application in the FTT to strike out parts of the Respondent’s case has been transferred to this Tribunal, leaving all other matters, including any determination under s.7(3) of the 1974 Act, to be dealt with by the FTT. The issue for us is whether the proposed strike out is justified under Rule 7 of the 2013 Rules, because there is no reasonable prospect of the Respondent being successful in relying upon s.7(3), or because reliance upon s.7(3) in the circumstances of this case would be frivolous, vexatious or otherwise an abuse of the FTT’s process. In essence, Mr Bates is contending that the test which the Respondent would need to satisfy under s.7(3) could not reasonably be met. We must bear in mind that this provision would have to be applied by the FTT as the judicial authority having regard to any considerations which appear to it to be relevant, “including any evidence which has been or may thereafter be put before it”. 150. In these circumstances, much of the argument before us focused on the correct legal approach which should be taken by the FTT if asked by the Respondent to apply s.7(3). We approach this subject cautiously, given that the evidence before the FTT is not yet complete and that tribunal has not yet given a ruling on the application of s. 7(3). What we say must be read in that context and on the basis of the material now before us. 151. A critical point for a judicial authority applying s.7(3) is to identify the issue (or issues) to which the material or questioning prohibited by s. 4(1) is said to be relevant. Plainly, material or questioning which is irrelevant would be disallowed by a tribunal in any event. But the case law makes it plain that under s. 7(3) the identification of the relevant issues is critical for the application of the test “that justice cannot be done in the case except by admitting or requiring” evidence of the material in question (“the justice test”). 152. In some of the authorities the material in question was said to be relevant to an issue which the judicial authority had to determine. In other cases, the prohibited material was irrelevant in that sense, but simply went to the credibility of a rehabilitated person as a witness in the proceedings. This distinction has influenced some of the statements made in the decisions and needs to be borne in mind. 153. In Dickinson v Yates (Court of Appeal, unreported, 27 November 1986) the claimant had claimed damages against the police for assault, wrongful arrest, false imprisonment and malicious prosecution arising from an arrest for a suspected drink-driving offence. He was acquitted of charges of assaulting a police officer in the execution of his duty and failing to give a sample under the Road Traffic Act 1972. The police defended the action on the basis that the arrest had been lawful, and any injuries sustained by the claimant had only occurred because of the way in which he had resisted that arrest. In the civil action the defendants sought to rely upon the claimant’s previous convictions, which included offences under ss. 20 and 47 of the Offences Against the Person Act 1861 and were spent. It appears from the judgment of Nourse LJ and his reliance upon Clifford v Clifford [1961] 1 WLR 1274 at 1276, that the only issue to which the convictions were relevant was the claimant’s credibility as a witness in the civil proceedings. There was no suggestion of the convictions being relied upon to establish a propensity to be violent. The trial judge refused to allow any of the convictions to be admitted. The Court of Appeal decided that he had applied the correct test and saw no basis for interfering with his decision. 154. Purchas LJ described s.7(3) as a “safety valve” to prevent an injustice occurring through the application of section 4(1). He stated that the correct approach must be “to see if there is a danger of an injustice being committed as a result of the rigid application of section 4 and unless he [the judicial authority] is satisfied that that is the case, in other words that justice cannot be done without avoiding the provisions of section 4, then the provisions of section 4 ought to stand unaffected by the provisions of section 7” (i.e. s. 7(3)). Purchas LJ also stated that in reaching a conclusion on that matter, regard may be had to the penalty imposed for a spent conviction and the gravity of the offence. 155. On the main point, Nourse LJ agreed that for s.7(3) to apply the court “must be satisfied that justice cannot be done except by letting in evidence of the spent conviction”. We have not seen anything in subsequent authorities to justify a departure from that test, founded upon the clear language of the legislation. 156. Sedley J applied that same test in R v Hastings Magistrates’ Court ex parte McSpirit (1998) 162 J.P. 44 at 47E and 48C when dealing with an undefended judicial review of a refusal by magistrates to grant a liquor licence, after having taken spent convictions into account on the issue of whether the applicant was a fit and proper person. The judge said at p.48A that there would be little point in s.4(1) of the 1974 Act if it were to be open to the justices in such a case simply to say that it was important for them to be aware of anything that may be known to the detriment of the applicant for a licence. The purpose of s.7(3) was not to confer a dispensing power to be exercised by way of a discretion, but to ensure that the prohibition on using material protected by s. 4(1) remains effective, unless the test laid down in Dickinson is satisfied. 157. Sedley J applied the same approach in Adamson v Waveney District Council [1997] 2 All ER 898, where the magistrates had admitted the applicant’s spent convictions when deciding whether he was a fit and proper person to hold a hackney carriage licence. He held that they had erred in law because they had purported to admit a list of spent convictions under s.7(3) without determining at that stage whether they were relevant to any issue they had to determine. Plainly, without deciding whether a particular conviction was relevant and, if so, in what respect(s), the magistrates had not been able to apply the “justice test” laid down in Dickinson (pp. 901-903). The judicial authority does not have a discretion in the matter. Instead, it has to reach a judgment in accordance with the terms of s.7(3) (p.903). We agree with those statements. We also note that Sedley J dismissed the taxi driver’s appeal because even if the magistrates had applied the correct test, the convictions would undoubtedly have been admitted under s.7(3), given their nature, and the licence would still have been refused (p.905). 158. Both McSpirit and Adamson were cases where the disputed material was said to go to a substantive issue which had to be determined by the “judicial authority”. But the decision of the Court of Appeal in Thomas v Commissioner of Police of the Metropolis [1997] QB 813, like Dickinson , was instead concerned with the admissibility of spent convictions on the credibility of a rehabilitated person as a witness. 159. The claimant in Thomas was arrested for threatening behaviour towards two police officers. They said that they had needed to use some force on Mr Thomas when arresting him because he struggled violently. Mr Thomas was acquitted of using threatening behaviour. He then brought an action in damages against the police for assault, false imprisonment and malicious prosecution. The trial judge ruled that two previous convictions of Mr Thomas were admissible solely on his credibility as a witness, one for unlawful wounding and the other for criminal damage. We note that he had pleaded guilty, they were not offences of dishonesty, and they did not suggest any record of lying on oath ([1997] QB 821F, 823D-F). The trial judge directed the jury that the convictions were only relevant to the issue of Mr Thomas’s credit and could not be used to show any propensity on his part to be violent. 160. In the Court of Appeal the claimant argued that the convictions should not have been admitted and applied for a new trial. All members of the Court agreed that the appeal should be dismissed. However, as Warren J pointed out in Claimant v First Defendant [2012] EWHC 3214 (Ch) , it is not possible to find in the three separate judgments “one voice” on the application of s.7(3) ([22] – [33]). But for present purposes, the important point is that Dickinson was referred to in Thomas , and there is nothing to suggest that any member of the Court intended to depart from the test stated in the earlier decision. 161. In particular, we reject the Respondent’s suggestion that the judgment of Evans LJ allows a more liberal approach to the interpretation of s. 7(3) than that laid down in Dickinson. It is plain that he expressly agreed with the decision of Nourse LJ that s.7(3) imposes a statutory test, “the justice test”, in addition to that of “materiality” or “relevance” ([1997] QB 830B). He accepted that the 1974 Act had imposed restrictions on the ability under the common law (as explained in Clifford v Clifford ) to rely upon previous convictions to challenge the credibility of a person’s evidence (p.829). At p. 830D-E Evans LJ stated that s.7(3) conferred a broad discretion, but by that he was simply referring to the fact that the judicial authority may take into account all relevant considerations. Although he added that in civil proceedings it is necessary to take into account the interests of the parties and to ensure a fair trial as between them, that cannot be taken as detracting from his immediately preceding statement of the essential legal test, that evidence within the ambit of s.4(1) must be excluded unless the judicial authority is satisfied that justice cannot be done except by admitting it. 162. The real difference between the judgments in Thomas lies in the way in which the members of the Court applied the justice test to the admissibility of spent convictions going solely to the credibility of a witness . That difference is accurately reflected in the headnote. Given the way in which the submissions on the application to strike out in the present case have been made, this is not an issue which we need to resolve, and we will therefore only make some observations on Thomas in order to assist the parties and the FTT. 163. The outcome of the appeal in Thomas was very much affected by the jury’s conclusions on the issues they had to determine. They decided some points in favour of the defence, but others in favour of the claimant where his credibility had been “all important” ([1997] QB 826E-G; 834D; 835B). This was a point upon which the Court of Appeal was unanimous. It undermined the claimant’s complaint that the decision to allow the convictions to go in had made a material difference to the outcome of the trial. 164. Evans LJ rejected Mr Thomas’s submission that the convictions could only have been admitted under s. 7(3) if probative on an issue of propensity. He held that where convictions are relevant to credit, it must be in the interests of justice to require such evidence to be admitted, unless they are so trivial that no decision-maker could reasonably rely upon them. If convictions are admitted it is a matter for the decision-maker to decide how much weight to give to them on that particular issue (p. 832 B-F). Some degree of relevance to credit is a pre-requisite for admissibility, but it is also necessary to weigh the nature and degree of that relevance against any unfair prejudice to the witness on the issue of whether his evidence should be accepted (p. 833). Evans LJ decided that the trial judge had applied the correct test and his “judgment” on the matter could not be said to have been obviously wrong (p. 833A-B). 165. Sir Richard Scott V-C held that Mr Thomas’s spent convictions could not have had any probative value in relation to any issue in the claim. The mere fact that the claimant had appeared in court to be respectable (a matter consistent it might be said with his status as a rehabilitated person) was insufficient to render these particular convictions relevant to his credibility, nor did they shed any relevant light on his character or the likelihood of his giving truthful evidence (pp. 823-825). 166. Saville LJ pointed out that the claimant’s argument was self-contradictory ([1997]) QB 834-835). Whereas the claimant had submitted that the convictions should not have been admitted under s.7(3) because they could not have made a material difference to the assessment of his credibility, he had applied for a new trial because there was a real prospect that the convictions had made a material difference to the jury’s consideration of the case. Saville LJ said that those two submissions could only be reconciled if the convictions could not have made a material difference, but the jury might wrongly have supposed that they did. That was an impossible submission in view of the directions given by the judge to the jury and the discriminating verdicts they had returned. Saville LJ stated that if the convictions could have made a material difference on credibility then, applying s. 7(3), they should not have been excluded. He added that if he had been sitting as the trial judge he might have decided to exclude them on the grounds that they appeared to have little or no relevance to credibility. However, he was not prepared to hold that the trial judge’s assessment had been unreasonable. 167. The differing views of the three judges on the materiality of Mr Thomas’s convictions show that where the issue arising under s.7(3) is the credibility of a rehabilitated person as a witness, a tribunal will need to consider very carefully whether the information in question is relevant to, and to what extent it could properly assist in deciding, that issue, so as to be able to determine whether justice could not be done without allowing that information to be used on that particular aspect . Relevant considerations to be taken into account include the evidential issues in the case on which a person’s credibility is relevant, the availability of other evidence on those issues, the nature of his previous offence including its seriousness or triviality (see e.g. [1997] QB at 832G), whether the offence involved dishonesty, whether the person pleaded not guilty or gave evidence at trial and was disbelieved, and the nature and extent of any prejudice to that person through admitting that material [1997] QB at 833). 168. Turning to the present case, the Respondent submits (para. 70 of its skeleton) that the convictions and offences of the First Applicant and her husband (and the sentences passed) are relevant to a key issue in the appeals before the FTT. They are said to meet the test in s.7(3) because they relate directly to the suitability of the Applicants to manage or control premises which are licensable under Parts 2 or 3 of the 2004 Act, “the fit and proper person test”. The conduct underlying the convictions involves the sort of activity which the legislation is designed to avoid in the public interest. The convictions show that this behaviour was recent. The fine of £40,000 imposed on the First Applicant shows how serious her offending was and her husband’s conviction arises from the same factual matrix. 169. It is unnecessary for us to say whether we accept these points. That is not our function in dealing with the application before us. Rather we have reached the clear conclusion that these matters are relevant to the justice test in s.7(3) as explained in Dickinson and are properly arguable under that provision. We are unable to say that that test could not reasonably be satisfied. None of the tests in rule 9(3) are met. Accordingly, at this stage we should not strike out the matters identified in the Applicants’ application which go beyond “conduct”. They should be left to the FTT to address in response to any application by the Respondent under s.7(3). 170. In summary, we accept that before the FTT the burden would be on the Respondent to justify reliance upon s.7(3), applying the test set out in that provision and as explained in Dickinson . The Respondent would have to define the relevance of the material upon which it seeks to rely in order to satisfy that test, supplying sufficient information for that purpose. Plainly, the Applicants should have a proper opportunity to respond to any such application. Given the issues currently before us, we presently consider that it must be a matter for the FTT to decide at what stage it would determine any application under s.7(3). We do not think it would be appropriate for us now to say that any issue under s.7(3) would have to be dealt with as a preliminary issue. Section 7(3) begins with the words “if at any stage of the proceedings before a judicial authority …” (our emphasis). Furthermore, the judicial authority will want to be able to take into account all relevant considerations. Notwithstanding the observations of the Deputy Judge in YA at [45] to [48], we do not think it appropriate for us at this stage to go any further into procedural requirements than we have done. Implications of the Housing and Planning Act 2016 171. Mr Findlay drew our attention to certain provisions of the 2016 Act which allow spent convictions to be taken into account. Part 2 introduced a code for dealing with “rogue landlords” (see s.13). 172. Chapter 2 introduced a code for the making of “banning orders”. Section 15(1) enables a local housing authority to apply to the FTT for an order under s. 14(1) banning a person from letting housing, or engaging in letting agency or property management work, in England where that person has committed a “banning order offence” as defined in regulation (s.14(3)). Such offences include contraventions of ss.72, 95 and 238 of the 2004 Act. Within 6 months of a relevant conviction and before making an application under s.15(1), the authority must notify the person of its intention to make such an application and allow him to make representations (s.55(3) to (6)). Thereafter there is no time limit for the making of the application. By s.16 (4) when deciding whether to make a banning order, the FTT must consider (inter alia) the seriousness of the offence for which the person has been convicted, any previous convictions for a banning order offence, and whether he has ever been included in the “rogue landlord” database (see below). A banning order must last at least 12 months (s.17(2)). So it follows that where a person is sentenced to a fine (and so becomes a rehabilitated person after 12 months) the conviction will become “spent” before the order expires. 173. A person against whom a banning order is made may apply to the FTT under s.20(1) for the order to be revoked or varied. If the order was made on the basis of one or more convictions “that have become spent” the FTT is given a discretionary power to vary or revoke the order (s.20(4)). The tribunal is not obliged to take such action because the relevant conviction has become spent. On one view, the 2016 Act assumes that the FTT will have regard to the conviction (and related matters), notwithstanding the fact that it has become spent under the 1974 Act. 174. Chapter 3 of Part 2 of the 2016 Act provides for the establishment of a “rogue landlord” database. By s.30(1) where a person has been convicted of a banning order offence and the offence was committed at a time when he was a residential landlord or a property agent, the local housing authority may include him in the database maintained under s.28. Before making such an entry, the authority must, within 6 months of the relevant conviction, give the person at least 21 days’ notice of its intention to make that entry (s.31). An entry must last for at least 2 years (s.31(2)(b)). There is no time limit for making the entry once the notice has been served and there is no requirement that the conviction should not have become spent before the entry is made. The person served may within the notice period appeal to the FTT under s.32 against the decision to make the entry or the length of time for which it is to last. If an appeal is brought the proposed entry cannot be made in the database until the appeal is finally disposed of (s.31(5)). The entry must confirm (inter alia) details of any banning order offences of which the person has been convicted (s.33(2)). A person sentenced to a fine may have become rehabilitated by the time any appeal is determined and yet an entry may be made by reference to a spent conviction. An entry may last beyond the relevant rehabilitation period. 175. A person included in the database under s.30 (not s.29 - see below) may apply to the local authority for removal of his entry from the database or for that entry to be varied (s.36(1)). If the entry was made on the basis of a conviction that has become spent, the authority is given a discretionary power to vary or remove the entry (s.36(4)). 176. Where a banning order is made against a person, the local housing authority must make an entry in the database in respect of that person for the duration of the order. Unless a successful application is made under s.20 to revoke a banning order, that entry will subsist beyond the rehabilitation period for an offence punished by the imposition of a fine. 177. We do not consider that the Respondent’s analysis of the interaction between the “rogue landlord” code and the 1974 Act assists us to resolve the points of construction and the application to strike out with which we have to deal. The 2016 Act does not address the important distinction between on the one hand a conviction, offence or sentence, and on the other conduct upon which an offence or conviction is based. Furthermore, s.7(1)(d) provides that s.4(1) does not affect “the operation of any enactment by virtue of which, in consequence of any conviction, a person is subject, otherwise than by way of sentence, to any disqualification, disability, prohibition or other penalty the period of which extends beyond the rehabilitation period applicable in accordance with section 6 above to the conviction.” Human Rights Act 1998 178. The Respondent cited the decision of the High Court in NT1 v Google llc [2019] QB 344 which concerned in part a claim relating to publication of spent convictions on the internet. Warby J regarded the right to rehabilitation created by s.4 of the 1974 Act as an aspect of privacy law. He stated that where a conviction becomes spent the right under Article 8 to respect for family and private life might become engaged by any use of or disclosure about the crime, conviction or sentence. But that right may come into conflict with other rights, notably the rights to freedom of information and freedom of expression under Article 10. Accordingly, the judge held that s.4 of the 1974 Act must be read down as expressing a legal policy or principle (166(1)). In that respect, it appears that both the parties and the court had particularly in mind the first protection in s.4(1) of the 1974 Act [17] and [163]. 179. The Respondent relied upon the statement by Warby J that, in the context of human rights law, the exceptions to s.4(1) for which Parliament had legislated could not necessarily be treated as exhaustive of the circumstances in which information about a spent conviction might be disclosed [166(1)]. However, the Respondent did not develop that point by identifying and justifying any specific exception for the licensing regime in the 2004 Act. 180. For their part the Applicants did not advance any submissions based upon the Human Rights Act in support of their application to strike out. They were content that their application should stand or fall solely upon the construction of the 1974 Act itself. Accordingly, we have not gained any assistance from NT1 and the 1998 Act has not affected our construction of the 1974 Act. Conclusions 181. We summarise our conclusions on the issues between the parties as follows:- (i) On a proper construction of the 1974 Act the FTT may receive and take into account in its determination of the Applicant’s appeal, evidence or submissions dealing with relevant conduct of a rehabilitated person, including conduct which has been treated under the criminal law as an offence and resulted in a conviction which is now spent; (ii) The correct legal test to be applied to an application by the Respondent to the FTT under s. 7(3) of the 1974 Act to rely upon the convictions, offences or sentences of the Applicants is that laid down in the provision itself, as explained by the Court of Appeal in Dickinson v Yates (unreported, 27 November 1986) (see [150] to [157] above). There is no justification for this Tribunal to strike out material falling within the scope of s. 4(1) which may be the subject of such an application by the Respondent; (iii) Decisions by a local housing authority under Parts 2 or 3 of the 2004 Act to grant or refuse applications for a licence, or to revoke such a licence, involve “proceedings before a judicial authority” as defined in s.4(6) of the 1974 Act; (iv) For the reasons we have given the Applicants’ application to strike out must be dismissed. The Hon. Sir David Holgate Judge Siobhan McGrath 5 November 2019 [1] Prior to s.139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the period was 5 years and it appears that that remains the case in Scotland. [2] We mention that SI 1975 No. 1023 disapplied s.4(1) as a whole in relation to the proceedings listed in schedule 3 (see Article 5) and not merely in relation to conduct. The schedule contains many examples of circumstances where, for example, the mere fact of a conviction might be relevant.