England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBCOF 96/0015/D

(CROWN OFFICE LIST )

Royal Courts of Justice

The Strand

Thursday, 31st July 1997

B e f o r e:

LORD JUSTICE BELDAM

LORD JUSTICE KENNEDY

LORD JUSTICE ALDOUS

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SAMUEL ANTONELLI

-v-

THE SECRETARY OF STATE FOR TRADE AND INDUSTRY

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Handed-down Transcript of Smith Bernal Reporting Limited,

180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR M BELOFF QC and MS J CALDER (Instructed by Bray Walker, London EC4A 1JR) appeared on behalf of the Applicant.

MR D OUSELEY QC and MR R SINGH [MR J MOFFETT-TODAY ONLY] (Instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent.

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J U D G M E N T

(As approved by the Court )

(Crown Copyright)

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Thursday, 31st July 1997 .

LORD JUSTICE BELDAM: The long title of the Estate Agents Act 1979 described it as:

“An Act to make provision with respect to the carrying on of and to persons who carry on, certain activities in connection with the disposal and acquisition of interests in land; and for purposes connected therewith.”

It was the culmination of many attempts begun as long ago as 1888 to regulate the activities of estate agents by legislation. During the 90 years before the Act was passed, public concern had been expressed that neither Parliament nor the profession itself had made provision for registration, for minimum standards of competence and for safeguards to protect clients against defaulting practitioners. In short, any person could adopt the title of, and act as, an “estate agent” though he had no specific qualification and the public had no assurance that he was skilled, competent or even honest. After many unsuccessful attempts by private members to introduce legislation to regulate estate agency practices, a Bill introduced by a private member Mr Bryan Davies in 1978 was adopted by the government to become the Estate Agents Act 1979. The Act did not introduce any system of registration but provided means by which an estate agent could be judged unfit to practice. The power to make orders prohibiting unfit persons from doing estate agency work was entrusted to the Director General of Fair Trading. It is with these powers that the present appeal is concerned. They are contained in secs. 3-8 and the provision of Schedule 1.

By sec. 3 the Director is given power, subject to preconditions, to issue orders prohibiting a person from engaging in estate agency work if he considers that person to be unfit to practice on any of the grounds set out in the section. Before making an order, the Director must follow the procedure set out in the provisions of Part 1 of Schedule 2 of the Act. (See sec. 5.) The Director is required to give notice to the person in respect of whom he proposes to make the order, informing him of its substance and, if it is to be made under sec. 3, of the grounds on which he intends to rely. The person affected must be given not less than twenty-one days notice to enable him to submit his representations in writing why the order should not be made and stating whether he wishes to make oral representations. The Schedule makes provision for the hearing of representations and requires the Director to take them into account. He must give notice of his decision and of the terms of the order, together with his reasons, including the facts relied on.

Sec. 7 of the Act confers on the person affected by the order a right to appeal from the decision of the Director to the Secretary of State. The Secretary of State can make regulations for the conduct of such appeals. By sec. 7(4) an appellant who is dissatisfied in point of law with the decision of the Secretary of State can appeal to the High Court and with leave to this court from the decision of the High Court. See sec. 7(5).

The power of the Director to make an order is given in sec. 3 which provides:

“(1) The power of the Director General of Fair Trading (in this Act referred to as “the Director”) to make an order under this section with respect to any person shall not be exercisable unless the Director is satisfied that that person -

(a) has been convicted of -

(i) an offence involving fraud or other dishonesty or violence, or

(ii) an offence under any provision of this Act, other than section 10(6), section 22(3) or section 23(4), or

(iii) any other offence which, at the time it was committed, was specified for the purposes of this section by an order made by the Secretary of State ...”

Sec. 3(2) provides:

“Subject to sub-section (1) above, if the Director is satisfied that any person is unfit to carry on estate agency work generally or of a particular description he may make an order prohibiting that person -

(a) from doing any estate agency work at all; or

(b) from doing estate agency work of a description specified in the order;

and in determining whether a person is so unfit the Director may, in addition to taking account of any matters falling within subsection (1) above, also take account of whether, in the course of estate agency work or any other business activity, that person has engaged in any practice which involves breaches of a duty owed by virtue of any enactment, contract or rule of law and which is material to his fitness to carry on estate agency work.

(3) For the purposes of paragraphs (c) and (d) of subsection (1) above, -

(a) anything done by a person in the course of his employment shall be treated as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval, unless the employer shows that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description; and

(b) anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that person shall be treated as done by that other person as well as by him; and

(c) anything done by a business associate of a person shall be treated as done by that person as well, unless he can show that the act was done without his connivance or consent.

(4) In an order under this section the Director shall specify as the grounds for the order those matters falling within the paragraphs (a) to (d) of subsection (1) above as to which he is satisfied and on which, accordingly, he relies to give him power to make the order.

(5) If the Director considers it appropriate, he may in an order under this section limit the scope of the prohibition imposed by the order to a particular part of or area within the United Kingdom.”

By sec. 3(8), if a person fails without reasonable excuse to comply with the Director’s order, he is liable to conviction on indictment or to a fine not exceeding the statutory maximum on summary conviction. It is also relevant to set out the provisions of sec. 5(1):

“The provisions of Part I of Schedule 2 to this Act shall have effect -

(a) with respect to the procedure to be followed before an order is made by the Director under section 3 or section 4 above; and

(b) in connection with the making and coming into operation of any such order.”

and sub-sec. (4):

In any case where -

(a) an order of the Director under section 3 above specifies a conviction as a ground for the order, and

(b) in conviction becomes spent for the purposes of the Rehabilitation of Offenders Act 1974 or any corresponding enactment for the time being in force in Northern Ireland,

then, unless the order also specifies other grounds which remain valid, the order shall cease to have effect on the day on which the conviction becomes so spent.”

By para. 1 of Schedule 1:

“A conviction which is to be treated as spent for the purposes of the Rehabilitation of Offenders Act 1974 or any corresponding enactment for the time being in force in Northern Ireland shall be disregarded for the purposes of sec. 3(1)(a) of this Act.”

Mr Samuel Antonelli, the appellant, is a property agent who until 1985, at any rate, accepts that he was conducting estate agent’s business in this country. Earlier in his life he worked in the realty business in Detroit. There in the Recorder’s Court he was convicted in 1973 of the crime of “burning real estate other than a dwelling house between 1st-8th December 1971”, an offence contrary to ch. 750 sec. 73 of the Michigan Criminal Law Act. On 12th June 1973 he was ordered to serve between 2½-10 years imprisonment for that offence. He did not serve the sentence but left for Israel and from there came to the United Kingdom. He has not returned to serve his sentence.

As a result of the appellant’s activities in this country, the Director served him with a notice of proposal under sec. 3(2)(a) of the Act. The notice stated that the Director proposed to make an order prohibiting the appellant from doing any estate agency work at all. The reasons for the proposed order were that the appellant had been convicted of an offence involving violence within the meaning of sec. 3(1)(a)(i) of the Act in that on 28th February 1973 at the Recorder’s Court of the city of Detroit the appellant was convicted of arson (by burning real estate other than a dwelling house) and was sentenced to a term of imprisonment of not less than 2½ years nor more than 10 years. The appellant did not make written representations or indicate that he intended to do so orally. The Director reminded him of his right to do so on 10th September 1991. No representations were received from him and on 2nd October 1991 the Director served him with a notice of his decision that he was satisfied that the appellant had been convicted of arson at the Recorder’s Court of the City of Detroit on 28th February 1973 and had been sentenced to a term of imprisonment and that the offence was an offence of fraud or other dishonesty within the meaning of sec. 3(1)(a)(i) of the Act. He said:

“I accordingly rely on this as grounds for the order and as empowering me to make an order under sec. 3(2) of the Act.”

The notice also stated that the Director was satisfied that the appellant was unfit to carry on estate agency generally and that accordingly he made an order prohibiting the appellant from doing any estate agency work at all.

The appellant gave notice of appeal to the Secretary of State on 18th October 1991. His grounds of appeal were:

1. That the conviction relied on as grounds for the order took place overseas in respect of an alleged offence which occurred more than twenty years ago.

2. That he had been convicted of an alleged offence with which he had never been charged and which he had always and continued to deny having committed.

In accordance with his powers, the Secretary of State appointed three persons to consider the appellant’s appeal from the determination of the Director. The hearing began on 29th June 1992 but, as the grounds of appeal focused principally on the nature and validity of the conviction, it was adjourned for fuller information to be obtained about the offence or offences of which the appellant had been convicted in Detroit in 1973. The appointed persons reported to the Secretary of State on 27th April 1993 finding that the appellant was a person who was unfit to carry on estate agency work generally. They considered that the conviction in Detroit fell within sec. 3(1)(a)(i) of the Act and that in view of this he was not a fit person to carry on estate agency work under sec. 3(2) of the Act.

On 6th August 1993 the Secretary of State gave notice dismissing the appellant’s appeal and in giving his reasons he accepted:

(1) That on 28th February 1973 at the Recorder’s Court of the city of Detroit, Michigan, U.S.A., the appellant was convicted of three counts of burning property other than a dwelling house and was sentenced to a term of imprisonment of not less than 2 years 6 months and not more than 10 years;

(2) That the above convictions were for offences involving violence within the meaning of sec. 3(1)(a)(i) of the Act. He accepted the appointed persons’ conclusions that the appellant’s conviction was evidence that he is not a fit person to engage in estate agency work.

The Secretary of State considered that because of the appellant’s readiness to commit violence against property there would be a risk of detriment to the public if he were to engage in estate agency work.

The appellant appealed to the High Court. Mr Justice Buxton dismissed his appeal on 11th May 1995. In the course of his judgment which dealt with several grounds of appeal not pursued before us, he considered questions of law raised by the appellant and summarised by the learned judge as follows:

“I, therefore, turn to the issues of law raised by this appeal. They are concerned with the proper construction of sec. 3. For the purposes simply of identification I describe three questions as follows: (1) Does the expression “convicted of an offence” in sec. 3(1)(a)(i) of the Act extend to a conviction before the commencement of the Act; (2) Does that phrase extend to conviction of an offence, and if so of what type of offence in a court outside the United Kingdom?; (3) Were the offences of which Mr Antonelli was convicted under the law of Michigan properly characterised by the Secretary of State as offences of violence?”

The judge held that the expression “convicted of an offence” did extend to a conviction before the commencement of the Act. It had been argued that he should construe the Act so that it did not have retrospective effect but the judge, after considering the authorities to which he had been referred, rejected the argument that to hold the Act was capable of referring to conviction before the passing of the Act was to give it retrospective effect. He said:

“The whole object of the 1979 Act was to introduce limitations on estate agents that had not previously existed at all. Most of those limitations could only operate from the Act’s inception, and in respect of events occurring after its inception, because many of the grounds refer to breaches of requirements newly introduced by the Act. But the ability of the Director-General to interfere at all was new. That, in itself, could well be said to take away, from persons currently practising estate agency, a vested right or to introduce a new disability, because before 1979 there was no control at all over estate agents. It seems to me that Parliament, having decided that estate agents should, in the future, be controlled, and having chosen as one important test of their suitability that those who were convicted of crimes of fraud or violence should prima facie not practise as estate agents ... it is not easy to think that Parliament would have limited that disqualification to those convicted in the future, whether or not the absence of such a limitation causes the legislation to be technically characterised as retrospective.”

On the question whether the offences referred to were limited to those under United Kingdom law, the judge also rejected the appellant’s contentions. He considered one argument that, if a reference in a United Kingdom statute to an offence is intended to include offences which occur abroad as well as to those occurring in the United Kingdom, it is the practice to say so expressly. He had been asked to hold that, by analogy with the Extradition Act, any foreign offences should at least have a comparable offence in the English criminal law. The judge rejected both these arguments. He had no doubt that Parliament was concerned about criminality as shown by criminal conviction and there was clearly no intention to exclude all foreign convictions even though they fully justified a finding under sec. 3(2). Rejecting the third submission that the offence of which the appellant had been convicted in Detroit was not an offence of violence, the judge relied on the definition of violence cited to him from the Oxford Dictionary as:

“The exercise of physical force so as to inflict injury or to cause damage to persons or property.”

He said:

“Once it is agreed that violence can be directed against property, as well as against the person, I can see no reason for saying that setting fire to property is not an act of violence towards it.”

After giving one or two colourful examples of setting fire to property which would ordinarily be regarded as violent, the judge rejected this ground of appeal.

In his submissions for the appellant, Mr Beloff Q.C. asked the court to reverse the judge’s decision on five grounds.

(i) The judge was wrong to hold that the Estate Agents Act 1979 had retrospective effect enabling the Director General of Fair Trading to take into account a conviction occurring before 3rd May 1982;

(ii) The judge was wrong to hold that the reference to a conviction in sec. 3(1)(a)(i) of the Act included a conviction before a foreign tribunal.

(iii) Even if the reference to offences included foreign offences, nevertheless the judge should have held that such offences must also be offences known under the law of the United Kingdom.

(iv) The judge was wrong to hold that the offence of burning property which was not a dwelling house was an offence of violence.

(v) The judge ought to have set aside the order of the Director General of Fair Trading since in that order the Director relied on a ground different from that set out in the notice of proposal. The notice of proposal relied on conviction of the appellant for arson as being a conviction for an offence involving violence whereas the notice of decision relied on the same conviction as conviction for an offence of fraud or other dishonesty.

Mr Beloff founded his argument on the fact that before the Act came into force any person had a right to engage in practice as an estate agent. All those in practice when the relevant provisions of the Act came into force on 3rd May 1982 could be affected by powers then given to the Director General to disqualify a person from continuing to practice. The Act should therefore be construed in accordance with the general principle that Parliament does not intend the provisions of an enactment to have retrospective effect in the absence of express words or clear implications. He relied on the general principle elucidated by Lord Brightman in Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 at page 558.

“... A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past.”

The Act by giving powers to the Director General of Fair Trading to impose an order of disqualification on a person already practising as an estate agent would, if the power was exercisable in respect of convictions which had taken place in the past be imposing a new disability in regard to events already passed. The Act could reasonably be interpreted as applying only to convictions taking place after the passing of the Act and accordingly it should be so construed.

Mr. Beloff criticised the judge’s decision because he had relied by analogy on the decision of the Divisional Court in In Re a Solicitor’s Clerk [1957] 1 WLR 1219. The authority of this decision was questioned by Staughton L.J. in Secretary of State v Tunnicliffe [1993] 2 AER 712 at 724D. But Buxton J. regarded the case of In Re a Solicitor’s Clerk (supra) as the nearest parallel to the circumstances of the present case. He pointed out that the passage in the judgment of Staughton L.J. in In Re Tunnicliffe (supra) in which he expressed doubts about the validity of the decision was immediately followed by a passage cited with approval by Lord Mustill in L’Office Cherifien des Phosphates v Yamashita Ltd v Shinnihon Steamship Co. Ltd. [1994] AC 486 at page 524. Yet Lord Mustill did not refer to or express any doubts about the decision in In Re A Solicitor’s Clerk (supra). In that case the disciplinary committee of the Law Society made an order that no solicitor should employ the appellant in connection with his practice as a solicitor. It was alleged that the appellant, who was a solicitor’s clerk, was employed by solicitors in Brighton when he had been convicted in 1953 of four charges of larceny and sentenced to five years imprisonment. The charges concerned money or property which did not belong to, nor was it held or controlled by, the solicitor by whom he was employed or any client. Until the Solicitors (Amendment) Act 1956 amended sec. 16 of the Solicitors Act 1941 the disciplinary committee had no power to make an order unless the property concerned was money or property belonging to or held or controlled by the solicitor by whom the clerk was employed or by a client. It was therefore argued that the amendment of sec. 16(1) by the Act of 1956 could not apply to the appellant’s convictions in 1953. Lord Goddard CJ in the reserved judgment of the Divisional Court referred to the fundamental rule of English law that no statute should be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary or distinct implication. He held, however, that the Solicitors (Amendment) Act of 1956 was not in truth retrospective. He said:

“It enables an order to be made disqualifying a person from acting as a solicitor’s clerk in the future and what happened in the past is the cause or reason for the making of the order, but the order has no retrospective effect. It would be retrospective if the Act provided that anything done before the Act came into force or before the order was made should be void or voidable, or if a penalty were inflicted for having acted in this or any other capacity before the Act came into force or before the order was made. This Act simply enables the disqualification to be imposed for the future which in no way affects anything done by the appellant in the past.”

Accordingly the appeal was dismissed.

The purpose of the provision in the Solicitor’s Act considered by the Divisional Court was obvious and the change wrought by the Solicitors (Amendment) Act 1956 did not alter the type of effect of the provision but only extended the property to which it applied so that when Lord Goddard referred to the Act not being in truth retrospective and went on to describe its effect against the background of the passage quoted from Maxwell on the Interpretation of Statutes on which Lord Brightman based his statement of principle in Yew Bon Tew (supra) the Lord Chief Justice was, in my opinion, adopting a similar approach to the construction of the Act of 1956 to that advocated by Lord Mustill. But even if it could be said that the reasoning of the Divisional Court in support of its decision did not strictly weigh all the appropriate factors, in my view the decision would have been the same had it done so.

Buxton J. gave full weight to the criticisms of the decision In Re A Solicitor’s Clerk and expressed the view that the court’s approach was a cogent and helpful analysis of the nature of the order made in that case. I can find no error in his approach to this decision by the learned judge.

The approach to the construction of legislative provisions capable of impairing existing rights by reference to past events was considered by the House of Lords in L’Office Cherifien des Phosphates (supra) to which Buxton J. referred. In his speech, with which all the other others members of the Committee agreed, Lord Mustill said at page 524G:

“My Lords, it would be impossible now to doubt that the court is required to approach questions of statutory interpretation with a disposition, and in some cases a very strong disposition, to assume that a statute is not intended to have retrospective effect. Nor indeed would I wish to cast any doubt on the validity of this approach for it ensures that the courts are constantly on the alert for the kind of unfairness which is found in, for example, the characterisation as criminal of past conduct which was lawful when it took place, or in alterations to the antecedent national, civil or familial status of individuals. Nevertheless, I must own up to reservations about the reliability of generalised presumptions and maxims when engaged in the task of finding out what Parliament intended by a particular form of words, for they too readily confine the court to a perspective which treats all statutes, and all situations to which they apply, as if they were the same. This is misleading, for the basis of the rule is no more than simple fairness, which ought to be the basis of every legal rule. True it is that to change the legal character of a person’s acts or omissions after the event will very often be unfair; and since it is rightly taken for granted that Parliament will rarely wish to act in a way which seems unfair it is sensible to look very hard at a statute which appears to have this effect, to make sure that this is what Parliament really intended. This is, however, no more than common sense, the application of which may be impeded rather than helped by recourse to formulae which do not adapt themselves to individual circumstances, and which tend themselves to become the subject of minute analysis, whereas what ought to be analysed is the statute itself.”

He quoted with approval the statement by Staughton L.J. in Secretary of State for Social Security v. Tunnicliffe [1991] 2 AER 712 at page 724 that:

“It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree - the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.”

Lord Mustill continued at page 525F:

“Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by Parliament cannot have been intended to mean what they might appear to say.”

Later, after considering other statutes and decisions upon them, Lord Mustill said at page 527D:

“These cases do not point directly to a conclusion, but they do demonstrate that where an intermediate type of retrospectivity is in issue the purpose of the legislation and the hardship of the result contended for are of particular importance.”

Adopting this approach I start with the declared purpose of the Estate Agents Act and the policy behind its enactment that it is intended to make provision “with respect to the carrying on and the persons who carry on” estate agent’s activities. The provisions giving the Director General power to disqualify are intended for the protection of the public and it would be quixotic to suppose that Parliament intended that the public should be protected from the activities of a practitioner convicted a week after the Act came into force but not from those of the practitioner convicted a week before. Should Parliament be supposed to have regarded the imposition of a disqualification which precluded a person convicted of a serious mortgage fraud only a month or two before the passing of the Act from continuing to act as an estate agent as “unfair”? In my view, Parliament might well have considered it unfair to allow such a person to continue in practice to the possible detriment of the public whilst prohibiting a person convicted of a similar offence a month or two after the Act came into force.

I turn to the hardship of the result if the power given to the Director is exercisable in respect of past convictions. I accept that an order of disqualification from carrying on the practice of estate agency is severe and could be a catastrophic hardship. But the conviction of an offence involving fraud or other dishonesty or violence is only a precondition upon which the Director’s powers are exercisable. If satisfied that the person concerned has been convicted, the Director General still has to consider whether he is unfit to carry on estate agency work generally or of a particular description and has a wide discretion in determining whether that is so or not. Thus the past conviction is not by itself determinative of the imposition of an order of disqualification. Thus it seems to me that Parliament clearly intended to give the Director power to make an order of disqualification in respect of past convictions whilst trusting in his discretion whether he did so or not. I do not regard it as inconceivable that Parliament regarded conviction in the past as so contradictive of the protection of the public in the future that the Director ought not to have the power to make an order where such conviction is proved. The words of sec. 3(1)(a)(i) are unqualified save that the offence must involve fraud or other dishonesty or violence. Moreover I note that in the supplementary provisions as to orders under sec. 3 contained in sec. 5(4) where the only ground for the order is a conviction which becomes spent for the purposes of the Rehabilitation of Offenders Act 1974 the order ceases to have effect on the day on which the conviction becomes so spent.

In the most serious of cases to which the Rehabilitation of Offenders Act applies convictions will not become spent for a period of ten years. Some offences are regarded as so serious that they do not become spent at all and the imposition of the sentence by the sentencing court is clearly regarded as a measure of its gravity. It is therefore a further factor indicative of Parliament’s intention that the powers of the Director to make an order of disqualification could not be founded on an offence which had become spent under the Rehabilitation of Offenders Act (which incidentally applies to conviction for offences before a court outside the United Kingdom (see sec. 1(4)(a)). Thus Parliament may well have considered it not unfair to impose a disqualification albeit with severe hardship on those who were already practising estate agents in a case in which the practitioner had a previous conviction for an offence which was not or could not be regarded as rehabilitated.

Taking account of these factors, I am satisfied the judge was right to hold that the word “conviction” includes conviction before the passing of the Act.

I can see no ground for confining the word “conviction” so that a conviction before a court outside the United Kingdom for fraud, dishonesty or violence is excluded. By 1979 fraud and dishonesty had already achieved an international dimension. Parliament is unlikely to have intended that a person convicted of serious fraud, for example in France, should be able to commute from Calais to Dover and there to carry on practice as an estate agent. The fact that the matters listed in sub-sec. (a)(ii) and (a)(iii) are offences which can arise only under United Kingdom legislation is in my view beside the point. I do not regard it as anomalous that offences committed outside the United Kingdom should be the subject matter of sub-sec. (i). Nor do I consider that the fact that in other statutes Parliament has been careful to define the territorial extent of the expression “conviction”. In my view the purpose of the Act is a more persuasive consideration and it would seem to me anomalous if Parliament had not intended convictions for fraud, dishonesty or violence outside the United Kingdom as qualifying to enable the Director to make an order that a person so convicted was unfit to carry on estate agency work generally. Moreover the reference to the Rehabilitation of Offenders Act 1974 I consider points to the fact that conviction in sec. 3(1)(a)(i) was meant by Parliament to include conviction for an offence before a court outside the United Kingdom.

Mr Beloff argued that, if foreign offences were to be within sec. 3(1)(a)(i) of the Act, they must by analogy with the definition of extradition crime in the Extradition Act 1989 also be offences under the law of the United Kingdom. He said that if foreign offences were to qualify, a similar provision to that contained in sec. 2 of the Extradition Act 1989 would have been included. Further he argues that the conviction of the appellant in Michigan for “burning real estate other than a dwelling house” was conviction for an offence which has no equivalent in the United Kingdom. In particular he said that under the law of the state of Michigan there was no requirement that the property burnt should be the property of another. In fact the property in question was owned by the appellant himself. Thus it is said that the appellant could not have been found guilty by a United Kingdom court on a charge framed as the charges were in the Recorder’s Court in Detroit. This is undoubtedly true, though a person who damages his own property reckless whether the life of another would be endangered does commit an offence under sec. 1(2) of the Criminal Damage Act 1971 and persons who set fire to property to defraud insurers are seldom conscientious for the safety of others.

I can see no justification for including a double criminality requirement for the offences referred to in sec. 3(1)(a)(i). The offences are described as:

“Involving fraud or other dishonesty or violence”.

That description itself suggests that the offences must be of a particular kind and not necessarily specific to the law of the United Kingdom. Moreover conviction for offences of the kind referred to are clearly related to the purpose of the statute. The question is not whether the convictions are for specific offences but whether the convictions are for offences which involve particular attributes. I would reject this ground of appeal.

The question raised by this ground is whether an offence involving violence within the meaning of sec. 3(1)(a)(i) of the Act means an offence involving violence to the person. Does it also include the application of force to property such as a building. The offence under ch. 750, sec. 73, of the Michigan Criminal Law Act was committed by any person who “wilfully or maliciously burns any building or other real property or the contents thereof ... the property of himself or another”.

The definition of “violence” from the Oxford Dictionary cited by the judge was:

“The exercise of physical force so as to inflict injury on or to cause damage to persons or property.”

The question is whether violence was used in this sense in the sub-section.

I can see no justification for confining the word “violence” to violence to the person. In the context of an offence related to activities in connection with estate agency and the management of property, the unlawful eviction of the occupiers of premises with the threat of violence is one of the situations in which property managers have been known to commit an offence “involving violence”. Thus a threat or an attempt to set fire to property even if no actual danger to life or limb would be expected is to my mind an offence “involving violence” within the meaning of the section. Accordingly I have no doubt that Parliament intended that convictions for an offence involving violence towards property should be within sec. 3(1)(a)(i).

Mr Beloff’s final point attacks the validity of the Director’s decision. It was not a ground argued before the judge though other similar grounds were advanced.

In the notice of proposal given by the Director he stated as the grounds for the proposed order that the appellant had been convicted of an offence involving violence within the meaning of sec. 3(1)(a)(i) of the Act and specified the conviction for arson in the Recorder’s Court of the City of Detroit on 28th February 1973. In giving notice of decision in accordance with the section and para. 9 of Schedule 2, the Director’s adjudicating officer, after stating that he was satisfied that the appellant was convicted of that offence, said:

“6. I further find that the offence referred to in para. 5(i) above is an offence of fraud or other dishonesty within the meaning of sec. 3(1)(a)(i) of the Act. I accordingly rely on this as grounds for the order and as empowering me to make an order under sec. 3(2) of the Act ...”

Mr Beloff submits that the order is bad on its face since it relies upon a different ground for making the order than the ground set out in the notice of proposal. He argues that the importance of the notice of proposal is to enable the person affected by the order to make representations which it is the duty of the Director to take into account that accordingly the appellant could have been deprived of an opportunity of making representations that the offence did not involve fraud or dishonesty.

As earlier indicated, the words “involving fraud or dishonesty or violence” are descriptive of the offence. The particular offence relied on both in the notice of proposal and in the notice of decision was the same offence. It was open to the appellant if he could honestly do so to submit that the offence referred to in the notice of proposal involved neither fraud, dishonesty nor violence but in fact he made no representations to the Director. In fact it would appear that in addition to being an offence involving violence towards property, the offence did involve fraud or dishonesty in the sense that it was committed with a view to making a fraudulent claim under a policy of insurance on the property. Where a person sets fire to his own property it is not unusual to find that the motive is one of unlawful gain and it is therefore an offence which in the wider sense may be said to involve fraud or dishonesty. There are other offences which can involve both fraud or dishonesty and violence and merely because the Director relied on one rather than the other descriptions of the offence does not in my view invalidate his decision. He had power to make the order if satisfied that the person affected had been convicted of the particular offence specified in the notice of proposal and that offence could properly be brought within the description of an offence within sec. 1(3)(a)(i) of the Act. In my view the fact that the specified offence involved one rather than another of the characteristics would not deprive the Director of the power to make the order provided it could properly be regarded as involving one of them. I would thus reject this ground and would dismiss the appeal.

LORD JUSTICE KENNEDY: I agree.

LORD JUSTICE ALDOUS: I also agree.

ORDER:

(1) Appeal dismissed;

(2) Respondents' costs not to be enforced without leave;

(3) Application for leave to appeal to the House of Lords refused.