Law Report: US conviction made estate agent unfit to practice

Law Report: 14 OCTOBER 1997

The Director General of Fair Trading was entitled to make an order of unfitness to practice as an estate agent in respect of a person who, before the commencement of the Estate Agents Act 1979, had been convicted in the United States of an offence of burning real estate other than a dwelling house, contrary to the Michigan Criminal Law Act.

Antonelli v Secretary of State for Trade and Industry; Court of Appeal (Lord Justice Beldam, Lord Justice Kennedy and Lord Justice Aldous) 31 July 1997

The Court of Appeal dismissed the appeal of Samuel Antonelli against the decision of Mr Justice Buxton, dismissing his appeal against the decision of the Secretary of State for Trade and Industry, who had dismissed his appeal against the determination of the Director General of Fair Trading under section 3 of the Estate Agents Act 1979 that he was considered unfit to practice as an estate agent.

The appellant, who had been conducting estate agent's business in this country, had, in 1973, been convicted in the United States of an offence of "burning real estate other than a dwelling house", an offence contrary to the Michigan Criminal Law Act.

Michael Beloff QC and Renee J Calder (Hallewell Bunyard) for the appellant; Duncan Ouseley QC and Rabinder Singh (Treasury Solicitor) for the Secretary of State.

Lord Justice Beldam said that section 3(1)(a)(i) of the Estate Agents Act 1979 provided that the Director General of Fair Trading might make an order prohibiting a person from carrying on work as an estate agent if he considered that person to be unfit on the ground that he had been convicted of an offence involving fraud or other dishonesty or violence.

The appellant appealed, inter alia, on the grounds that the judge was wrong to hold that the 1979 Act had retrospective effect enabling the Director General of Fair Trading to take into account a conviction occurring before the commencement of the Act; that he was wrong to hold that the reference to a conviction in section 3(1)(a)(i) of the Act included a conviction before a foreign tribunal; that even if the reference to offences included foreign offences, the judge should nevertheless have held that such offences must also be offences known to English law; and that he was wrong to hold that the offence of burning a property which was not a dwelling house was an offence of violence.

The provisions in the 1979 Act giving the Director General power to disqualify were intended for the protection of the public. 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 practitoner convicted a week before.

The conviction of an offence of one of the types specified was only a precondition upon which the Director's powers were exercisable. It seemed, thus, that Parliament had 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. Moreover, under the supplementary provisions in section 5(4), an order under section 3 ceased to have effect on the day on which the conviction relied on became spent for the purposes of the Rehabilitation of Offenders Act 1974. Taking account of those factors, the judge was right to hold that the word "conviction" included a conviction before the passing of the Act.

With regard to second ground, it would seem 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 the person so convicted was unfit to carry on estate agency work generally.

It was said in support of the third ground that the appellant could not have been found guilty by a United Kingdom court on a charge framed as the charges were in the United States. That was undoubtedly true, but the description of the offences sugested that they must be of a particular kind and not necessarily specific to the law of the United Kingdom. The question was not whether the convictions were for specific offences but whether they were for offences which involved particular attributes.

The question raised by the fourth ground was whether an offence involving violence within section 3(1)(a)(i) included the application of force to property such as a building. The definition of "violence" in the Oxford English Dictionary cited to the judge was: "the exercise of physical force so as to inflict injury on or to cause damage to persons or property". There was no doubt that Parliament intended that convictions for an offence involving violence towards property should be within section 3(1)(a)(i). The appeal would be dismissed.

- Kate O'Hanlon, Barrister