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Guidance on the effect of delay on proceedings
1. The principle surrounding delay at common law is whether there has been an abuse of process due to an unjustifiable delay in bringing the regulatory proceedings. In considering this, time starts to run from the date of the act/offence being investigated.
2. In considering whether the proceedings can continue, the regulator must decide whether the architect can receive a fair trial, and whether it would be fair to continue with the investigation in all of the circumstances.
3. The Court of Appeal[1] has issued guidance to assist in this consideration:
Serious Prejudice
The architect must show on a balance of probabilities that he or she will suffer serious prejudice because of the delay. In considering serious prejudice, consideration should be given to the type of evidence and the extent to which its quality will deteriorate over the passage of time (e.g. witness recollection as opposed to documentary evidence).[2]
Reasons for the delay
In order to stay the proceedings, the delay cannot have resulted from the actions of the architect, and is less likely to be appropriate if it is not the fault of the complainant or the regulator.
Public Interest
Only in exceptional cases will delay be a reason for desisting with regulatory proceedings when it would have otherwise been in the public interest to proceed with an investigation.
4. Architects also have rights to a fair trial under Article 6(1) European Convention on Human Rights
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
5. When considering delay as a breach of human rights, time does not start to run until the architect is subject to a ‘charge’, which in this context is likely to be the letter from ARB notifying him of the allegations[3].
6. “Reasonable time” will be different for each case, but dependent on the period of delay, the complexity of the evidence, the conduct of the architect, and the manner in which the regulatory body has acted.
7. It is not necessary for an architect to show that he has been prejudiced in order to establish that his human rights have been breached; but neither will it automatically follow that the proceedings should be stayed, if it remains in the public interest to proceed.
8. By way of example, in Rycroft v Royal Pharmaceutical Society[4] the High Court found that there had been an inordinate and unjustified delay in referring the allegations against the pharmacist to the Investigating Committee. However the delay did not cause serious prejudice, so the Court refused to quash the disciplinary proceedings.
Other Regulators
9. Both the GMC (General Medical Council) and the RPS (Royal Pharmaceutical Society) have disciplinary rules barring the investigation of complaints which are more than 5 years old. Courts have deemed those rules to be reasonable and enforceable, and may not readily be departed from.
ARB Investigations
10. ARB issues guidance that it may well not be able to investigate complaints of more than six years old. Previous cases at the Professional Conduct Committee have completely, and partly, been dismissed on the grounds of delay within this period of time.
11. There are however no rules in place which prevent an Investigations Panel proceeding with a case which is more than six years old.
12. The IP advice ‘What is a case to answer’ states:
The Investigations Panel may give less or no weight to evidence of a tenuous character, for example evidence which is inherently weak, vague or inconsistent with other evidence such as undisputed documents. The Investigation Panel will consider the evidence in support of each individual allegation as a whole including both its strengths and its weaknesses.
13. While case law dictates that an investigation should be stayed on grounds of delay only in exceptional circumstances, the IP does have the discretion to discount evidence if it has been inevitably weakened through the passage of time.
14. If the Investigations Panel is minded to dismiss a case on the grounds of delay which it would otherwise have referred to the Professional Conduct Committee, it would be good practice to seek the advice of the ARB solicitor before reaching a final decision.
[1] Attorney-General’s Ref (No 1 of 1990) [1992] QB 630 CA
[2] R v Buzalekand Schiffer[1991] CrimLR 115
[3] Deweerv Belgium (1980) 2 EHRR 439
[4] R (on the application of Rycroft) v the Royal Pharmaceutical Society [2010] EWHC 2832
