Mr Alexander James Mainwaring Upton

ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

ALEXANDER JAMES MAINWARING UPTON (064256H)

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Held in person on:

21 January 2025

At:

The General Dental Council (GDC)
37 Wimpole Street
London
W1G 8DQ

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Present:

Martin Winter (Legally Qualified Chair)
Janice Tam (PCC Architect Member)
Paul Grant (PCC Lay Member)

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The Architects Registration Board (“the ARB”) was represented by Mr Leonard Wigg (“the Presenter”) instructed by Kingsley Napley LLP.

Mr Alexander Upton (“the Registered Person”) attended the hearing and was represented by Mr Guy Micklewright, Counsel, instructed by South Bank Legal Ltd.

Allegation

1. The Registered Person faces an allegation that he has been convicted of a criminal offence other than an offence which has no material relevance to his fitness to practise as an architect contrary to section 15(b) of the Architects Act 1997 (“the Act”) and is liable to a disciplinary order.

2. The fact of the conviction was evidenced by a certificate of conviction and is set out below;

Between 22/04/2023 and 30/11/2023 at London supplied goods, namely and Services (sic), in contravention of a condition requiring you to give a security for the payment of any Value Added Tax which was or may have become due from you. Contrary to section 72 (11) of and paragraph 4 (2) of Schedule 11 of the Value Added Tax Act 1994

3. The Registered Person notified the ARB of the fact of his conviction by email on 4 June 2024.

4. As the Registered Person was convicted on 24 May 2024, the Architects Code: Standards of Conduct and Practice 2017 (“the Code”) applies. Criminal convictions are referred to in the General Guidance section of the Code as follows:

‘A criminal conviction may be materially relevant to your fitness to practise, if, for example (this list is not exhaustive):

a) It constitutes an offence under the Architects Act 1997 or other legislation directly affecting architects;
b) It arises directly out of your professional activities;
c) It constitutes an offence of dishonesty;
d) It otherwise calls into question your integrity.’

5. The ARB submits that the conviction is materially relevant to the Registered Person’s fitness to practise because it is an offence that arises out of his professional activities and his role as director of Alex Upton Architects Limited and it calls into question his integrity. It is alleged that the Registered Person’s conviction breaches Standards 1.1 and 9.2 of the Code.

Factual Background

6. The Registered Person is a registered architect and was a director at his own practice, Alex Upton Architects Limited.

7. On 21 April 2023 a VAT Notice of Requirement was posted by HMRC to Alex Upton Architects Ltd (‘the Company’) under Paragraph 4(2) of Schedule 11 of the Value Added Tax Act 1994 requiring a security payment against future VAT payments. If the security deposit is not paid, and the business continues to trade and make taxable supplies, they are liable to prosecution. In the case of a limited company, a director becomes liable to prosecution.

8. Correspondence between HMRC and the Registered Person followed service of the notice, but the security payment remained unpaid. The Registered Person’s accountant offered a payment plan in November 2023, but this was refused by HMRC in December 2023. The matter was eventually referred to the Crown Prosecution Service and a criminal charge was authorised on 3 April 2024. The Registered Person appeared before Westminster Magistrates Court on 24 May 2024 and pleaded guilty to the charge. He was fined £6,656 and ordered to pay compensation of £29,864.51. He was also ordered to pay CPS costs of £85. He was ordered to make monthly payments of £1,100 against these financial orders.

9. On 4 June 2024, the Registered Person contacted the ARB by email to notify of his conviction in accordance with the Code Standard 9.2 (requiring notification within 28 days of the date of conviction). His email also set out a note drafted by his solicitor and an attendance note from the Magistrates Court hearing summarising the mitigation presented at the sentencing hearing.

Finding on Material Relevance of the Conviction

10. The Committee noted that, upon having the charge read, the Registered Person admitted the fact of the conviction and admitted that the conviction was materially relevant to his fitness to practise. The Committee noted that the conviction was proved by way of the certificate of conviction provided by the Westminster Magistrates Court. However, it is a matter of the Committee’s judgement whether the conviction is materially relevant to the Registered Person’s fitness to practise.

11. The Committee had regard to the content of the Architects Code: Standards of Professional Practice (“the Code”) published in 2017. In reaching its decision the Committee considered the submissions and the bundle prepared by ARB and the statement presented by the Registered Person.

12. The ARB contended that the conviction was materially relevant because it arose from the VAT liability of the Registered Person’s practice as an architect. The Registered Person did not, understandably, provide any submissions on this issue.

13. The Committee considered the legal advice provided by the Chair, which it accepted, that the general guidance provided at page 16 of the Code sets out a non-exhaustive list of factors that would support the contention that a criminal conviction was relevant to fitness to practice. This list included circumstances where the conviction “arises directly out of your professional activities” and “otherwise calls into question your integrity”.

14. The Committee is satisfied that the conviction is materially relevant to fitness to practise as an architect. The conviction is for an offence against the public purse and was directly connected to the Registered Person’s professional activities as it related to VAT issues that arose through the architecture business of the Registered Person.

15. The Committee is satisfied that public confidence in the profession would be undermined if there was no finding that the conviction was materially relevant to fitness to practise. The Committee considers that the Registered Person’s conviction reflected a falling short of Standards 1.1 and 9.2 of the Code.

Sanction

16. Having found the Registered Person’s convictions had material relevance to his fitness to practise as an architect, contrary to section 15(b) of the Act, the Committee then went on to consider what, if any, sanction to impose in this case.

17. The Committee heard submissions from the Presenter for the ARB and Mr Micklewright for the Registered Person and received legal advice from the Chair, which it accepted. The Committee took careful note of the ARB Sanctions Guidance published in 2022.

18. The Presenter accepted that the conviction arose as a consequence of the Covid 19 restrictions but submitted that the public would be troubled by the failure of the Registered Person to comply with a mandatory statutory order either to cease trading or pay the security deposit and this deliberate failure to comply over a 7-month period significantly aggravated the fact of the conviction.

19. The Registered Person did not give evidence, but Mr Micklewright referred the Committee to the Registered Person’s statement and the background to the criminal conviction. He submitted that the offence was committed because of unprecedented cash-flow issues arising from the Covid 19 lockdown and the subsequent downturn in work. He described a hitherto unproblematic, but admittedly casual, approach to accounting systems by the Registered Person. He submitted that when the cashflow issues began to manifest themselves, the Registered Person was ill-equipped to appreciate and manage the dire financial predicament facing his business. The Registered Person fostered a well-intentioned, optimistic, but ultimately misguided desire to trade out of the situation.

20. The Registered Person now acknowledges that he failed to take appropriate professional advice at this crucial time and realises, in hindsight, that the requirement to pay a substantial security deposit to HMRC effectively made his business unviable. His decision to carry on trading was not motivated by personal financial enrichment but that he wanted to protect his clients, employees and the financial security of his family by continuing to trade in the hope that he would be able to meet his VAT obligations as business improved.

21. Following his conviction, to which the Registered Person entered a guilty plea at the earliest opportunity, the business closed. The Registered Person is now working in a new architecture business in which he has deliberately chosen not to take a company officer role and he is not a shareholder. Mr Micklewright explained that this new business has adopted improved accounting practices using appropriate software and specialist accounting advice. The Registered Person has set out plans to “upskill” himself and improve his own business knowledge through personal development, including bespoke training, before he would contemplate a return to a company director role. These factors were advanced to demonstrate the Registered Person’s insight and to establish that the current risk to the public is minimal.

22. The Registered Person has expressed his intention to settle his debt with HMRC in full. He is up to date with the repayments of the fine and compensation following his conviction and is in discussions with HMRC in respect of the shortfall in VAT. Mr Micklewright submitted that, should the Committee’s sanction suspend or halt the Registered Person’s ability to work, his efforts to settle these financial obligations would be significantly impaired and this consequence would be contrary to the public interest that he discharge his debts in full. Any cessation of the Registered Person’s ability to practice would also impact upon the Registered Person’s family and the ability of the new business to attract new clients or service existing clients.

23. The Registered Person confirmed, through Mr Micklewright, that he is currently able to cover his existing financial obligations and could repay a Penalty Order should the Committee decide that was the correct sanction to impose.

24. The Chair provided legal advice to the Committee, which it accepted, as follows;

25. The Committee must have regard to the public interest which includes the need to protect the public, maintain confidence in the profession and the ARB and to declare and uphold proper standards of conduct, behaviour and competence. The Committee must be mindful that the purpose of imposing a sanction is not to be punitive, although it may have a punitive effect, and that any sanction must balance the rights of the Registered Person against the need to uphold proper standards and protect the public.

26. The Committee must first assess the seriousness of the conduct with reference to the facts underlying the conviction and by considering the competing aggravating and mitigating factors in accordance with the guidance provided by the case of Fuglers & Ors v Solicitors Regulation Authority [2014] EWHC 179.

27. The Committee must have regard to the principle of proportionality; weighing the impact a sanction may have on the Registered Person against the need to protect the public and uphold professional standards.

28. The Committee must be mindful that its interference with the Registered Person’s right to practise, whilst using the title of “architect”, must be no more than is absolutely necessary to achieve the Committee’s purpose in protecting the public and upholding public confidence in the profession.

29. The Committee considered the following aggravating factors applied in this case:

i. The offence was committed over a period of seven months
ii. The conviction was against the public purse

30. The Committee considered the following mitigating factors applied in this case:

i. The Registered Person has a previous unblemished professional record with the ARB and is of good character (save for the conviction that is the subject of this matter)
ii. The offence was committed as an indirect consequence of the Covid 19 pandemic and the impact of the restrictions that were imposed on businesses and the public
iii. The Registered Person has demonstrated a high level of remorse and insight into his failings
iv. There was evidence of remedial action being undertaken by way of repayment of the sums due and training to address the underlying issues
v. The Registered Person had voluntarily notified the ARB of the conviction very promptly following his conviction and had engaged positively throughout making full and frank admissions both to the HMRC charges and the ARB proceedings.

31. The Committee found that the Registered Person has been able to look back at his conduct with a self-critical eye. He has acknowledged fault and expressed genuine regret and remorse. There is demonstrable evidence that he has not only understood his failings, and the underlying reasons for them, but has taken steps to avoid any immediate repetition (by stepping back from his previous role as a company officer) and to prevent any future reoccurrence by adopting more appropriate business support and “upskilling” through professional development and training. The Committee is satisfied that there are no entrenched issues of integrity and there are substantial grounds to believe that the Registered Person has clear insight into his failings, has learned from the experience and, therefore, any repetition is highly unlikely.

32. The Committee was satisfied that this case is at a medium level of seriousness. The conviction is for an offence arising from the Registered Person’s practise and is against the public purse. As such the conviction undermines the reputation of the Registered Person, the ARB and the wider profession and is, in that sense, properly described as serious. However, the conviction is not for an offence of dishonesty and is at the lowest end of the range of criminal offences. It is a criminal offence that is only triable in the summary jurisdiction and does not carry a sentence of imprisonment and can only attract a fine upon conviction.

33. When considering which sanction was most appropriate and proportionate the Committee adopted the approach set out in the case of Rashid v General Medical Council (reported at 2006 EWHC 886 Admin) to consider the least sanction first and to ask itself whether that is sufficient and, if not, then go on to the next, and so on.

34. The Committee first considered whether to take no action other than to mark the finding under section 15(b) of the Architects Act 1997. However, to do so would require exceptional circumstances to be present. The Committee is not of the view that the level of seriousness could justify imposing no sanction.

35. The Committee considered the next available sanction, Reprimand. This sanction is suitable for cases at the lower end of seriousness, which the Committee has already decided this case is not. The main factors against this sanction being appropriate were the 7-month period over which the offence took place and that it was deliberate. Consequently, the Committee is satisfied that a Reprimand would be inappropriate.

36. The Committee considered the next available sanction, Penalty Order. The Committee found that the relevant factors set out in the ARB sanction guidance applied in this case. There was a financial benefit to the Registered Person in not paying the security deposit and the Committee is satisfied that there is an ability to repay a Penalty Order. Furthermore, there is significant and demonstrable insight and remorse which would also support this sanction being appropriate.

37. In order to test whether this was the correct sanction, the Committee went on to consider the next available sanction, Suspension. The Committee could not identify any factors within the guidance that would suggest Suspension was the appropriate sanction and determined that a Penalty Order was the correct and proportionate sanction.

38. In setting the amount of the Penalty Order, the Committee considered that were it not for the steps embarked upon by the Registered Person following his conviction developing his insight through adjusting his business practice and embarking upon training, a Suspension Order could well have been the appropriate sanction. By his efforts, the Registered Person has done enough to persuade the Committee to avoid the imposition of a Suspension Order but the Penalty Order must reflect the seriousness of the conduct and will be the maximum of £2,500. This sum is payable within 28 days.

39. That concludes this determination.