Mr Andrew Guy
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Andrew Guy 072315K
Held on 3-6 February 2020
At
International Dispute Resolution Centre
70 Fleet Street
London
EC4Y 1EU
———-
Present
Julian Weinberg (Chair)
Judy Carr (PCC Architect Member)
Jules Griffiths (PCC Lay Member)
In this case, the ARB is represented by Ms Kathryn Sheridan of Kingsley Napley LLP.
Mr Andrew Guy has neither attended this hearing nor is he represented.
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Charge and allegations:
1) In this case, the ARB is represented by Ms Kathryn Sheridan. Mr Guy has neither attended this hearing nor is he represented. Mr Guy faces a charge of unacceptable professional conduct (“UPC”) based on two allegations in relation to breaches of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”). It is alleged that:
1. The Respondent posted false reviews under pseudonym(s) in relation to multiple businesses;
2. The Respondent’s actions at particular 1 were dishonest and/or lacked integrity.
Preliminary issues
Application regarding jurisdiction
2) The Respondent has submitted correspondence to the ARB purporting to resign from the register. As such, he submitted, in effect, that the Committee had no jurisdiction to hear this matter as a finding of UPC can only be made against a registered architect.
3) Having made an earlier enquiry of the ARB in 2019 regarding resigning from the register, the ARB emailed the Respondent in June 2019 stating “You can resign from the Register at any point…..In order to resign from the register, you will need to confirm this in writing (email is fine) or you can log in to our website….”. On 31 January 2020, the Respondent emailed the ARB under the heading “Resignation of architect: Andrew Guy” stating: “In regards to the above, I give notice that on this day, Friday 31 January 2020, I Andrew Guy (072315K) will resign from the Architects Registration Board with immediate effect….as of Friday 31 January 2020, I am no longer a registered architect under the Architects Act 1997….”.
4) Karen Holmes, the Registrar and Chief Executive of the ARB responded to that email. She made reference to section 3(3) of the Architects Act 1997 in relation to the request to remove his name from the register and stated that: “I understand that you are currently subject to an investigation by ARB’s Professional Standards Team and are scheduled for a hearing that begins on Monday 3 February. Consequently I cannot use my discretion to remove you from the Register at this time.”
5) The Respondent replied by letter also dated 31 January 2020 stating: “You do not have the authority to exercise your discretion as to whether you accept or do not accept my resignation as an architect….You cannot force an architect to remain practising as such, and to be on your register, if they choose to resign. The fact is I can resign from the register at any point which I choose to do so and you are to accept my resignation whether you like it or not”. He too referred to section 3(3) of the Architects Act which states: “The Registrar shall make any necessary alterations to the Register and, in particular, shall remove from the Register the name of any registered person who has died or has applied in the prescribed manner requesting the removal of his name”. He made particular reference to the mandatory nature of the word “shall”. He concluded by stating that he considered Ms Holmes’ response stating that she could not remove his name from the register whilst the investigation was ongoing to be “very arrogant, threatening and intimidating”.
6) Ms Sheridan referred the Committee to rule 18 of the ARB’s General Rules which states:
“Any Registered Person who requests the removal of their name from the Register pursuant to Section 3(3) of the Act, shall apply in writing stating the grounds on which the application is made. Any Registered Person who requests the removal of their name from Register will not be entitled to have their annual retention fee (or part thereof) refunded. Removal may be deferred where allegations of unacceptable professional conduct or serious professional incompetence are outstanding”.
7) Ms Sheridan also referred the Committee to the case of Woodman-Smith v ARB [2014] EWHC 3639 (Admin). The High Court considered whether the Professional Conduct Committee had jurisdiction to proceed with a disciplinary hearing after an architect had sought to have his name removed from the register. Whilst the High Court did not make a definitive determination on the point, she referred to paragraphs 19 and 21, noting that the Registrar’s obligation does not extend to removing a name from the register ‘forthwith’, and that, as at the time of this hearing, the Respondent remains a ‘registered’ person. As a result, she submitted, the Committee had jurisdiction to hear these disciplinary proceedings. Ms Sheridan reminded the Committee that the Respondent’s name was still on the register and she provided the Committee with a copy of his 2020 registration certificate.
8) The Committee accepted Ms Sheridan’s submissions and in the circumstances, concluded that whilst the Respondent’s name remained on the register, the Committee had jurisdiction to hear the case.
Service of Notice
9) As the Respondent has not attended the hearing, the Committee firstly heard from Ms Sheridan regarding service of the relevant notice. Notice of the hearing was sent to the Respondent by registered post on 29 November 2019, more than 49 days before the date of this hearing as prescribed by sections 24(1) and (2) of the Architects Act 1997 (“the Act”) and Rules 6 and 14c of the Professional Conduct Committee Rules 2019 (“the Rules”). The Notice contained the prescribed information and was sent to the Respondent at his registered address.
10) Having heard her submissions and having accepted the advice of the Legally Qualified Chair which made reference to the case of Jatta v NMC [2009] EWCA Civ 824 and which is a matter of record. The Committee noted that the ARB’s obligations extend to posting, and not to proving receipt. In the circumstances, the Committee is satisfied that service has taken place in accordance with the Rules.
Application to adjourn
11) The Committee went on to consider the Respondent’s application as set out in his letter dated 20 January for the case to be adjourned “based on ARB having an unfair advantage on proceedings due to non-receipt of documents”. He stated that he had not received the Notice of Hearing together with the supporting documents sent under cover of the ARB’s letter of 29 November 2019 sent either by recorded delivery or email. He confirmed that he would not have received the email because he had “blocked all forms of communication from @arb.org.uk entering into my email system….That is a fact I can prove beyond doubt from my email service provider, would you like me to send proof of this to you?”.
12) The Committee was shown a copy of a further letter from the Respondent dated 2 February 2020. Whilst initially stating that he had resigned on 31 January 2020 and was therefore ““at a loss as to why you continue to contact me”, he reconfirmed that “no solicitors report has been received by me as well as other documentation mentioned in point 5 of Harriet Swanston’s Witness Statement and thus I am unable to prepare my defence”.
13) Ms Sheridan set out the background to this application and summarised the Respondent’s previous applications for an adjournment. She submitted that the application should be refused on the basis that the Respondent was trying to frustrate the process and deliberately seeking to evade acceptance of communications from the ARB. On 31 January, the ARB attempted to send a further copy of the papers to the Respondent by recorded delivery. The ‘track and trace’ report from the Post Office indicated that the item was not accepted. The Respondent also emailed the ARB the same day (from the address that blocked emails being received from the ARB), stating “I think you tried to send me documents earlier today. BUT because I was not a registered architect at the time with you; I declined your letter….I am so sorry if I declined your letter, I hope it was not anything important!….I would love to accept any mail tomorrow, but of course you are aware I am no longer in the UK as of now! I am sorry. Ta ta. Good luck…”.
14) The Committee has had sight of the documentation provided to the Legally Qualified Chair in relation to the Respondent’s previous applications to adjourn. It has accepted his advice and in doing so, has adopted the principles and authorities as set out in relation to the Respondent’s two previous decisions in reaching its decision. A copy of those decisions is attached as Appendix 1.
15) In reaching its decision, the Committee has noted:
a) The documents sent on 29 November 2019 have not been returned to the ARB;
b) The Respondent had the opportunity to receive the documents by email but blocked the ARB’s email;
c) When a further copy of the papers was sent to the Respondent, he refused to accept delivery of them;
d) He was given the opportunity to engage by video link or phone but has not agreed to this or meaningfully engaged to request this to be done;
e) 6 witness have made themselves available to attend the hearing to give evidence;
f) He has unequivocally stated in his correspondence, including as recently as 2 February 2020, that he should not be contacted as he had tendered his resignation.
16) Having taken all the above factors into account, the Committee has concluded that the Respondent’s assertion in his email of 31 January that he wished to adjourn the hearing to prepare a defence, was little more than a superficial pretence that he wished to engage in the hearing, and was not borne out by the content and tone of his correspondence or conduct, for example by leaving the country for a year on a sabbatical, three days before the hearing was due to start and not postponing his travel date. It therefore concluded that the interests of justice are such that it was not appropriate to adjourn the hearing as it did not have confidence that an adjournment would secure the Respondent’s attendance at any future hearing. The Committee therefore refused the application having concluded that it did not consider there to be any unfairness or injustice in doing so.
Application to proceed in absence
17) Ms Sheridan repeated her submissions in relation to her objections to the Respondent’s adjournment application.
18) Having accepted the advice of the Legally Qualified Chair, the Committee has applied Rule 14 of the Rules, the principles set out by the Court of Appeal in R v Jones (Anthony William) [2003] 1 AC 1 and the factors set out in Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34 and GMC v Adeogba and Visvardis [2016] EWCA Civ 162. The Committee noted that its primary objective is the protection of the public and of the public interest, and that the “fair, economical, expeditious and efficient disposal of allegations made against medical practitioners is of very real importance”. As stated in Adeogba, “where there is good reason not to proceed, the case should be adjourned; where there is not, … , it is only right that it should proceed….there is a burden on…all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.”
19) The Committee has borne in mind the following:
1. The nature and circumstances of the Respondent’s absence, and in particular whether his absence may be deliberate and voluntary;
2. The Respondent has had the opportunity of postponing his departure abroad by a few days to attend this hearing or returning to the UK to attend his hearing or attend by phone / video link, but there is no information before the Committee that the Respondent has taken any meaningful steps to avail himself of these possibilities;
3. Whether an adjournment might result in the Respondent attending at a later date. The Committee has taken into account the history of this case and the previous applications that the Respondent has made for the hearing to be adjourned and the basis for the refusal of those applications. The Committee saw no evidence that led it to conclude that by adjourning the matter, the Respondent would attend the hearing on any future date given his stated view that he had now resigned and had taken steps to block the ARB’s emails and refused to accept post sent by the ARB;
4. The likely length of any adjournment (until March 2021) and what would be achieved by adjourning. For the reasons stated above, an adjournment was not considered appropriate;
5. The extent of the disadvantage to the Respondent in not being able to give evidence having regard to the nature of the case. The Respondent has not provided any written submissions for the Committee’s consideration. In any event, he is afforded the safeguard under Rule 14d of the Rules. This permits a Respondent to apply for a rehearing where the case is heard in his absence, subject to satisfying the Professional Conduct Committee that he has not had an adequate opportunity to appear before the Hearing Panel to argue his case and that it is just to do so. In those circumstances, a rehearing can be directed on such terms as may be appropriate;
6. General public interest and in particular the interests of any victims or witnesses, that a hearing should take place within a reasonable period of time to which it relates. The Committee has borne in mind that six complainants have attended this hearing to give evidence;
7. The effect of delay on the memory of witnesses.
20) The Committee has exercised the utmost care and caution in reaching its decision, and has carefully considered the overall fairness of the proceedings. In considering this application, it has balanced the potential impact on the Respondent’s livelihood and reputation in hearing the matter today in his absence, as against the public interest in proceeding with the hearing in a timely manner. Having done so, the Committee is satisfied that the Respondent has been given an adequate opportunity to make arrangements to appear before it to argue his case in person and that he has chosen to voluntary absent himself. He has not provided a sufficient reason for his absence. Taking all these factors into account, the Committee has concluded that it is fair and in the interests of justice to hear the case in his absence.
Application to hear evidence by video link
21) Ms Sheridan made an application for the evidence of Complainant 2 to be given by video link. She provided a skeleton argument in support of her application for special measures for this witness. She submitted that Complainant 2 had said that she did not wish to attend in person as she was very nervous about giving evidence before the Committee and that she was worried about seeing the Respondent and about possible repercussions.
22) The Committee noted that the witnesses’ fears could now be allayed as the Respondent had not attended the hearing and therefore, there was no prospect of her seeing him. The Committee was also informed that, if Complainant 2 was required to attend in person, she would not be able to attend until the following day.
23) The Committee, in reaching its decision, noted that the Rules do not address the issue of special measures. However, it was mindful of the need to ensure that the hearing proceeded in a fair and timely manner and that best use was made of available time. It concluded that there was now no risk of the Respondent coming into direct contact with her because of his non-attendance that would justify the need for special measures being put in place. However, to make most effective use of time, it concluded that it was reasonable for Complainant 2 to give evidence by video link and that there would be no injustice or unfairness to the Respondent in allowing the application, particularly given that he had not attended the hearing and was therefore not in a position to cross examine this witness.
Application to adduce hearsay evidence
24) Ms Sheridan made an application for the statements of Complainants 7 and 8 to be adduced by way of hearsay evidence as it was not proposed to call them to give live evidence. The Respondent had been notified in advance of the hearing that the evidence of Complainant 8 would be adduced in this way, but he was not notified of the ARB’s intention in relation to Complainant 7.
25) She submitted that the statements of Complainants 7 and 8 were admissible as hearsay evidence in line with the Civil Procedure Rules. She reminded the Committee that the Complainants’ evidence related to the discovery of negative reviews that were left for their respective businesses.
26) In referring to the case of Bonhoeffer v GMC [2011] EWHC 1585 (Admin), she submitted that there was no absolute rule entitling a Respondent to cross examine witnesses. She stated that considerations of admissibility were fact specific citing Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin), but that the balance fell in favour of admitting the statements. Reviews left under the name of Christopher Ede had been left in relation to a number of businesses. She reminded the Committee that the Respondent in his written representations did not dispute that he had a connection with either Complainant 7 or Complainant 8.
27) Ms Sheridan submitted that their evidence, whilst hearsay, was not multiple hearsay which tended to be less reliable. Both proposed witnesses had provided statements which contained a statement of truth, suggesting that they understood the importance and significance of the contents of their statements being accurate.
28) She also submitted that their respective statements were not the sole or decisive evidence in the case and that this was an important factor to take into account.
29) Finally, Ms Sheridan explained that Complainant 8 had stated at the conclusion of her statement that she was unwilling to attend the hearing. This would have been apparent to the Respondent had he looked at the statement. Not having done so, he had not objected to the statement being tendered as proposed.
30) Complainant 7, Ms Sheridan stated, contacted the ARB approximately two weeks prior to the hearing. She stated that Complainant 7 informed the ARB that because of staffing issues at work, she would be unable to attend, and that there was no quiet space for her to give evidence from, it being an open plan office. The ARB had therefore taken the decision to adopt a proportionate approach and stand her down.
31) The Committee has heard and accepted the advice of the Legally Qualified Chair who made reference to the cases of El Karout -v- The Nursing and Midwifery Council [2019] EWHC 28 (Admin), Nursing and Midwifery Council v Ogbonna [2010] EWCA Civ 1216, Thorneycroft v Nursing and Midwifery Council [2014] EWHC 1565 (Admin) and R (Bonhoeffer) v GMC [2011] EWHC 1585 (Admin).
32) Having considered the submissions made and having balanced issues of fairness to both the Respondent and the ARB, the Committee concluded that their evidence was relevant and admissible and that there was no unfairness or injustice in allowing the both the statements of Complainant 7 and Complainant 8 to be admitted as hearsay. In reaching that decision, the Committee has taken into account the following:
a) That their evidence is not the sole or decisive evidence in relation to matters of fact that need to be determined;
b) That Complainant 8 had always stated that she would be unwilling to attend the hearing. The Respondent had the opportunity to object to her statement being tendered, but has not done so;
c) The Respondent has not attended the hearing in any event, and even if Complainants 7 and 8 attended the hearing, the Respondent was not available to cross examine them;
d) The ARB had taken reasonable steps to secure Complainant 7’s attendance but had not been able to do so.
33) Having made this determination on admissibility, for the avoidance of doubt, the question of weight to be attached to the hearsay evidence remains a discrete matter to be considered at the fact finding stage.
Allegation background:
34) The Respondent is a registered Architect. However, the facts of this case do not relate to the Respondent’s provision of architectural services, but to allegations that the Respondent used pseudonyms to post a number of false and negative reviews for a variety of businesses. A total of eight complainants have supported the allegation against the Respondent.
35) Whilst the ARB has not provided direct evidence that the Respondent made the relevant posts, it is alleged that the Respondent was the common link and only connection between otherwise unconnected businesses. In addition, it being suspected that the Respondent made the relevant postings, a ‘cease and desist’ letter was sent to the Respondent after which a number of the postings were promptly removed.
36) All the factual allegations are denied. It is the Respondent’s case that the ARB cannot establish that it was he who posted the alleged false reviews, and that the ARB should prove his culpability. He claims that the allegations against him are maliciously targeted and that the complainants have “perfectly crafted” their complaints.
37) In reaching its decisions, the Committee has carefully considered the live evidence, the documentary evidence presented to it in the Report of the ARB’s Solicitor and the 116 pages of statements and exhibited documents which include screenshots of the relevant online posts. The Committee has also received a further statement of Complainant 6 and has heard the audio recording of his telephone conversation with Person A.
38) The Committee has accepted the legal advice given by the Legally Qualified Chair which is a matter of record. It has had regard to the fact that the burden of proof is on the ARB and that the civil standard applies, namely proof on the balance of probabilities. The Committee is mindful that the more serious the allegation, the more cogent should be the evidence to find it proved. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden or standard of proof applies.
39) The Committee heard live evidence from six of the Complainants. It found their evidence to be measured and consistent not only in relation to each other’s evidence, but also with the documentary evidence before the Committee. The Committee notes that the businesses in question were unconnected and that the Complainants, save for Complainants 3 and 4, did not know each other. It concluded that each of the Complainants’ evidence was credible and reliable. The Committee had no reason to conclude that their evidence was prone to either exaggeration or malice.
40) The evidence of Complaints 7 and 8 was adduced by way of hearsay evidence. The Committee was mindful that, hearsay evidence generally carries less weight than live oral evidence. However, given the consistency between their evidence as contained in their statements with the other live evidence heard, and the supporting documentation adduced, their evidence could be relied on as being credible and reliable.
41) The Respondent did not attend the hearing to give evidence but has provided written responses to the ARB. Whilst the Committee draws no adverse inference from the fact of the absence of the Respondent, the Committee is mindful that his written statements cannot be the subject to the same level of scrutiny as the ARB’s witnesses who have attended to give live evidence and whose evidence could have been challenged by cross examination had the Respondent attended. As such, the Committee attaches less weight to the statements provided by the Respondent. The Committee notes that the essence of his defence is that he did not post the relevant reviews and that the complaint against him is maliciously motivated. In relation to the removal of online posts, he submitted that it could not have been done by him as he did not have email access at the time as he was on holiday. It was, he submitted, a matter for the ARB to prove that he acted as alleged.
Findings of Fact:
42) The Committee makes the following finding of facts:
Allegation 1:
43) The Committee finds the facts proved for the following reasons.
44) The Committee heard the evidence of Complainant 1. She stated that she had a couple of dates but it became a brief platonic friendship with the Respondent from around 2009 / 2010 until 2011/ 2012. It ended when she became increasingly uncomfortable with the Respondent’s behaviour towards her. She stated that she had not had any contact with the Respondent since then.
45) She stated that at the time of the reviews, she had a limited customer facing role. She said that in 2018, a number of uncharacteristic negative online reviews for her B&B had been posted on Google, using the following names and on the following dates:
• Chris Ede in July 2018. The review stated: “I cannot believe this so called b+b has so many good reviews. It is absolutely shocking. The owners …is sarcastic [sic] rude and not helpful. Rooms are small noisy and dirty – take a look under the bed for a collection of stunning dust! AVOID.”;
• Person A in February 2018. The review stated: “Terrible. Rooms dirty.….the owner very arrogant”;
• Karen Oman in October 2018. The review stated: “Average. dirty poor quality b+b. Bathrooms are filthy!!” and;
• Jane Baker in October 2018. The review stated: “I note a variable with the owners of this low-end 3 star B+B that if someone leaves a negative review they pretend they have never stayed there!!! Well, I have stayed there and it’s dirty, poorly insulated (you can her [sic] people in the next room) and the shower was filthy! Let’s see if the owners pretend I did not stay there….then I’ll post my invoice and photos online….”.
46) Complainant 1 said, and the Committee accepts, that having searched the database, none of those named individuals had stayed at her B&B. she stated that none of the names were known to her in any other capacity. When Jane Baker was challenged online by Complainant 1’s partner in response to the posting, no further communication was received.
47) In November 2018, Complainant 1 stated that her partner received a telephone call from Complainant 7 asking if he knew the Respondent who stated that he did not. However, Complainant 1 recognised the Respondent’s name immediately and that prompted her to call Complainant 7. She subsequently looked at a number of other negative reviews that had been posted under the above names. Having done so, Complainant 1 contacted Complainant 2, Complainant 3, Complainant 5 and Complainant 8, none of whom she previously knew. She stated that they did not know who had posted the negative reviews but they confirmed that they knew the Respondent.
48) She stated that she had not had any contact for so long, that she was surprised that the Respondent would have left the reviews. She stated that the language used in the reviews was typical of the patronising and condescending tone of the language the Respondent used.
49) She stated that she was aware that Complainant 5 sent the Respondent a ‘cease and desist’ letter in November 2018, following which, a number of reviews were removed.
50) She stated that because she felt uncomfortable about what happened, she reported the matter to the police as she was concerned about what his motive might be and about his future conduct.
51) She stated that she had “less than zero motive” to make a malicious allegation against the Respondent.
52) The Committee found Complainant 1 to be a measured, credible and reliable witness. In all the circumstances, the Committee finds that the above reviews were false and posted under pseudonyms.
53) Complainant 2 also gave live evidence. She stated that she first met the Respondent in 2004 and that they dated for two to three months. She stated that after her brief relationship with the Respondent finished, he sent her a number of threatening texts which she knew came from the Respondent as she recognised his phone number. She stated that a number of false and offensive emails were also sent to her mother from the Respondent’s email address. She also stated that a false allegation was made to her employer. She assumed this false allegation was made by the Respondent because of its nature and tone, even though she conceded she could not prove that to be the case.
54) She stated that in October 2018, she received three negative reviews on her business page on Google. Two have been removed but the remaining review under the name of Karen Oman is exhibited and reads: “Terrible, cheap quality products from [Complainant 2’s] little market stall”. She stated that, because her business was small, she knew her customers by name and therefore knew that Karen Oman was not a customer of hers. She stated that she had “never done a cake for someone I didn’t know”. She stated that, prior to being contacted by other complainants, she did not know them and had never had any contact with them. When it was suggested to her that her complaint about the Respondent was malicious, she was unequivocal in stating that that was “utterly ridiculous”.
55) The Committee found Complainant 2 to be a persuasive, reliable and credible witness. In all the circumstances, the Committee found that that the review in the name of Karen Oman was false and posted under a pseudonym.
56) Complainant 3 gave evidence and stated that the Respondent was an employee of their practice in around 2007 / 2008. She stated that she did not personally know the Respondent but others in the practice had informed her that he had worked there.
57) She stated that in October 2018, she received a telephone call from Complainant 1 informing her that the practice had two negative online reviews and that a number of other businesses had also received negative reviews from the same individuals including Complainant 4 who used to work at the practice.
58) A review posted under the name of Christopher Ede stated: “RUDE, ARROGANT AND NOT HELPFUL. AVOID!!!” The review under the name Jane Baker stated: “Disgraceful attitude when you call for a quote! Apparently my work isn’t valuable enough!!”.
59) She stated that neither Christopher Ede nor Jane Baker had ever been a client of the practice.
60) Complainant 3 stated that she discovered that the Respondent had worked at the practice under an Architect, Complainant 4. Complainant 3, on looking at Complainant 4’s website, saw that he had also received negative reviews and contacted him.
61) She stated that in November 2018, Complainant 5, who she did not know prior to the reviews coming to light, contacted her to say that, following a ‘cease and desist letter’ being sent to the Respondent, the negative reviews were removed.
62) Complainant 3 made a complaint to the ARB in January 2019.
63) In response to the suggestion that the complaint may have been maliciously motivated, Complainant 3 stated that she had no previous knowledge of the other complainants and that she had not personally known the Respondent. There was no reason for her to “drag up something” when there had been no contact with the Respondent for so many years.
64) The Committee also found Complainant 3 to be a measured, credible and reliable witness. In all the circumstances, the Committee finds that the above reviews were false and posted under pseudonyms.
65) Complainant 4 stated that he worked with the Respondent at a previous practice for about two years. He stated that he was contacted by Complainant 3 in October 2018 regarding a negative review of his architect’s practice. The Committee has had sight of a copy of the review posted under the name Christopher Ede which stated: “RUDE, ARROGANT AND NOT HELPFUL. AVOID!!!”. Complainant 4 stated that Christopher Ede has never been a client of his.
66) He stated that Complainant 3 contacted him again in November 2018 advising him that her negative reviews had been removed and that, having checked his own reviews, saw that the above review had also been deleted.
67) Complainant 4 stated that, whilst he found the Respondent quite arrogant and unwilling to listen to others, he had no motive for making up an allegation against the Respondent. He stated that there had not been any animosity between himself and the Respondent.
68) The Committee also found Complainant 4 to be a measured, balanced, credible and reliable witness. In all the circumstances, the Committee finds that the review was false and posted under a pseudonym.
69) Complainant 5 stated that he employed the Respondent as an external consultant for two weeks in May 2016. He had no issues with the Respondent during that time.
70) He stated that two negative reviews were posted online regarding his architecture practice in October 2018. One was posted on the practice Facebook page under the name James Light. It stated: “Terrible service from 50.8. Avoid”. He stated that he did not know an individual called James Light and he had not been a client of his. He stated that James Light did not respond to him when challenged online about the review.
71) A second online review posted under the name Christopher Ede stated: “Disgraceful attitude when you call for a quote! My commission isn’t valuable enough”. He stated that he also did not know an individual called Christopher Ede and he had not been a client of his.
72) He stated that at the time, he did not suspect the reviews were posted by the Respondent. However, he stated that he was contacted by Complainant 3 by phone and she said that she had received negative reviews from the same person. Complainant 3 was previously unknown to Complainant 5. It then became apparent that both he and Complainant 3 knew the Respondent and that he was the common link between the poor reviews that had been posted. He confirmed that he did not know any of the other people involved in this case.
73) Complainant 5 stated that he wrote the Respondent a ‘cease and desist’ letter in November 2018, sent by email. Even though he did not receive a response to the letter, he stated that the negative reviews were removed within 24 hours. Having considered all the evidence before it, and the weight it has attached to the ARB’s witness’ evidence, it does not accept the Respondent’s assertion that the posts were not removed by him as he had no online access at the time.
74) Complainant 5 denied that his complaint against the Respondent was maliciously motivated. He stated that he had “absolutely no axe to grind against him”.
75) The Committee also found Complainant 5 to be a credible and reliable witness. In the circumstances, the Committee finds that the reviews were false and posted under pseudonyms.
76) Complainant 6 stated that the Respondent instructed his letting agency to undertake letting only services between 2014 and 2017. He stated that at the conclusion of one of the tenancies, there was a dispute about a payment to a cleaning company. The invoice was never paid by the Respondent. This brought about the end of the professional relationship between Complainant 6 and the Respondent.
77) He stated that it came to his attention that in late 2018, a number of negative online reviews had been posted, including under the name of Christopher Ede and Jane Baker. Those reviews respectively stated:
• “Terrible, arrogant, rude – especially the owner. AVOID”;
• “Pretty terrible estate agents…one of the owners, is incredibly arrogant, unhelpful and rates himself highly. Plenty of other letting agents … who deserve your money”.
78) Complainant 6 stated that there was no record of either individual having been a client of the agency.
79) Complainant 6 stated a further review was posted under the name of Person A who had been a tenant of the Respondent at the address where there had been an issue regarding the cleaning fee. Person A’s review had been left at the same time as Jane Baker’s review. Person A’s review stated: “Never bothered to turn up for a viewing. WASTE OF MY TIME”. Complainant 6 stated that the person named in this review had left the business six months before the review was left.
80) Complainant 6 stated that he called Person A, within 10 minutes of the review being left, to see if she had left the review but she informed him that she did not. An audio recording of that conversation was played to the Committee, the tone and content of which corroborates Complainant 6’s evidence.
81) In the circumstances, the Committee finds that this review was also false and posted under a pseudonym.
82) Complainant 6 subsequently made contact with Complainants 1 and 2, who he did not previously know, as negative reviews posted under the same names had been left in relation to their businesses. They confirmed that they both knew the Respondent.
83) When it was suggested to Complainant 6 that the Respondent had been maliciously targeted, he denied that he would have tried to cause an argument with the Respondent and that he had not orchestrated a targeted campaign against him.
84) The Committee found Complainant 6 to be a credible and reliable witness. In the circumstances, the Committee finds that the reviews were false and posted under pseudonyms.
85) Complainant 7 stated that she worked as a letting agent for two of the Respondent’s properties in 2009. She stated that she was contacted by Complainant 1 regarding negative online reviews and became aware that a negative review was posted under the name of Christopher Ede which stated: “Corrupt conning Low-end letting agency ‘Comfort yeah right!”…..”Rude obnoxious staff. Long queues – always understaffed”.
86) For the reasons stated earlier in this determination, the Committee considered that, notwithstanding the hearsay nature of Complainant 7’s evidence, it could be relied on as being credible and reliable.
87) The Committee also received evidence from Complainant 8. She stated that the Respondent had worked with one of the partners at another business, between 2009 and 2013. She stated that she was contacted by Complainant 3 in 2018 regarding negative online reviews and noticed that a negative review had been posted under the name of Christopher Ede which stated: “RUDE, ARROGANT AND NOT HELPFUL. AVOID!!!”.
88) For the reasons stated earlier in this determination, the Committee considered that, notwithstanding the hearsay nature of Complainant 8’s evidence, it could be relied on as being credible and reliable.
89) For the reasons set out above, the Committee finds that false reviews under pseudonyms were posted in relation to one or more of the businesses.
90) The Committee then went on to consider whether it was the Respondent who posted the false reviews under pseudonyms. In reaching its determination as to whether the ARB has proved the facts alleged to the required standard, the Committee has asked itself the following:
• Is it more likely than not that the posts were made by the Respondent who has a connection to each of the 8 otherwise unconnected businesses (three of whom happen to be Architects’ practices) and that some of the reviews were withdrawn promptly by him after having received a ‘cease and desist’ letter which made reference to referring him to the ARB, or
• Is it more likely than not that the posts were made by another individual or individuals who have a connection to each of the eight otherwise unconnected businesses and who coincidentally, nevertheless, withdrew their postings shortly after a ‘cease and desist’ letter was sent to the Respondent and not to them, or
• Is it more likely than not that the postings are simply a random coincidence?
91) Having considered all the evidence, and being mindful that there is no direct evidence that the Respondent posted the various reviews, the Committee has concluded that, on the balance of probabilities, the Respondent did post the reviews because:
1) The Respondent has a connection to each of the parties and businesses involved, and in a number of cases, the relationship did not end positively;
2) The language, tone and style of the postings were similar, making it more likely that the postings were made by the same person. A number of witnesses also stated that the tone was similar to language the Respondent had previously used. The Committee noted that the tone was also similar to the tone of the Respondent’s correspondence with the ARB;
3) The complainants, save for Complainants 3 and 4 had no previous knowledge of or dealings with each other. The Respondent was the only common link between all the complainants;
4) A number of the reviews were withdrawn shortly after the ‘cease and desist’ letter was sent to the Respondent, in which a reference was made to referring the Respondent to the ARB. The Committee noted that there was no evidence before it that the Respondent replied directly to that letter denying responsibility for the postings. The Committee has therefore concluded that it is a proper inference to draw that he withdrew the posts, and that it is highly unlikely that they would have been withdrawn by another individual(s) who had not been served with a ‘cease and desist’ letter; and
5) The Committee rejects the Respondent’s assertion that the complaints are maliciously motivated. The Committee has accepted the ARB’s witnesses’ evidence as credible and reliable, noting that several complainants had not had any contact with the Respondent for many years and had no reason to at the time the postings were made. In addition, the Committee considered that if the posts were intended to maliciously implicate the Respondent, then the posts would have identified him to directly link him to the reviews.
92) The Committee therefore finds that the Respondent posted false reviews under pseudonym(s) in relation one or more of the businesses. The Committee therefore finds the facts of this particular proved.
Allegation 2:
93) The Committee finds the facts alleged proved for the following reasons.
94) The Committee first considered whether the Respondent acted dishonestly. It has applied the test for dishonesty as set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67.
“When dishonesty is in question the fact-finding tribunal must first ascertain subjectively the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the objective standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
95) The Committee has concluded that the Respondent posted false negative reviews, using pseudonyms. In the circumstances, in applying the first limb of the Ivey test, the Committee finds that the Respondent knew that the reviews he posted did not represent genuine feedback from genuine customers and that the postings were untrue and that he used pseudonyms to conceal his true identity. The Committee finds that the Respondent knew that he was misrepresenting interactions with the various businesses. The Committee finds that ordinary decent people would consider such conduct to be dishonest.
96) The Committee therefore finds that the Respondent by acting as found proved, acted dishonestly.
97) The Committee then considered whether the Respondent’s actions found proved amounted to a lack of integrity. The meaning of ‘integrity’ was considered in the case of Wingate and another v SRA [2018] EWCA Civ 366 where it was referred to as “a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members. The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards…..Integrity connoted adherence to the ethical standards of one’s own profession. That involves more than mere honesty…..The duty of integrity does not require professional people to be paragons of virtue. In every instance, professional integrity is linked to the manner in which that particular profession professes to serve the public. .”
98) The Committee finds that the Respondent deliberately pursued a course of conduct, intentionally posting a number of false negative online reviews. This posed a patent risk of reputational damage to the businesses concerned. Three of those businesses were architectural practices, three were property letting businesses and two were businesses run by individuals with whom the Respondent had had a personal relationship.
99) The Committee finds that the Respondent by acting as found proved, acted without integrity.
100) Standard 1 of the Code states:
Honesty and Integrity
1.1 You are expected at all times to act with honesty and integrity and to avoid any actions or situations which are inconsistent with your professional obligations. This standard underpins the Code and will be taken to be required in any consideration of your conduct under any of the other standards.
101) Standard 9 of the Code states:
Maintaining the reputation of Architects
9.1 ……
9.2 You are expected to conduct yourself in a way which does not bring either yourself or the profession into disrepute……
102) In the circumstances, the Committee finds the facts of this particular proved in that the Respondent acted without integrity and dishonestly in breach of Standard 1 the Code. The Committee further finds that his conduct brought both himself and the profession into disrepute in breach of Standard 9 of the Code.
Finding on Unacceptable Professional Conduct:
103) Having found both the allegations proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC. UPC is defined as conduct which falls short of the standard required of a registered person. Any finding of UPC remains a matter for the Committee’s independent judgment.
104) In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the Legally Qualified Chair. The Committee recognises that, by virtue of Section 14(1)(a) the Act, not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an Architect.
105) The Committee recognises that any failing must be serious (Vranicki v Architects Registration Board [2007] EWHC 506 Admin) such that it would attract a degree of opprobrium or harsh criticism. The Committee has borne in mind the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions (The Queen on the Application of Dr Malcolm Noel Calhaem –v- General Medical Council [2007] EWHC 2606 (Admin). The Committee is nevertheless mindful that this case relates to conduct outside of the Respondent’s professional practice.
106) Misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as, “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”.
107) The meaning of misconduct was further considered in the case of Remedy UK v GMC [2010] EWHC 1245: “First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession…..Conduct falls into the second limb if it is dishonourable or disgraceful or attracts some kind of opprobrium; that fact may be sufficient to bring the profession of medicine into disrepute. It matters not whether such conduct is directly related to the exercise of professional skills”.
108) In considering whether the Respondent’s conduct amounts to UPC, the Committee has also considered the case of R (on the application of Pitt and Tyas) v General Pharmaceutical Council [2017] EWHC 809 (Admin). This case established that behaviour remote from a professional practice if sufficiently disgraceful, can still amount to “serious professional misconduct”. In deciding whether it does, the Committee has considered the potential damage caused by the Respondent’s conduct to the public reputation of the profession.
109) The Committee has taken into account all the evidence before it together with both Ms Sheridan’s submissions and the Respondent’s written submissions.
110) Compliance with Standard 1 goes to the heart of what it means to be a professional. Dishonesty constitutes a breach of a fundamental tenet of the profession: GMC v Igwilo [2016] EWHC 524. In considering the level of seriousness of dishonesty, the Committee had regard to the case of Patel v GMC Privy Council Appeal No.48 of 2002, which determined that dishonesty was to be considered as being at the top end of the spectrum of the gravity of misconduct. The Committee is mindful that the nature of the dishonesty found proved should be contextualised. However, failing to act honestly and with integrity, particularly in circumstances where the Respondent has deliberately and dishonestly acted in such a way that gives rise to the potential for damaging their professional reputation, amounts to a serious falling short of an Architect’s core obligations. The Committee has therefore concluded that the Respondent’s dishonesty falls at the higher end of the seriousness spectrum.
111) The Committee therefore concluded that the matters found proved and the corresponding breaches of the Code, albeit that they did not occur in the course of the Respondent’s architectural practice, represent serious departures from the standard expected of a registered Architect. In the Committee’s judgment, the deliberate dishonest posting of false reviews across a range of businesses, would be considered deplorable by fellow members of the profession and members of the public and would attract a sufficient level of harsh criticism such that the Respondent’s failings are sufficiently serious to amount to UPC.
112) The Committee therefore finds that the facts found proved amount to UPC.
Sanction:
113) Ms Sheridan informed the Committee that there are no previous adverse regulatory findings recorded against the Respondent. She submitted that the Committee should have regard to the ARB’s sanctions guidance and identified the following factors that she asked the Committee to take into account in considering which was the appropriate sanction to impose:
a) The Respondent’s actions were deliberate, repeated, and continued over a period of several months;
b) The Respondent attempted to conceal his identity;
c) The Respondent attempted to cause reputational damage to a number of businesses; and
d) The serious nature of the dishonesty.
114) The Committee has not received any submissions in mitigation from the Respondent.
115) The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the ARB, and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Legally Qualified Chair which again, is a matter of record. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the ARB’s sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case and the Committee has exercised its own independent judgement.
116) In considering the appropriate sanction in a case involving dishonesty, the Committee has taken care to balance all relevant issues. In doing so, it has noted that: “The effect of dishonesty by professionals, as far as public confidence in the public is concerned….is a primary consideration for a Fitness to Practise panel” (Siddiqui v GMC [2013] EWHC 1883). It was held in the case of the case of PSA v Nursing and Midwifery Council, Mr D Wilson [2015] EWHC 1887 (Admin) that the public interest outweighs the Registrant’s interests, and the effect of a sanction on a registrant was very much of secondary importance. In that case, it was said that: “The overriding factor … was the public interest in maintaining the reputation of the profession. The [NMC] and the public are entitled to the highest standards of honesty and integrity from the Registrants…”. The Committee has borne in mind that there is a spectrum of seriousness of dishonesty (Watters v NMC [2017] EWHC 1888 (Admin) and Lusinga v NMC [2017] EWHC 1458 (Admin)), and has concluded that the Respondent’s dishonesty lies at the higher end of the scale. The Committee has also borne in mind Bolton v Law Society [1994] 1 WLR 512 in reminding itself in that the collective reputation of the profession is more important than the fortunes of the individual and that expulsion from the profession is appropriate for serious lapses.
117) Having taken all the evidence and submissions before it into account, the Committee has identified the following aggravating factors:
- The Respondent’s dishonesty was deliberate, repeated and intended to cause reputational harm to eight businesses and was demonstrative of a serious lack of integrity. The negative postings continued over a period of approximately 10 months and only stopped when he was notified of possible action being taken against him. Clients must be able to have trust and confidence in Architects. That is an essential element of what it means to be a professional. Given the circumstances of this case, the Committee considers the Respondent’s dishonesty and lack of integrity to be at the more serious end of the scale. The Committee considered this to be the most serious aggravating factor;
- The Respondent’s conduct was menacing and intimidatory and was directed towards other architectural practices and two women with whom he had had a relationship;
- In considering insight, the Committee notes the lack of any demonstrable evidence of insight in relation to his personal responsibility for his actions as well as how they impact on the reputation of the profession. In the circumstances, the Committee has no assurance that the Respondent’s UPC would not be repeated and considers the risk of recurrence to be high;
- The Respondent had taken active steps to prevent the ARB contacting him to investigate the complaint and to undertake its regulatory function by blocking emails from it, thereby attempting to frustrate the regulatory process. The tone of his correspondence with ARB during the investigation was obstructive, confrontational and discourteous.
118) The Committee has identified the following mitigating factors:
- that the Respondent has no adverse regulatory history;
- the Respondent promptly removed a number, albeit not all, of the posts after receiving the ‘cease and desist’ letter.
119) The Committee notes that the matters found proved are serious to the extent that Mr Guy’s failings diminish both his reputation, and that of the profession generally. Honesty is a core quality that any member of the public should be able to expect from a professional. The Committee has therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
120) The Committee first considered whether to impose a reprimand. The Committee considered that such a sanction was neither appropriate nor proportionate given that it did not consider the Respondent’s UPC to be at the lower end of the scale given the aggravating factors identified.
121) The Committee then considered whether to impose a penalty order and also concluded that such a sanction was neither appropriate nor proportionate to protect the public or the reputation of the profession. The UPC found proved is too serious for the imposition of a penalty order.
122) The Committee next considered whether a suspension order was appropriate. Having carefully considered the Sanctions Guidelines, the Committee considered that such a sanction would be insufficient to protect the public or the reputation of the profession. Given the breadth of his failings, the identified risk of repetition, the serious dishonesty and lack of integrity, and the lack of demonstrable meaningful insight, the Committee has concluded that the Respondent has entrenched integrity and attitudinal issues. These failings, the Committee has concluded, are fundamentally incompatible with continuing to be an Architect.
123) The Committee was mindful that imposing a period of suspension would allow the Respondent to resume practice automatically after the end of the period of suspension. This would occur in circumstances where the Respondent had not demonstrated insight into his failings. The Committee therefore concluded that the risk to the public and the public interest remained significant if he were allowed to return to practice without satisfying his regulator that he had adequately addressed his failings and was no longer at risk of repeating his behaviour.
124) The Committee therefore concluded that the matters found proved are so serious that only erasure from the register would protect the public and / or the reputation of the profession. The Committee therefore directs that the Respondent’s name be erased from the register. The Committee recommends that the Respondent shall be entitled to apply for restoration to the register in no less than two years’ time which the Committee considers proportionate in the circumstances.
125) This would mean that should the Respondent wish to return to practise as an Architect, he would have to demonstrate that he is fit to do so by satisfying his regulator that he had fully addressed his behaviour that gave rise to the findings of this Committee, prior to resuming practice as an Architect. This, the Committee concluded, was an essential safeguard to ensure that the reputation of the profession would be upheld and that the public would be protected. If the Committee imposed a suspension order, this would not be possible and hence, such a sanction would not be appropriate.
126) That concludes this determination.
