Mr David McSwiney
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr David Anthony Mark McSwiney 055408A
Held on 20 September 2018
Architects Registration Board
8 Weymouth Street
Julian Weinberg (Chair)
Judy Carr (PCC Architect Member)
Martin Pike (PCC Lay Member)
Fiona Barnett (Clerk)
In this case, the Board is represented by Ms Nicola Hill of Kingsley Napley.
Mr McSwiney has not attended this hearing but is legally represented by Mr Millward of Josiah Hincks Solicitors.
The sanction imposed is erasure.
1. There is one allegation in that the Respondent:
I. was convicted of a criminal offence other than an offence which has no material relevance to his fitness to practise as an architect in that he was convicted on 28 April 2014 of committing an act outraging public decency by behaving in an indecent manner, namely by exposing his genitals contrary to common law.
2. At the start of the hearing, Mr Millward made an application on behalf of the Respondent that matters relating to the Respondent’s health should be dealt with in private. The application was not opposed by Ms Hill. The Committee has heard and accepted the advice of the Clerk and has considered Rule 18a of the Professional Conduct Committee Rules. Having done so, the Committee is satisfied that it is in the interest of justice that those aspects of the cases dealing with the Respondent’s health should be heard in private.
3. The Respondent was convicted after having entered a guilty plea at Leicester Magistrates Court. He was sentenced by the same court on 12 June 2014 when the following sentence was imposed:
I. a 12 month community order with a supervision requirement;
II. that he carry out 100 hours of unpaid work;
III. pay compensation, a victim surcharge and costs totalling £245.
4. Being a case heard in the Magistrates Court, no sentencing remarks are available.
5. This Committee does not intend to rehearse the full facts of the case that gave rise to the conviction, save to say that the matters relate to the Respondent exposing himself whilst in his vehicle which was witnessed by a young female, then aged 6 who was in a nearby car. Following his conviction, the Respondent failed to report the matter to the ARB as required by standard 9.2 of the Architects Code, stating that he did not realise that he had to do so, although the Committee is mindful that this does not form part of the allegation.
6. In reaching its findings, the Committee has carefully considered the documentary evidence presented to it in the Reports of the Board’s Solicitor together with the 19 pages of documents exhibited to them, together with the documents provided by the defence which includes the Respondent’s resignation letter, a medical report and a reference.
7. The Committee finds the conviction proved by virtue of the Respondent’s admission and also as a result having had sight of the memorandum of conviction. The Committee notes that, in his response to the allegation to the Board dated 1 December 2017, that he stated:
“The incident involved indecent exposure on my part, which was regrettably witnessed by a family in a car…..It was not a deliberately targeted act….It was…recommended to me that I seek professional help to cope with the resulting personal issues and anxiety I was suffering. I did all as recommended and although it took some time, I eventually moved on and continued with both work and family life after a very regrettable incident……I am just sorry that I did not think at the time to notify you. Rightly or wrongly, my state of mind at the time was one of survival with family and career.”
8. The Committee then went on to consider whether the conviction was for a matter other than for an offence which has no material relevance to the Respondent’s fitness to practise. This is a matter for the Committee’s judgment even though it is accepted by Mr Millward. In doing so, it has taken into account all the evidence and
the submissions of Ms Hill and Mr Millward. Ms Hill submitted that the fact of the conviction met the threshold under Section 15(1)(a) of the Architects Act. She submitted that the Respondent’s conviction is serious because it calls into question his fitness to practise by reason of the age of the victim and because of the nature and seriousness of it and therefore brings the profession into disrepute. As such, his conviction is materially relevant to his fitness to practise.
9. Mr Millward accepted on the Respondent’s behalf that the conviction is materially relevant to the Respondent’s fitness to practise.
10. In reaching its decision, the Committee has also borne in mind the contents of Standard 9.2 of the Architects Code, Standards of Professional Conduct and Practice 2010 in that:
“You are expected to conduct yourself in a way which does not bring either yourself or the profession into disrepute. If you find yourself in a position where you know that you have fallen short of these standards, or that your conduct could reflect badly on the profession, you are expected to report the matter to the Board. For example, you should notify the Registrar within 28 days if you:
are convicted of a criminal offence;
The above are examples of acts which may be examined in order to ascertain whether they disclose a wilful disregard of your responsibilities or a lack of integrity, however this list is not exhaustive”.
11. The Committee has also considered the Board’s submissions that the Respondent’s conduct amounts to a lack of integrity. The Committee notes that this is accepted by the Respondent. It has heard and accepted the advice of the Clerk. Having done so, the Committee considers that the Respondent’s conviction is more appropriately categorised as amounting to a breach of Standard 9 of the Code, rather than Standard 1. Compliance with the law is a fundamental obligation of a professional architect, and the Respondent has been convicted of an offence of a sexual nature where the victim was a young female. This was considered sufficiently serious for a community order to be imposed by the court, which in the Committee’s view, brings the profession into disrepute.
12. In all the circumstances, the Committee therefore finds that the matter for which the Respondent was convicted is materially relevant to the Respondent’s fitness to practise.
13. The Committee then went on to consider whether a disciplinary order is necessary and has concluded, given the seriousness of the matters referred to above, that it is. It has considered them in ascending order of severity.
14. 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 Clerk. It has borne in mind that the purpose of imposing a disciplinary order is not to punish an architect for a second time for the same offence, but to protect the public and maintain the collective reputation of the profession. It has taken into account the Respondent’s interests, the indicative sanctions guidelines and the need to act proportionately, taking into account all the aggravating and mitigating factors in this case.
15. The Committee has taken into account the following mitigating factors:
I. the Respondent is otherwise a man of previous good character with no known adverse regulatory history in his 29 year career;
II. he has engaged in these proceedings;
III. there has been no repetition of his behaviour that brought him before the courts.
16. The Committee has also taken into account the contents of a report dated 5 September 2018 from his GP, although the report does not state that the health matters referred to existed at the time of the incident giving rise to his conviction or the extent to which it may have contributed to his behaviour. However, the Committee accepts Mr Millward’s submission that the Respondent sought to subsequently address his behaviour to ensure that it would not be repeated;
17. The Respondent has provided a supporting reference.
18. The Committee has identified the following aggravating factors;
I. That the conviction related to an offence of outraging public decency, the victim being a 6 year old female. The Committee considers these factors to be particularly relevant to the nature of any sanction being imposed given the Committee’s need to protect the public interest;
II. That the Respondent did not report the conviction to the Board as required.
19. Whilst the Committee has borne in mind that the matters before it do not directly relate to his professional practice, the Committee nevertheless considers that a sanction is necessary to protect the public in that the Respondent would, in the course of his work as an architect, come into contact with members of the public. Additionally, in the light of the aggravating factors outlined above, the Committee finds that the matters are sufficiently serious for a sanction to be imposed to protect the public and the wider public interest.
20. The Committee has also considered the Respondent’s statement dated 4 September 2018 in which he stated that he wishes to resign from ARB and no longer wishes to work as an Architect, but has started a new career in furniture manufacturing. However, the Committee considered that it would not serve the public, or the wider public interest, if an Architect could avoid scrutiny in some way or another by communicating an intention not to practise. There is a clear distinction between intending not to practise, and being fit to do so.
21. It first considered whether to impose a reprimand and has concluded that, given the serious nature of the conviction, this would be a wholly inappropriate sanction to protect the public interest. Similarly, the Committee considers a penalty order to be inappropriate for the same reason.
22. The Committee then considered whether to impose a suspension order. Noting that the Respondent’s conviction was for a serious offence, the Committee was mindful that imposing a suspension would allow the Respondent to resume practice automatically after the end of the period of suspension. Notwithstanding the positive reference provided on his behalf, the Committee nevertheless considers that the conviction is sufficiently serious that a suspension order would not be the appropriate and proportionate order to impose and that only an erasure order would meet the public interest, which order the Committee therefore imposes. 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 his conviction, 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.
23. The Respondent is not eligible to apply for re-entry to the profession until after the expiry of two years from the date of this order.
24. That concludes this determination.