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Mr Jonathan Colin Muirhead

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Jonathan Colin Muirhead (076125G)

Held as a video conference

On 

29- 30 March 2021 and 28 May 2021

———-

Present 

Emma Boothroyd (Chair)

 David Kann (PCC Architect Member)

Alastair Cannon (PCC Lay Member)

———–

In this case, ARB is represented by Ms Kathryn Sheridan of Kingsley Napley LLP.

Mr Muirhead attended only the first and second day of the hearing and was not legally represented.

The Professional Conduct Committee (“PCC”) found Mr Muirhead guilty of:having been convicted of the following criminal offences, other than offences which have no material relevance to his fitness to practise as an architect in that he was convicted on;
a) 30 August 2018 of Assault by Beating;
b) 4 December 2018 of Drink Driving;
c) 25 February 2019 of Assault by Beating;
d) 22 January 2020 of two counts of Assault by Beating;
e) 22 January 2020 of two counts of Assault by Beating of an Emergency Worker;
f) 22 January 2020 of failure to surrender to Custody at the Appointed Time.2) Unacceptable Professional Conduct (‘UPC’) in that:
a) The Respondent failed to inform the ARB of the criminal convictions as set out in particular 1 within 28 days of conviction, in contravention of Standard 9.2 of the 2017 Code of Conduct;
b) The Respondent’s actions at particular 2(a) were dishonest and/or lacked integrity.and that by doing so, he acted in breach of Standards of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).The sanction imposed is erasure.
  1. This matter initially came before this Committee on 29 March 2021. At that hearing, ARB opened its case and set out the relevant background. Following a query raised by the Respondent about the completion of the online form, before it closed its case, ARB was granted permission to obtain a statement from Ms Onadeko, an ARB Officer familiar with the online registration process. The proceedings were adjourned until the afternoon of 29 March 2021 for the statement to be obtained. The Respondent did not return to the hearing on the afternoon of the 29 March 2021 and the Committee decided to adjourn until the morning of 30 March 2021.
  1. It was clear to the Committee at the hearing on 30 March 2021 that the Respondent was not fit to participate in the hearing. He was aggressive, his speech was slurred and he had difficulty focussing his remarks. It was decided to adjourn the proceedings to 28 May 2021 to enable the Respondent to participate.
  1. The Respondent did not attend the reconvened hearing on 28 May 2021.

Preliminary Matter

  1. As a preliminary issue, the Committee considered whether to further adjourn matters or proceed in the absence of the Respondent. The Committee took into account the proceeding in absence bundle submitted by ARB. In making that decision the Committee took account of the representations made by Ms Sheridan which in summary stated that the rules on service had been complied with and there was no compelling reason to adjourn proceedings and there was a public interest in matters proceeding. Ms Sheridan referred to the case of R v Hayward & Jones [2003] 1 AC HL and  GMC v Adeogba and Visvardis and set out the factors to which the Committee should have regard. She submitted that there was no indication that the Respondent would attend any adjourned hearing and an adjournment would serve no useful purpose.
  1. The Committee accepted the advice of the Chair and had regard to the relevant factors as outlined in the case of R v Hayward, Jones & Purvis in the Court of Appeal [2001] EWCA Crim 168 and approved in the House of Lords and also the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162.
  1. The Committee noted that an email explaining the hearing would reconvene on 28 May 2021 was sent to the Respondent on 6 April 2021. The Respondent acknowledged that email on 7 April 2021. On 21 May 2021 the Respondent was provided with the Zoom details to enable him to access the hearing. The Respondent responded to that email on the same day and stated, “I am sorry but I will not be attending the hearing on May 28th 2021 for a number of reasons that I am happy to outline if requested/required.” Ms Swanston on behalf of the ARB replied to the Respondent that it was his choice whether or not to attend the hearing, but reasonable adjustments could be made if required. No response was received and the Respondent did not attend.
  1. The Committee was satisfied that the Respondent has been given adequate notice of the hearing. Indeed, the Respondent has confirmed that he is aware of the arrangements for the hearing but does not intend to participate.
  1. The Committee took into account all of the information put forward by the Respondent and the submissions made by Ms Sheridan on behalf of ARB. The Committee has exercised great care and caution in reaching its decision and has carefully considered the overall fairness of the proceedings. The Committee was satisfied that the Respondent has been given an adequate opportunity to appear before the Committee to argue his case and that he had chosen not to do so. He was aware of the hearing and had chosen to voluntarily absent himself. He had provided a reply to ARB at the outset of the investigation setting out his position which the Committee could take into account. There was no realistic prospect that the Respondent would attend any adjourned hearing and the Committee could identify no good reason to adjourn. This matter had already been adjourned once to enable the Respondent to participate and any further delay or adjournment would serve no useful purpose. The allegations against the Respondent are serious and the Committee determined it is in the public interest that they are dealt with expeditiously.
  1. The Respondent has not requested an adjournment and there is no reason to suppose he will attend at any future hearing. Although there may be some disadvantage to the Respondent if he is unable to present his case in person, he has been made aware and nevertheless chosen not to attend. In balancing the interests of the Respondent against the public interest in the expeditious disposal of matters it considered that it was fair and proportionate to proceed in the absence of the Respondent.

Allegation

The Respondent faces the following allegations:

  1. The Respondent has been convicted of criminal offences, other than offences which have no material relevance to his fitness to practise as an architect; and,
  2. Unacceptable Professional Conduct (UPC)

The particulars relied upon in support of the allegations are as follows:

1) He has been convicted of criminal offences other than offences which have no material relevance to his fitness to practise as an Architect in that he was convicted on:

a) 30 August 2018 of Assault by Beating; 

b) 4 December 2018 of Drink Driving;

c) 25 February 2019 of Assault by Beating; 

d) 22 January 2020 of two counts of Assault by Beating;

e) 22 January 2020 of two counts of Assault by Beating of an Emergency Worker;

f) 22 January 2020 of  failure to surrender to Custody at the Appointed Time.

2) He is guilty of Unacceptable Professional Conduct (‘UPC’) in that:

a) The Respondent failed to inform the ARB of the criminal convictions as set out in particular 1 within 28 days of conviction, in contravention of Standard 9.2 of the 2017 Code of Conduct;

b) The Respondent’s actions at particular 2(a) were dishonest and/or lacked integrity.

  1. ARB brings allegation 1 pursuant to the Professional Conduct Committee’s jurisdiction to make a disciplinary order under Section 15(1)(b) of the Architects Act 1997 (“the Act”). Such an order can be made where an architect has been convicted of a criminal offence “other than an offence which has no material relevance to the architect’s fitness to practise”. This Committee recognises that this is a matter for the Committee’s discretion and that it is open to this Committee to make no order.
  1. At the outset of the proceedings the Respondent accepted the facts of the convictions but did not accept that any of them had any material relevance to his fitness to practise as an architect. He contended that these were personal matters and not relevant to his work.
  1. The Respondent further admitted that he had not declared the convictions as required within 28 days but denied that this amounted to UPC as he never had any intention to mislead anyone.

Background

  1. The Respondent is a registered architect. He was first admitted to the ARB register on 7 January 2010 and remained on the register until 6 January 2014 when he was removed for non-payment of fees. He applied for re-instatement to the register, which was approved on 21 January 2014. The Respondent remained on the register until 6 January 2020 when he was again removed for non-payment of fees.
  1. On 30 January 2020, the Respondent applied online for re-instatement to the register. Within that application when asked “Have you ever been convicted of a criminal offence?” the Respondent declared the following, “30/08/18 – Sentenced for Battery 4/12/18 – Sentenced for a drink driving charge ]16/01/19 – Sentenced for Battery.” (sic).
  1. It is alleged by ARB that these matters were not declared within 28 days of the conviction as required by Standard 9.2. The first time that ARB became aware of these convictions was when they were declared on 30 January 2020.
  1. ARB admitted the Respondent to the register and undertook an investigation of the declared convictions. It further came to light that at the time of completing the online form the Respondent had been convicted of a further three offences on 22 January 2020. These were two counts of Assault by Beating, two counts of Assault by Beating of an Emergency Worker and a Failure to surrender to Custody at the Appointed Time. The Respondent was sentenced for these offences on 16 March 2020.
  1. The background to the convictions is that on 30 August 2018 the Respondent was convicted of assault by beating and was fined £225 and directed to pay £150 compensation, £30 victim surcharge and £85 costs. The Respondent had assaulted his mother’s neighbour by repeatedly kicking him after his mother had run into the neighbour’s house for help following an argument with the Respondent. 
  1. On 4 December 2018 the Respondent was convicted of drink driving after being found by the police slumped over the wheel of his mother’s car at 16:21. The Respondent’s mother had contacted the police and alerted them to the theft of her car. The Respondent admitted he had drunk a litre and a half of vodka and tested over 3 times the legal limit to drive. The Respondent was disqualified from driving for 26 months and sentenced to a Community Order with an unpaid work requirement. He was fined £440 and ordered to pay a victim surcharge of £44 and costs of £85.
  1. On 25 February 2019 the Respondent was convicted of assault by beating following an assault on a ticket inspector at Kings Cross Railway station. The inspector had asked to see the Respondent’s ticket and the Respondent had poked him in the chest and used abusive language towards him. The Respondent was sentenced to a Community order with an unpaid work requirement and ordered to pay compensation of £100 together with a victim surcharge of £85 and costs of £85.
  1. On 22 January 2020 the Respondent was convicted of two counts of assault by beating, two counts of assault by beating of an emergency worker and a failure to surrender at the appointed time. The Respondent had assaulted two train workers after he locked himself in a toilet on a train. The train staff called the police and the Respondent was escorted off the train and into custody. Whilst being transported the Respondent tried to open the police car door and assaulted the police officer when he tried to restrain him. The Respondent was sentenced to six months imprisonment for the assaults against the police officers and three months imprisonment for the assaults against the train staff to run consecutively making a total of nine months immediate custody. No separate penalty for the failure to surrender was imposed.  
  1. In his written representations, the Respondent made reference to his health having a direct impact on the offending.

Decision on Allegation 1

  1. In reaching its findings, the Committee has carefully considered the documentary evidence presented to it in the Reports of ARB’s Solicitor together with the documents exhibited to them, including the Respondent’s correspondence with ARB. It has taken account of the statement of Ms Onadeko. The Committee has carefully considered the sentencing remarks for the January 2020 convictions.
  1. The Committee finds the convictions proved by virtue of the Respondent’s admission and also having had sight of the memorandum of convictions. The Respondent does not dispute the factual matrix of any of the convictions.
  1. The Committee then went on to consider whether the convictions were 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. In doing so, it has taken into account all the evidence and the submissions of Ms Sheridan and the representations of the Respondent. The Committee was mindful that the Respondent has not given live evidence. Ms Sheridan submitted that the convictions met the threshold under Section 15(1)(b) of the Architects Act.
  1. She submitted that the Respondent’s convictions are material as they call into question his fitness to practise because of the nature and seriousness of offending which demonstrated violence and a disregard for the safety of others. Ms Sheridan submitted that the public would be shocked at the Respondent’s behaviour and the escalating nature of the offending. Ms Sheridan submitted that this therefore brings the profession into disrepute. She reminded the Committee that the Respondent’s actions merited a custodial sentence of six months which is indicative of its seriousness. Furthermore, the nature of the offending demonstrates conduct which has caused considerable distress to members of the public, transport workers and police officers.
  1. The Respondent denied that the convictions are materially relevant to his fitness to practise. He stated he is passionate about architecture and these matters did not amount to a lack of integrity. He also stated that he had disclosed his offending.
  1. In reaching its decision, the Committee has heard and accepted the advice of the Legally Qualified Chair and has also borne in mind the contents of Standards 1 and 9 of the Architects Code, Standards of Professional Conduct and Practice 2017 (“the Code”).
  1. Standard 1 of the Code states:

“Honesty and Integrity

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.”

  1. Standard 9 of the Code states

“Maintaining the reputation of architects”:

9.2 “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”.

  1. The Committee has considered ARB’s submissions that the Respondent’s conduct amounts to a lack of integrity. The meaning of integrity was considered in the Court of Appeal in the cases of Wingate, Evans and Malins 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 professions professes to serve the public….”

There is no requirement that a Respondent must appreciate subjectively that his conduct lacks integrity.

  1. Having considered all the circumstances of this case, and notwithstanding the Respondent’s health issues, the Committee considers that the Respondent’s convictions are demonstrative of a lack of integrity and amounts to a breach of standard 1.
  1. The Committee concluded that the Respondent’s conduct also brings the profession into disrepute and amounts to a breach of Standard 9 of the Code. Compliance with the law is a fundamental obligation of a professional architect, and the Respondent has been convicted of a number of offences involving violence. The convictions in January 2020 were considered sufficiently serious for a significant sentence of imprisonment to be imposed by the court, which in the Committee’s view, brings the profession into disrepute.
  1. In all the circumstances, the Committee therefore finds that the Respondent has been convicted of a criminal offence, other than an offence which has no material relevance to his fitness to practise as an architect.

Decision on Allegation 2 a) – Admitted and Found Proved

  1. The Committee took into account the Respondent’s admissions. In addition, it was clear from the face of the documentary evidence that the Respondent had not disclosed any of his convictions to ARB prior to 30 January 2020 and he did not at any stage disclose the convictions of 22 January 2020 to ARB.

Decision on Allegation 2b) – Found Proved

  1. The Committee noted the Respondent’s comments that he had not intended to mislead ARB at any stage. It first considered the Respondent’s state of mind during the failure to disclose the convictions. The Committee considered that it may have been an oversight not to disclose the convictions obtained in 2018 and 2019 within 28 days as required. During this time it was clear to the Committee that the Respondent had not completed any forms and had renewed his registration automatically. The Committee noted that the Respondent was clearly going through a difficult period and was not working.
  1. However, at the point of completing the form on 30 January 2020, seeking re-instatement to the Register, the Respondent must have been acutely aware of his convictions on 22 January 2020. The Respondent’s choice of words in response to the question “Have you been ever been convicted of a criminal offence?” was to list the offences for which he had been sentenced and thereby leaving out the 22 January offences for which he was awaiting sentence. This, in the Committee’s view demonstrated that the Respondent deliberately chose to answer the question in a misleading way and leave out any reference to his recent convictions.
  1. The Committee does not consider it is credible that the Respondent answered that question truthfully and to the best of his ability. The word conviction is plain. The Respondent chose to omit any reference to his recent convictions despite knowing that he had been convicted as recently as 22 January 2020.  The Committee considered that the likely explanation is that the Respondent was seeking to hide the fact of his most recent convictions from ARB given their serious nature.
  1. The Committee considered that this conduct would be considered dishonest by the standards of ordinary decent people. Further it considered that this dishonest conduct also amounted to a lack of integrity.

Decision on UPC

  1. In deciding whether the facts found proved amount to UPC the Committee had regard to Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee 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….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.
  1. The Committee considered that the deliberate and dishonest failure to declare material information to his professional regulator was extremely serious and undermined the integrity of professional regulation. In the Committee’s view, the Respondent’s conduct constituted a breach of Standards 1.1 and 9.4 of the 2017 Code. The Committee has found that the respondent did not act with honesty and integrity and sought to mislead ARB about the nature and extent of his criminal offending.
  1. The Committee took into account its findings in relation to honesty and integrity and considered that the Respondent’s conduct was a significant falling short of the standards required of an architect. Members of the public and the profession would be shocked that an architect had misled his regulator.
  1. It is the Committee’s finding that the facts found proved and the corresponding breaches of the Code are serious and adversely impact both on the reputation of the architect and the profession generally. They represent a standard of conduct falling significantly and materially below the standard expected of a registered architect.
  1. In all the circumstances and for the reasons set out above, the Committee finds that the Respondent’s conduct does amount to unacceptable professional conduct.

Sanction 

  1. Ms Sheridan referred the Committee to the Sanctions Guidance and the approach to be taken at this stage of the process. She referred to the professional reputational issues resulting from the Respondent’s conduct, the fact that the convictions were for serious matters involving violence against members of the public and public servants. She also reminded the Committee of its finding that the Respondent had been dishonest with his regulator. Ms Sheridan submitted that the Respondent had demonstrated no insight or remorse. 
  1. 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. 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 Sanctions Guidance and the need to act proportionately, taking into account all the aggravating and mitigating factors identified in this case. 
  1. The Committee was also mindful of the principle derived from the case of Bolton v Law Society [1994] 1 WLR 512 in that the collective reputation of the profession is more important than the fortunes of the individual member and that expulsion from the profession was appropriate for serious lapses.
  1. In reaching its decision, the Committee has identified the following aggravating factors;
  1. that the convictions were numerous and demonstrated an escalating pattern of behaviour between 2018 and 2020;
  2. the Respondent’s convictions involved violence against individuals and a reckless disregard for the safety of others in respect of the drink driving matter;
  3. the Respondent has demonstrated no remorse or insight; 
  1. The Committee has taken into account the following mitigating factors:
  1. the Respondent does not have an adverse regulatory history;
  2. the Respondent has been suffering from health issues.
  1. The Committee has borne in mind that the matters before it stem from his professional practice as an architect. The Committee is also mindful that a sentence from a criminal court is not necessarily a reliable guide to the appropriate sanction to impose bearing in mind the need within a regulatory context to ensure the maintenance of public confidence in the profession. In addition, the Respondent would, in the course of his work as an architect, come into contact with members of the public. It is also of fundamental importance that an architect can be trusted to provide full and frank information when required by his regulator.
  1. In the circumstances, the Committee considers that a sanction is necessary to protect the public. In addition, 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 interest. It has considered the options available in ascending order of severity.
  1. It first considered whether to impose a reprimand and has concluded that, in all the circumstances, this would not be appropriate to protect the public interest given the seriousness of the matters found proved. Similarly, the Committee considers a penalty order to be inappropriate for the same reason.
  1. The Committee then considered whether to impose a suspension order. The Committee noted that the Respondent’s 2020 convictions were for serious offences attracting an immediate custodial sentence of nine months. The Committee was mindful that imposing a suspension order would allow the Respondent to resume practice automatically after the end of the period of suspension in accordance with section 17 of the Act. This would occur irrespective of the Respondent’s health at that time and irrespective of the risk of the Respondent repeating his offending behaviour. This is, in the Committee’s view, particularly relevant because there is neither any evidence before the Committee that the Respondent no longer suffers from his health issues nor is there any evidence regarding the likelihood of relapse. 
  1. The Committee also considered that the seriousness of the dishonesty found proved called into question the suitability of the Respondent to continue to be an architect. 
  1. The Committee therefore considered that the conviction and the UPC found proved 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. 
  1. By reason of section 18 of the Act, the Respondent’s name cannot be re-entered in the Architects Register unless ARB so directs. 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 convictions. In addition, the Respondent would have to demonstrate sufficient insight into the impact and consequences of his dishonest conduct.
  1. The Committee concluded that this was an essential safeguard to ensure that the reputation of the profession would be upheld. If the Committee imposed a suspension order, this safeguard would not be available and therefore such a sanction would not be appropriate.
  1. The Committee directs that 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. Should the Respondent wish to apply for re-entry to the register, it may assist him to have up to date medical reports available and any other evidence he may consider appropriate that can provide some reassurance to ARB that his health issues have been sufficiently addressed, such that it can be satisfied that the risks identified have been mitigated, and he has insight into his actions, so that he can safely be readmitted to the profession. 
  1. That concludes this determination.