THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

JUSTIN FRANCIS ROONEY (073550G)

Held on 

31 October – 3 November 2022 

By Video Conference

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Present:

Andrew G Webster KC (Chair)
David Kann (PCC Architect Member)
Rachel Childs (PCC Lay Member)

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The Architects Registration Board (“the ARB”) was represented by Ms Kathryn Sheridan of Kingsley Napley LLP (“the Presenter”).

Mr Justin Rooney (“the Registered Person”) did not attend the Hearing and was not legally represented.

Allegations

1. The Charge against the Registered Person is that he is guilty of UPC. 

2. The particulars alleged in support of the charge are:

1. On various dates between 10 November 2021 and 24 November 2021, the Registered Person made a series of offensive and/or anti-Semitic:
   a) Comments; and/or
   b) Gestures
2. (2) On various unknown dates, the Registered Person made a series of inappropriate and/or offensive and/or anti-Semitic public posts on his Instagram profile.

3. The Committee noted the descriptor “anti-Semitic” is itself the subject of dispute as to whether it or the descriptor “antisemitic” is more appropriate to describe a hostility or discrimination towards Jewish people. The Committee approach the allegation on the basis that the descriptor used is intended to convey that meaning.

Background

4. The Charge comes before the Committee further to its jurisdiction under the Architects Act 1997, sections 14(3) and 15(1)(a) to determine whether an architect is guilty of UPC; and if so, to determine whether a disciplinary order ought to made in consequence thereof; and if so, what order should be imposed.

5. In or about November 2021, the Registered Person was employed by GRID Architects Ltd, London (“GRID”) as a temporary Architect through an agency. On 5 December 2021, GRID submitted a complaint to the ARB in respect of the Registered Person’s conduct towards fellow members of staff whilst employed by the company. The ARB undertook enquiries. A report dated 16 June 2022 was subsequently presented to the Committee.

Non-appearance by the Registered Person: Proceeding in Absence

6. The Registered Person was neither present nor represented at the Hearing. The Committee had regard to the Notice of Hearing documentation sent to the Registered Person on 1 September 2022 by post and by email. The Committee noted on 12 October 2022 the Registered Person submitted two letters by email to the ARB. In the first letter the Registered Person advised that he had “decided not to partake in the proceedings.”  In the second letter the Registered Person set out his response to the allegation. The Committee was satisfied that the Registered Person had received notice of the hearing as required by Rules 7-9 of the Committee Rules (“the Rules”). In determining whether to proceed in the absence of the Registered Person the Committee had regard to Rule 18 of the Rules. It noted the Registered Person’s email of 12 October 2022 and accompanying letters. The Committee determined that the Registered Person had voluntarily absented himself from the proceedings and was unlikely to attend any adjourned hearing. The Committee noted that various witnesses were in attendance (by video-link) to give evidence and that this was the second listing of a hearing into the allegation. In the circumstances, the Committee could see no utility in adjourning the hearing and determined that that it was in the public interest, and fair to the Registered Person, to proceed with the hearing.

Evidence 

7. The Committee heard evidence from seven witnesses. Witness 1 and Witness 7 were directors of GRID. Witness 5 was the Registered Person’s project manager at GRID. Witnesses 2, 3, 4 and 6 were fellow employees. All adopted their Witness Statements as their evidence (on occasions, with minor amendment as to dates) and offered further oral evidence. The Committee also had regard to the exhibits within the Hearing Bundle. Further, the Committee had regard to the Registered Person’s responses to the allegation in the letters accompanying the email of 12 October 2022. The Presenter on behalf of the ARB made submissions on the evidence. The Registered Person also made submissions on the evidence in his correspondence as referred to.

Findings of Facts

8. In reaching its decision the Committee carefully considered the submissions made, together with the evidence presented to it, both in documentary form and in oral evidence.

9. The Committee also had regard to the advice of the Legally Qualified Chair (“LQC”) that on disputed issues of fact, the onus of proof was on the ARB and that the standard of proof was the civil standard of the balance of probabilities. In determining the facts, the Committee considered the evidence in the round and noted that it was entitled to draw reasonable inferences from established facts, but that it was not to speculate. 

10. The Committee found the ARB’s witnesses to be credible and reliable. Their recollections were broadly consistent with each other. There were minor discrepancies in recollection (such as the precise words used by the Registered Person on his departure from GRID’s offices, and the degree of elevation in salutes made by him) but that did not depart from the coherence of the totality of their evidence. Such discrepancies as there were, in the view of the Committee, were more likely to be due to either the location of the witnesses at the relevant time or the fading of recollection over the passage of time. On issues of substance, the Committee found ARB’s witnesses to be consistent as to the Registered Person’s disparaging attitude to those in the workplace he perceived to be of foreign nationality or origin or of Jewish faith. Whilst the witness spoke to various events, some spoke to the same event and when viewed in the round the evidence demonstrated a repeated hostility on the part of the Registered Person towards foreign nationals and those of Jewish faith that in the view of the Committee added to the credibility of the individual witnesses’ testimony of specific events.

11. Against that background the findings of the Committee are:

Particular 1 – Found Proved

12. The Committee accepted the evidence of Witness 1 that the Registered Person was employed by GRID between 10 November 2021 and 24 November 2021. The Committee also accepted the evidence of Witness 6 that whilst the Registered Person was working for GRID the Registered Person had said to him “ you should keep quiet, its good it makes you like you know what you’re talking about” and, on a separate occasion, “you should get different glasses, they do not suit you … those glasses make you go from your age to about 45”.  The Committee accepted the evidence of Witness 6 that those comments were unsolicited and said in a tone that imparted a sense of malice. Witness 6 in his evidence stated that he had been offended by the comments. The Committee accepted that evidence as true. The Committee determined that in the view of a reasonable person such unsolicited comments in the workplace were such as could reasonably be expected to cause upset or annoyance in as much as they carried negative judgemental implications as to the recipient, and thus were offensive.  

13. The Committee also accepted the evidence of Witness 3 that the Registered Person had said during his employment with GRID that he did not like the demographic of the office as it was “too Eastern European.”  The Committee also accepted the evidence of Witness 2 that the Registered Person had said in a negative tone that there were now more “Southern Europeans” moving to London. The Committee determined that in the context of the other matters found proved, the Registered Person’s comments were offensive. In the view of the Committee, they carried a reproach as to the character of the Registered Person’s work colleagues and non-UK nationals and as such would, to a reasonable person, be seen as offensive.

14. The Committee also accepted the evidence of Witness 1 and Witness 7 that during an interview on the Registered Person’s last day in GRID’s offices held to discuss concerns as to the Registered Person’s conduct, the Registered Person said that he was anti-Semitic and the “he hadn’t realised” he had “joined a practice of fucking Jews” and that he had been placed within the office “with fucking Jewish freaks”.  Their evidence was consistent as regards each other and bore similarity to evidence from others as to the Registered Person’s conduct elsewhere in the office. The Committee accepted the evidence of Witness 3 that after the meeting with Witness 1 and Witness 7 the Registered Person said to her, on his way out of the office “Fuck off, you Jewish cunt.” In her evidence Witness 4 also recalled the Registered person’s rebuke to Witness 3, she recalled the Registered Person say “Die Jewish cunt” or words to that effect. The Committee preferred the evidence of Witness 3 to that of Witness 4 on the basis that Witness 3 was the recipient of the comment and therefore more likely to recall its detail and Witness 4 qualified her recollection as to the precise words used. The similarity of reproach on the basis of Jewish faith remained consistent.  The Committee also found all that evidence to be consistent with, and thus supportive of, other evidence it accepted from Miss F that the Registered Person had said that there was a “need to be alert around Jewish people” as “they were likely to use and mistreat people”; evidence from Witness 6, with some support from Witness 5, that the Registered Person had said that he did not want his children to be taught, at school, by Jews; and evidence from Witness 4 that the Registered Person had expressed disgust at the idea of marrying a Jewish woman.  Together (and along with the evidence of conduct referred to below), in the view of the Committee the accepted evidence demonstrated a series of anti-Semitic and offensive comments. In the view of the Committee the comments referred to above would, to a reasonable person be seen as demonstrating hostility or discrimination towards Jewish people and would cause upset or annoyance.

15. As to conduct, the Committee accepted the evidence of Witness 3 that during his employment and at work the Registered Person had raised his arm in a Nazi salute in the presence of colleagues; and on a later occasion, as he departed the office on his last day there, that he made a similar gesture towards her. The Committee also accepted the evidence of Witness 6 that the Registered Person made a similar gesture on more than one occasion during his time at GRID, when purportedly seeking to demonstrate the height of a splash-back.  Bearing in mind the evidence before the Committee that the Registered Person’s work did not entail any issue as to the height of splash-backs and the disparaging comments found proved as regards non-UK nationals, the Committee was satisfied on the balance of probabilities, considering the evidence in the round, that the Registered Person’s conduct entailed the making of Nazi salutes towards fellow employees on more than one occasion.  The Committee determined that such conduct would, to a reasonable person, be offensive. It therefore found part b) of this allegation proved also.

Particular 2 – Found Proved

16. The Committee accepted the evidence of Witness 5 that she had searched Instagram to see if the Registered Person had an Instagram profile and had found only one such profile which on further inspection included a photograph of the Registered Person and his name. The profile included posts of UK Government correspondence from 1917 expressing sympathy with aspirations for “the establishment in Palestine of a national home for the Jewish people” overwritten with “Coming to the conclusion that in all this new ’presence’ in London is revenge for Britain having made them a country to move to”; a post of a drawing of a train carriage with religious symbols with what appears to be a cannister being thrown inside with a caption “Dear Border Force, Customs, Home Office etc Could someone explain how the majority of normal Londoners now do not use the Underground? It appears to be predominantly populated with due benefit creepy shit”; and a further post narrating “I recently joined an office only to find it was full of faggot shit, not a straight bloke in the place, and the women mostly Israeli or Babylonian Jew … lasted three weeks”.  Having regard to the nature of the comments as consistent with the comments expressed by the Registered Person whilst at GRID as found proved above, the inclusion of the Registered Person’s name and photograph on the profile and the reference to a period of employment consistent with the Registered Person’s employment at GRID, the Committee found it proved on the balance of probabilities that the Instagram posts before it were posted by the Registered Person.

17. The Committee also determined that the posts referred to would be regarded by a reasonable person as offensive. Further, to the extent that they included references that a reasonable person would regard as demonstrating hostility or discrimination towards Jewish people, it determined them to be anti-Semitic. To the extent that the comments were offensive and anti-Semitic they were also, in the view of the Committee, such that a reasonable member of the public would regard them as inappropriate public posts from a registered architect.

Findings on Unacceptable Professional Conduct (UPC)

18. Having found the foregoing facts proved, the Committee proceeded to consider whether the Registered Person’s conduct amounted to UPC, that is “conduct that falls short of the standard required of a registered person” (s. 14(1)(a), Architects Act 1997). The Committee had regard to the advice of the LQC that the issue of whether the proved conduct amounts to UPC is one for the Committee’s independent judgment. The deficient conduct must be serious (Vranicki v Architects Registration Board [2007] EWHC 506 (Admin)). The Committee also bore in mind the decision in that to reach a decision of UPC “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 (Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin), [2013] 1 WLR 1307)  The Committee also reminded itself of the relevance of drawing a distinction between a single act and multiple acts of concern, viz. “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 and a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance.” (R (Calhaem) v General Medical Council [2007] EWHC 2606 (Admin)). 

19. The Presenter submitted that the Registered Person’s conduct fell short of the standard to be expected of an architect. Under reference to The Architects Code: Standards of Professional Conduct and Practice (“the Code”), she submitted the Registered Person had failed to meet the expectations required of him by Standards 1.1, 9.2 and 12.  She submitted that as regards particular (1), the Registered Person had engaged in gratuitous abuse and derogatory racist language, without justification, with the intention of causing offence.  She submitted, under reference to the Registered Person’s written submissions, that the Registered Person had limited insight into his conduct and had elected to blame others for his actions. As regards particular 2, she submitted free speech right was not unfettered, particularly where it involved gratuitous abuse and derogatory racist language.  She referred the Committee to Diggins v Bar Standards Board 2020 EWHC 467 (Admin) and Holbrook v Bar Standards Board [2022] 2021/4441 in support of that submission. She submitted that the Registered Person’s posts on social media were seriously offensive and/or racially charged and impacted on his fitness to practise as an architect. The language used by the Registered Person was said to diminish the trust and confidence the public places in the profession.

20. The Committee had regard to the Registered Person’s written submissions. He submitted that he was not a naturally intolerant person but had been the subject of “a targeted campaign by a certain section of people in the Architecture and Construction industry” which had made him intolerant. He stated that he found Witness 5 to be deliberately provocative and he became “quickly mistrustful of her actual place of origin.” He referred to the possibility of her being of Russian Jewish origin and “I find these people intensely strange and difficult to work with and believe I am a good British born Architect who is essentially passed around within their network.”  He did not consider his conduct towards Witness 5 as in any way worthy of forming a basis for action by ARB. As regards his conduct towards Witness 3, he stated that “[h]aving just been sacked and in an agitated state I unfortunately did say die Jewish Cunt. Which is what he had placed herself there for with that expression. However, I do apologise and wish it had never happened. I do not recall making a Nazi salute to Witness 3” (sic). As regards the social media posts the subject of the proceedings he stated “I find this aspect of the charges to be extremely mean spirited and inconsequential. I won’t go any further than to state I practice free speech” (sic).  He also submitted “I am not a Racist person and am someone who has been shaped by their experience. I strenuously state that I am yet to have a bad experience working with or interacting at all with people of African, West Indian or Indian sub-continent origin”.

21. The Committee determined that the Registered Person’s conduct in respect of each particular of the allegation, and cumulatively, amounted to UPC.

22. Standard 12 of the Code states:

“You should treat everyone fairly. You must act in compliance with your legal obligations. You must not discriminate because of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, or sexual orientation”

23. The Committee determined that the Registered Person’s comments and gestures in the workplace at GRID as found proved were variously discriminatory on grounds of age, race, religion, and belief.  The Registered Person did not treat everyone in the workplace fairly. His conduct was not a momentary lapse in acceptable standards of conduct. The Committee noted and accepted the evidence of Witness 1 and Witness 7 that the Registered Person admitted to them that he was anti-Semitic. His conduct was deliberate. It was repeated. Whilst the Committee gave consideration as to whether the comment made to Witness 3 as he left GRID’s offices could have been, as he described it, a consequence of an agitated state, the Committee, having regard to the whole circumstances, including the evidence as to what had occurred at the meeting with Witness 1 and Witness 7, determined that to the contrary, it was a determined and malicious statement.  The Registered Person’s comments and actions caused offence and fear on the part of his work colleagues. In that regard the Committee accepted evidence from one witness that they had, in consequence, changed their registered address on the RIBA register of architects to avoid the Registered Person knowing their home address. The Committee also determined that the Registered Person’s social media posts were discriminatory on grounds of race, religion, and belief. They constituted gratuitous abuse by, the use of derogatory and discriminatory language and expression on a public platform, easily accessible to the public under reference to the Registered Person’s name.  Whilst the Committee had regard to the Registered Person’s right to free speech, including that right as set out within the Human Rights Act 1998 and Article 10 of the European Convention on Human Rights, the Committee reminded itself that the right is not unfettered. Whilst the right of free speech may permit conduct that causes offence, the Registered Person’s comments and actions were, in context and in the opinion of the Committee, seriously offensive and seriously discreditable and went beyond the mere expression of opinion and were espoused and performed, without apparent justification, to demean and insult and provoke hostility against individuals on grounds of protected characteristics. They went beyond legitimate comment.

24. Standard 9.2 of the Code provides:

“You are expected to conduct yourself in a way which does not bring either yourself or the profession into disrepute.”  

25. Standard 1.1 of the Code provides:

“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”

26. The Committee determined that the Registered Person’s conduct as found proved was serious and amounted to a significant departure from the expected standard set out in Standard 12 of the Code. Further, it brought the Registered Person, as an architect, and the profession into disrepute in a manner inconsistent with Standard 9.1 of the Code and demonstrated a lack of integrity in a manner inconsistent with Standard 1.1 of the Code. The Committee determined that the Registered Person’s offensive, anti-Semitic and inappropriate conduct was discriminatory. A registered Architect, as a professional person ought to act fairly and without discrimination. The public expect such standards from professional persons. The Registered Person’s actions occurred, in part, in the workplace. As to his actions outside of the workplace, on social media, it was conduct that touched upon the public expectation of fairness and non-discrimination on the part of professional persons. As such, it was conduct referrable to him being a registered architect. In that regard the Committee noted how his social media profile was easily accessible and that included both a reference to “Architecture”, his name and his photograph and reference to work colleagues and thus contained information that would allow a reasonable person, aware that the Registered Person was a registered architect, to relate the comments on the profile to the Registered Person.  The Committee determined that the Registered Person’s conduct demonstrated a shortfall in the high ethical standards in which society holds professional persons. It undermined his integrity. It risked undermining the reputation of the profession. The Registered Person’s conduct was, in the opinion of the Committee the very antithesis of what it means to be a professional. The public must be able to have trust in members of the profession that they will behave professionally, including in their private life where relevant to their professional standing. Membership of the profession carries many privileges, but it also imposes responsibilities as to standards of conduct. The Registered Person’s gratuitously offensive and discriminatory conduct seriously failed to meet those responsibilities.

27. The Committee thus determined that the Registered Person’s conduct as found proved, whether the particulars are considered separately or together, carried what to an ordinary intelligent citizen would be a degree of opprobrium as to justify the conclusion that it fell short of the standard required of an architect and therefore amounted to UPC. 

Sanction

28. The Committee, having found the Registered Person guilty of UPC, went on to consider whether a disciplinary order was necessary.

29. The Presenter submitted that whilst the Registered Person had no prior adverse regulatory history, she invited the Committee to have regard to its findings that the Registered Person’s behaviour had not been an isolated act towards a particular group but involved discrimination on various grounds. Further, it was deliberate and premeditated, with the intention to cause insult and fear. It had significant impact on more than one colleague. She submitted that it demonstrated entrenched integrity issues on the part of the Registered Person and that a lack of insight ought to weigh heavily in the Committee’s consideration of what sanction to impose. Under reference to “Amao v Nursing and Midwifery Council” [2014] EWHC 147 (Admin) she drew a distinction between insight into whether an event had occurred and insight as to the need avoid re-occurrence. She invited the Committee to conclude that the Registered Person did not have sufficient insight that he ought not repeat the conduct proven.

30. The Committee following the advice of the LQC, reminded itself that the primary purpose of any sanction is to preserve confidence in the profession and to declare and uphold proper standards of conduct and competence. Sanctions are not imposed to punish architects, although sanctions may have a punitive effect. It also reminded itself of the need to have regard to the Sanctions Guidance issued by ARB, and of the need to act proportionately. 

31. The Committee considered the aggravating and mitigating factors in the case. As to mitigating and aggravating factors, the Committee had regard to the absence of prior regulatory concerns in respect of the Registered Person. As to aggravating factors, the Committee noted the pattern of conduct of offensive and anti-Semitic behaviour, which was deliberate. It determined that the Registered Person did not demonstrate true insight into his conduct. Whilst it noted that the Registered Person acknowledged he was anti-Semitic, it was satisfied that the Registered Person had no meaningful insight into the offensive and unacceptable nature of that belief being manifested by a professional person both in the workplace and outside of the workplace in a manner that touched upon his professional standing. Whilst the Registered Person had offered an apology for one aspect of his conduct, it was a very limited apology in the light his whole conduct as proved.  It related to only one comment made by him, as he departed GRID, and, in referring to the location of the recipient, sought to attach some responsibility for the comment to her. In the absence of any meaningful insight, the Committee also identified a substantial risk of to the public going forward. It recalled the concern expressed by more than one of the Registered Person’s colleagues at GRID as to their personal safety, expressed in terms of feeling “very vulnerable” and changing their RIBA registered address, in the light of the Registered Person’s conduct. No evidence was placed before the Committee of any appropriate remedial steps taken by the Registered Person to address his conduct.

32. The Committee considered first whether it would be appropriate to impose no sanction. However, the Registered Person’s conduct was far from being at the low level of seriousness as would justify such an approach and the Committee identified no exceptional circumstances that would justify such a conclusion to proceedings given the findings already reached.

33. The Committee next considered whether a reprimand would adequately reflect its concerns as to the Registered Person’s conduct.  Again, the view of the Committee was of opinion that the Registered Person’s conduct was not at such a low level of seriousness that would render such a disposal appropriate or proportionate.

34. The Committee then considered whether to impose a penalty order. It determined that in the light of the seriousness of the conduct a penalty order was neither appropriate nor proportionate to protect the public or the reputation of the profession.

35. The Committee next considered whether to impose a suspension order. However, the Committee determined that such a sanction would not be sufficient to uphold the reputation of the profession. The Committee determined that the Registered Person’s conduct was very serious. It was sustained, deliberate and intentional in seeking to cause offence. It caused emotional harm to others. The Registered Person has demonstrated no meaningful insight into his conduct or remorse. The Committee concluded that the Registered Person’s conduct is demonstrative of an entrenched discriminatory attitude that, in the absence of any meaningful insight, is likely to be repeated. It finds that to be incompatible with the Registered Person continuing to be an architect. Therefore, the Committee concluded that the only appropriate and proportionate sanction would be one of Erasure. 

36. The Committee therefore concluded that the Registered Person’s name be erased from the Register and so directs the Registrar. 

37. Should the Registered Person wish to return to practice as an architect he may apply and seek to demonstrate that he is a fit to be registered in the light of the concerns found established in these proceedings. However, the Registered Person will be entitled to apply for restoration of his name to the register, but no earlier than a period of two years beginning with the date of this order.

38. The Committee gave consideration to the concern expressed by the Registered Person in his written submissions were the Committee to publish this determination. In submissions to the Committee the ARB submitted that there was a legitimate public interest in the publication of the decision of the Committee and that such publication was vital in maintaining public confidence in the profession and in advising of appropriate standards of behaviour. Publication of the decision would be fulfilment of the overarching objectives of the Committee. The Committee determined that the Registered Person had identified no good reason for not publishing the decision in common form. It therefore made no order as regards restraint on publication.

39. That concludes this determination.