Mr Sean Francis McKay

 

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

SEAN FRANCIS McKAY (055538J)

Held on

1-2 June 2023

By Video Conference

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Present:

Emma Boothroyd (Chair)
Stuart Carr (PCC Architect Member)
Jules Griffiths (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 Sean McKay (“the Registered Person”) attended this hearing and was represented by Mr Jonathan Browne, instructed by MacElhatton Solicitors.

 

 

Allegation

The Registered Person faces the following allegations:

1)      He has been convicted of a criminal offence other than an offence which has no material relevance to his fitness to practise as an architect in that he was convicted on 26 November 2021 of fraud by false representation contrary to section 1 Fraud Act 2006; and,

2)      He is guilty of Unacceptable Professional Conduct (“UPC”) in that:

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

 

Background

1. The Registered Person is a registered architect at MK Architects. On 26 November 2021 the Registered Person pleaded guilty to fraud by false representation contrary to Section 1 of the Fraud Act 2006. The Registered Person was sentenced at Belfast Crown Court on the 16 June 2022 to a period of imprisonment for 1 year and 8 months which was suspended for 3 years.

2. On the 17 June 2022 ARB received a referral from a member of the public which enclosed a newspaper report of the Registered Person’s sentencing hearing.

3. The facts surrounding the conviction are that on 16 October 2011 the Registered Person suffered a personal injury after being struck by a golf ball. The Registered Person issued a claim for personal injury and included within that claim was a figure for loss of earnings. The Registered Person claimed he was off work for a period of three years and misled forensic accountants about the extent of his loss. In June 2017 at a hearing of the personal injury claim at the High Court further evidence was presented to that court that the Registered Person had overstated his loss of earnings and was working during the period he claimed to be unable to work.

4. Following that hearing the Registered Person was subject to a criminal prosecution. It was alleged by the Prosecution that the Registered Person had significantly overstated his loss of earnings and contended that the loss was in the region of £74,000. However, following protracted legal proceedings, it was agreed between the prosecution and defence that the contended loss was not more than £30,000.

Submissions

5. The Presenter submitted that the conviction met the threshold under Section 15(1)(b) of the Architects Act. She submitted that the Registered Person’s conviction does have a material relevance as they call into question his integrity because of the nature and seriousness of offending which demonstrated planned and sustained dishonesty for his own financial gain. The Presenter submitted that this therefore brings the profession into disrepute. The Presenter reminded the Committee that the Registered Person’s actions merited a custodial sentence of 20 months which was suspended for three years. The Presenter reminded the Committee of the principles set out in the case of Council for the Regulation of health Care Professionals v General Dental Council and Fleischmann [2005] EWHC 87 (Admin). The Presenter also drew the Committee’s attention to Standard 1.1 of the Code and submitted that honesty and integrity is fundamental to the reputation of the profession and the Registered Person’s conduct fell seriously short.

6. In relation to particular 2, the Presenter submitted that there had been no attempt by the Registered Person to report the conviction and it could be argued that had it not been reported by a member of the public then ARB may have never discovered matters. The Presenter submitted that this was a serious falling short of the standards required and could properly be characterised as UPC.

7. At the outset of the proceedings Mr Browne on behalf of the Registered Person, accepted the fact of the conviction but did not accept that it had any material relevance to his fitness to practise as an architect. Mr Browne submitted that this was a matter outside his work and not relevant to his work. Mr Browne submitted that the Registered Person has continued to carry out architectural work and there have been no concerns raised about his conduct towards members of the public within that role.

8. Mr Browne further admitted on behalf of the Registered Person that he had not declared the conviction within 28 days but stated that there was a considerable delay between conviction in November 2021 and sentence in June 2022 whilst the amount of potential loss was being calculated. Mr Browne submitted that it could be argued that the relevant date for notification should be taken as 16 June 2022. In the alternative Mr Browne submitted that this did not amount to UPC as the Registered Person did not deliberately withhold disclosure and it was not a serious falling short of the standards.

 

Decision on Particular 1

9. In reaching its findings, the Committee has carefully considered the documentary evidence presented to it in the Report of ARB’s Solicitor together with the documents exhibited to it, including the Registered Person’s correspondence with ARB. It has taken account of the written submissions made by Mr Browne and the references provided on behalf of the Registered Person. The Committee has carefully considered the oral arguments made by the Presenter and Mr Browne. The Committee had regard to the advice provided by the Legally Qualified Chair.

10. 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.

11. The Committee finds the conviction proved by virtue of the Registered Person’s admission and also having had sight of the certificate of conviction dated 11 August 2022. The Registered Person does not dispute the factual matrix of the conviction.

12. 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 Registered Person’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 the parties. The Committee was mindful that the Registered Person has not given live evidence.

13. 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 Standard 1 of the Architects Code, Standards of Professional Conduct and Practice 2017 (“the Code”).

14. 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.”

15. The conviction in November 2021 was 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.

16. Further, the Committee considered that the nature of the offence was materially relevant to the Registered Person’s fitness to practise as an architect. The reputation of the profession is based on trust. The Committee considers that the Registered Person undermined that trust by making a fraudulent personal injury claim. The public rightly expects Architects to be honest and act with integrity. They can hold client money and be responsible for budgets. Architects regularly make declarations on planning applications, contracts, and other documentation which can have significant legal and financial consequences for clients. The Committee was in no doubt that a conviction for fraud undermines public trust in the profession generally and the Registered Person specifically.

17. The Committee noted that the Registered Person misled other professionals about his work as an architect. The Committee considered that this was a case that had clear relevance to the Registered Person’s fitness to practise.

18. In all the circumstances, the Committee therefore finds that the Registered Person 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 Particular 2 – found proved.

19. The Committee took into account the Registered Person’s admissions. In addition, it was clear from the face of the documentary evidence that the Registered Person had not disclosed his conviction to ARB, and it came to light following a referral by a member of the public after the sentencing hearing.

20. The Committee considered the submission made by Mr Browne that the relevant date could be considered to be the 16 June 2022 which was the date of sentence. The Committee did not accept this submission for the reasons that are set out below.

21. The Committee had regard to Standard 9 of the Code which 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”.

22. The Committee considered that this Standard made it clear that a conviction was only an example of a matter that needed to be disclosed. The Committee considered that it ought to have been obvious to the Registered Person, at the point that he was accepting of his criminal conduct and had entered a guilty plea that it was a matter that he was required to report to ARB. At that stage i.e., in November 2021 if not before, the Registered Person had confirmed to the Court that he had committed a criminal offence and he ought to have known that this was likely to reflect badly upon him and bring the profession into disrepute.

23. The Committee considered that the Registered Person’s contention that he was unaware of his obligations under the Code did not absolve him of his professional responsibilities or obligations in this regard. The Committee was therefore satisfied that the Registered Person had failed to report his conviction within 28 days as required by Standard 9.2 of the Code.

 

Decision on UPC

24. In deciding whether the facts found proved in relation to particular 2 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”.

25. The Committee considered that the 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 Registered Person’s conduct constituted a breach of 9.2 of the 2017 Code as set out above. The Committee considered that the Registered Person’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 failed to inform his regulator of such a matter. As previously indicated, the Committee did not consider that the assertion that the Registered Person was unaware of such an obligation was a sufficient explanation for such a fundamental failure.

26. It is the Committee’s finding that the facts found proved and the corresponding breach of the Code is 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.

27. In all the circumstances and for the reasons set out above, the Committee finds that the Registered Person’s conduct does amount to unacceptable professional conduct.

28. The Presenter set out ARB’s submissions in relation to sanction and drew the Committee’s attention to ARB’s Sanctions Guidance. The Presenter submitted that although she was not advocating for a particular sanction the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction. The Presenter submitted that the Committee might be minded to consider the following aggravating factors:

• It was conduct involving persistent dishonesty for financial gain;
• The conduct involved deception of professionals and the court;
• The Registered Person has limited insight, in that he has not demonstrated an appreciation of the impact of his conduct on others and the reputation of the profession.

29. The Presenter submitted that there were mitigating factors, the Registered Person had acknowledged fault and engaged in these proceedings. The Presenter submitted that there was evidence before the sentencing court that there was a low risk of repetition and there were some personal circumstances which impacted on the Registered Person at the relevant time.

30. Mr Browne on behalf of the Registered Person submitted that it was acknowledged that the dishonest conduct was serious and likely to attract a sanction. Mr Browne contended that a suspension was the appropriate and proportionate sanction given that the Registered Person had demonstrated remorse and was not a significant risk of repeating the conduct. Mr Browne submitted that erasure would be disproportionate in these circumstances as this conduct did not take place within the context of professional practice. Further, the Registered Person had already been subjected to significant personal and financial consequences and continuing to work would be a protective factor for his health and wellbeing. Mr Browne submitted that the conduct was not incompatible with continuing to be an architect and the references and testimonial confirmed that clients had confidence in him and wanted to work with him.

31. 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 Board and to declare and uphold proper standards of conduct, behaviour and competence. 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 sanction is not to be punitive although it may have a punitive effect. It has taken into account the Registered Person’s interests, the sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.

32. The Committee has identified the following aggravating factors:

The Registered Person’s dishonesty was sustained and required a degree of planning. It involved a deception of the Court, and others for financial gain.

1) The Registered Person’s dishonesty was sustained and required a degree of planning. It involved a deception of the Court, and others for financial gain.

2) The amount of money involved in the deception was significant.

33. Having taken into account the submissions, the Committee has identified the following mitigating factors:

1) The Registered Person has no adverse regulatory history.

2) Although the aim of the conduct was to secure financial reward, The Registered Person withdrew his legal claim and has incurred significant legal costs.

3) The Registered Person has engaged in the ARB process.

4) The Registered Person has acknowledged that his conduct was wrong.

34. The Committee was mindful that it had not heard any evidence from the Registered Person and so the weight to be attached to his insight was limited. In addition, the Committee heard no evidence about how the Registered Person had addressed the factors that led to his offending, and it had no evidence that he understood the impact of his conduct on the wider profession. Nevertheless, the Committee had no reason to doubt that the Registered Person was remorseful for his conduct as expressed in his correspondence to ARB dated 14 November 2022. The Committee considered that the Registered Person had some insight, and it was clear that he fully acknowledged that his conduct was wrong and should not be repeated.

35. The Committee took into account that the Registered Person has been punished by the Court for his conduct and is still subject to a suspended sentence. The Committee reminded itself that the purpose of disciplinary proceedings is not to punish the Registered Person again for the same offence.

36. The Committee notes that the matters found proved are serious to the extent that the Registered Person’s failings diminish both his reputation, and that of the profession generally. The Committee therefore concluded that the Registered Person’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.

37. The Committee first considered whether to impose a reprimand. The Committee considered that given the seriousness of the UPC found proved involving dishonesty, and the effect on the reputation of the profession, the Committee considered the Registered Person’s failings too serious for such a sanction to be either appropriate or proportionate.

38. The Committee next considered whether to impose a penalty order and considered that, for the same reasons, such an order was neither appropriate nor proportionate.

39. The Committee then considered whether to impose a suspension order and concluded that this was the appropriate and proportionate sanction. Such a sanction, in the Committee’s view properly reflects the seriousness of the Registered Person’s failures as found proved, the risk to the public and reputational damage to the profession. The Committee considered that the seriousness of the matters found proved were at the higher end of the scale and as such the Committee therefore imposes a suspension order for the maximum period of two years.

40. The Committee considered carefully whether to impose an erasure order but considered that notwithstanding the seriousness nature of the matters found proved the conduct is not incompatible with remaining on the Register. The Committee noted the positive references and testimonials submitted on behalf of the Registered Person. The Committee took into account that the Registered Person has been working at his wife’s practice and has been closely supervised.

41. The Committee has also taken into account that the Registered Person will be subject to his suspended sentence until June 2025 which will coincide with the expiry of the suspension order save for a few days. As a result, the Committee considered that in the circumstances of this case an erasure order would be disproportionate and punitive given the suitability of a suspension order.

42. That concludes this determination.