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Mr Simon Middlehurst

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Simon Middlehurst (058042B)

Held as a video conference

On

12 and 13 January 2021

———-

Present

Andrew G Webster QC (Chair)
Roger Wilson (PCC Architect Member)
Jules Griffiths (PCC Lay Member)

———–

In this case, ARB is represented by Ms Kathryn Sheridan of Kingsley Napley LLP.
Mr Middlehurst has attended this hearing but is not legally represented.

The Professional Conduct Committee (“PCC”) found Mr Middlehurst guilty of having been convicted of a criminal offence, other than an offence which has no material relevance to his fitness to practice in that he was convicted on 27 January 2020 of two counts of Assault by Beating contrary to Section 39 of the Criminal Justice Act 1998.

The sanction imposed is a reprimand.

Allegation

1. The Charge against Mr Middlehurst (“the Respondent”) (as amended: see below) is 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 practise in that he was convicted on 27 January 2020 of two counts of Assault by beating contrary to Section 39 of the Criminal Justice Act 1998.”

Background

2. The Charge comes before the Professional Conduct Committee (the “Committee”) further to its jurisdiction under the Architects Act 1997, section 15(1)(b) to make a disciplinary order if a 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.

Preliminary legal matters

3. At the commencement of the hearing Ms Sheridan (“the Presenter”) sought to amend the Charge to substitute 31 January 2020 for 27 January 2020 as the date of the Respondent’s conviction. She referred to a certified copy of a Memorandum of an Entry in the Register of Buckinghamshire Magistrates’ Court sitting at Wycombe Magistrates Court, placed before the Committee as an Exhibit. This was referred to in a Witness Statement of Sarah Atkinson, a solicitor in the employment of Kingsley Napley LLP, recording the Respondent’s guilty plea on 27 January 2020. The Presenter submitted that in the light of the certified date of plea, it would be fair to allow the Charge to be amended to reflect that date. The Respondent did not object to the proposed amendment.

4. The Committee allowed the amendment. In doing so the Committee determined that it would allow the Committee to properly resolve the substantive issue before it; and there would be no material prejudice to the Respondent in allowing the amendment.

Findings of fact (1)

5. Further to Rule 18.b of the Professional Conduct Committee Rules (“the Rules”), the Respondent was asked whether he admitted all of any of the facts alleged. The Respondent admitted that as a matter of fact he was convicted on 27 January 2020 of two counts of Assault by beating contrary to Section 39 of the Criminal Justice Act 1998. Thereafter he tendered a plea of not guilty to the Charge.

6. In the light of the Respondent’s admission of fact, the Committee found it proved that the Respondent was convicted on 27 January 2020 of two counts of Assault by beating contrary to Section 39 of the Criminal Justice Act 1998.

Findings of Fact (2) and Criminal offence other than an offence which has no material relevance to the Respondent’s fitness to practise

7. There was a dispute between ARB and the Respondent as to one aspect of the gravamen, or essence, of the conviction as regards the assault by beating of Person A.

8. The ARB relied upon the Witness Statement of Sarah Atkinson, which produced various statements disclosed by Thames Valley Police to ARB in the course of the ARB investigation into the allegations against the Respondent. The statement of Person A included that the Respondent had in the course of a physical altercation “pushed me to the floor and had his hands around my neck”. The Statement of Person B narrated the Respondent “pinning [Person A] to the floor”, but made no reference to the Respondent’s hands. The statement of Child X (also described elsewhere as Child C) narrated that the Respondent had “his hand round the back of [Person A’s] neck trying to pull her out of the studio”. Person B and Child X also narrated that the Respondent had spat on Person A. The certified copy of the Memorandum of Conviction disclosed that the Respondent had received an 18 month Community Order with a Programme Requirement to participate in an accredited programme for 30 days and a Rehabilitation Activity Requirement of up to 6 days. A Restraining Order was imposed in respect of his contact with Persons A and B for a period of 6 months or thereby; and there was a requirement to pay a surcharge to fund victim services of £90 and prosecution costs of £500.

9. The Respondent elected to give evidence. He accepted that he pushed and shoved Person A; and that he had spat on her. He stated that he did not have his hands around Person A’s neck. He described his actions as having occurred out of provocation as Person A had attended uninvited at his studio late in the evening and began removing and damaging his property, including work related computer equipment. He stated that the pushing occurred whilst trying to remove Person A from his studio, with a view to protecting his work and documents. He said he had subsequently been advised by the police that Person A had a right to be in the studio at the material time because of joint ownership of the domestic property. He also said that he had been by advised by his solicitor in relation to the criminal charges that pushing Person A was an assault. He said that having taken legal advice and with a view to avoiding his children having to give evidence he had pled guilty to the criminal charges.

10. He stated that the Community Order imposed as a sentence following conviction had been cancelled with effect from 16 November 2020 in the light of the time that had passed and the current Covid-19 pandemic.

11. When cross-examined, the Respondent accepted that he had been aware of the statements of Persons A and B and Child X before pleading guilty to the criminal charges. In response to questions from the Committee, his evidence was that no qualification or reservation had been made on his behalf to the charges when he tendered his plea of guilty. He stated that as regards the Community Order, only the Programme Requirement had been brought to an end. He stated that of the conviction, “on paper it sounds horrific”, but sought to put it into a context of what he described as “extreme provocation”. He described his actions as “regrettable”.

ARB Submissions

12. ARB’s Presenter submitted that under reference to Wray v General Osteopathic Council [2020] EWHC 3409 (QB), that the Respondent was not permitted to go behind his conviction and endeavour to show that he was innocent of the charge and should not have been convicted; although she accepted that additional facts could be adduced and relied upon, provided they are consistent with the offence.

13. She submitted that the Respondent’s conviction was materially relevant to his fitness to practise and that the requirements of section 15(1)(b) of the Architect Act 1997 had been met. She submitted that his conviction on two counts of domestic violence was serious and that its nature and substance brought the profession into disrepute and therefore called into question the Respondent’s fitness to practise. She invited the Committee to have regard to the sentence imposed in assessing seriousness: it was not disputed that the Respondent had received an 18 month Community Order with a Programme Requirement to participate in an accredited programme for 30 days and a Rehabilitation Activity Requirement of up to 6 days. She also noted that the Respondent had been obliged to pay a surcharge to fund victim services of £90 and prosecution costs of £500. Further a Restraining Order was imposed in respect of his contact with Persons A and B for a period of 6 months or thereby. She invited the Committee to approach the substance of the conviction by having regard to the Crown Prosecution Service papers placed before the Committee (including the Statements of Persons A and B and Child X) on the basis that he had been sentenced on those documents. Under reference to Council for the Regulation of Health Care Professionals v General Dental Council [2005] EWHC 87 (Admin) she submitted that the Respondent should not be permitted to practice without restriction during the existence of the Community Order.

14. The Presenter further submitted that even on the Respondent’s narrative of the offence for which he was convicted, his conduct would be considered deplorable by fellow members of the profession. She submitted that the Respondent lacks insight into his offending, as demonstrated by his repeated references in evidence to having been provoked, and by a lack of willingness to accept that public confidence in the profession might be adversely affected by his actions.

15. Under reference to the General Guidance in The Architects Code: Standards of Professional Conduct and Practice (“the Code”), she submitted that the Respondent’s criminal convictions were materially relevant to his fitness to practise in so far as they called into question his integrity. She submitted that the Respondent had failed to comply with Standards 1.1 and 9.2 of the Code in that his actions demonstrated a failure to act with integrity and that he had conducted himself in a way which brought the profession into disrepute. Architects, she observed, are expected to maintain the high standards that that society expects from professional persons in the form of adherence with the ethical standards of their profession.

Respondent’s Submissions

16. The Respondent submitted that he had pled guilty to the offence for which he had been convicted, but he disputed that the conviction included the events described by Person A in so far it involved the placing of his hands around her neck. He sought to clarify his evidence in respect of the Community Order that had been made. He explained that the Programme Requirement was brought to an end on 16 November 2020, and that the Rehabilitation Activity Requirement remained outstanding, but was shortly to be discussed at a meeting with probation services. He referred to and adopted his written submission to the Committee. So far as relevant to the issues before the Committee at this stage of its considerations the Committee noted the full terms of the Respondent’s two written submissions, including that the Respondent’s position was that his actions had been as a result of an attempt by Person A to remove property from his studio in the context of a difficult and protracted matrimonial breakdown; that there had been an attempt to remove property; that Person A damaged property; that an altercation broke out; that there was pushing and shoving of Person A in an attempt to remove her from the studio; that the Respondent described himself as being under “extreme stress and under deliberate provocation and duress” at the time; and that there had been no damage to clients or other professional contacts. Indeed, he said they were sympathetic to his situation and generally supportive.

Legal Advice

17. The Legally Qualified Chair reminded the Committee that on disputed issues of fact, the onus of proof was on ARB and that the standard of proof was the civil standard of the balance of probabilities. In determining any facts, the Committee should consider the evidence in the round and was entitled to draw reasonable inferences from established facts, but should not speculate. The issue of whether the criminal offences for which the Respondent had been convicted were other than offences which have no material relevance to the Respondent’s fitness to practise was a matter for the Committee’s judgment. The Committee should have regard to the Code, issued by ARB, as to what amounts to a conviction for an offence other than an offence which has no material relevance to the Respondent’s fitness to practise as an architect.

Determination

18. On the content of the conviction, the Committee determined that it was admissible to have regard to evidence as to the acts constituting the offence for which the Respondent was convicted, provided that evidence did not contradict the finding of guilt. The Architects Act 1997, section 15 does not provide that all criminal convictions must necessarily result in a finding of guilt under that section. The offences to which the Respondent pled guilty could be constituted by a range of actions, the seriousness of which, whilst trespassing the limits of lawful behaviour such as to amount to a criminal offence, might inform the issue of material relevance. It is therefore relevant to consider the content of the offence, particularly where the content of the acceptance of guilt and of the conviction is in dispute, in that some conduct is accepted as unlawful, but other alleged conduct is not.

19. Having heard the Respondent in person, the Committee found him to be a generally careful and credible witness of fact. He gave his evidence candidly in relation to the advice he had received, and was careful to distinguish between his acceptance of guilt for certain actions which he acknowledged amounted to assault by beating on the one hand; and other alleged actions, which he disputed had occurred. However, in the light of the serious nature of the disputed evidence relating to placing his hands around Person A’s neck, the Committee found it difficult to conceive that this issue of fact had not been raised or disputed before the sentencing magistrate. The Committee did not have the advantage of any sentencing remarks or evidence as to what was placed before the sentencing court. ARB relied on the police papers, but no evidence was offered to the Committee as to the extent to which those papers were before the Court.

20. The Committee reminded itself in the light of the advice tendered to it by the Legally Qualified Chair that the onus of proof is on ARB. Without a sentencing statement or evidence as to what was narrated to or placed before the Court as to the essence of the charges, the Committee was not satisfied on production of the statements of Witnesses A and B and Child X alone, that it had been provided with cogent evidence that the criminal conviction, and the sentence imposed therefore, reflected the disputed actions involving the placing of the Respondent’s hands around Person A’s neck. The Committee was not therefore satisfied on the balance of probabilities that the conviction proceeded upon that component of Person A’s allegation.

21. However, the Committee was satisfied, in the light of the Respondent’s acceptance in evidence, that that his conviction proceeded on his acceptance of pushing and shoving Persons A and B and spitting on Person A in a domestic setting and in the presence of a child, and so finds in fact.

22. The Committee then determined as a matter of judgment that the Respondent’s conviction of that conduct was a conviction of a criminal offence other than an offence which has no material relevance to his fitness to practise.

23. In reaching that finding the Committee had regard to all of the evidence before it and the submissions of the Presenter and the Respondent and to the legal advice of the Chair.

24. The Respondent having been convicted of the two offences, it was not for the Committee to weigh, and the Committee did not weigh in its consideration, the Respondent’s explanation of events after the offences were committed in so far as they may be taken to refute the finding of guilt by the criminal courts. In the opinion of the Committee the Respondent’s conviction for offences, to which he pled guilty, was serious. It entailed the use of unlawful force against two persons. The offences demonstrated a lack of restraint on the part of the Respondent. Architects are required to act with integrity Standard 1.1 of the Code and in a manner that would not bring the profession into disrepute Standard 9.2 of the Code. The Committee determined that the Respondent’s conviction undermined his integrity. By assaulting by beating two persons the Respondent’s actions failed to maintain the standard of general conduct expected of an architect, a member of a protected profession. Further, the Committee was of opinion that a member of the public would be shocked and appalled by the Respondent’s criminal conduct, and that accordingly it brought the profession into disrepute and undermined public confidence in the profession. The Committee was therefore satisfied that the Respondent’s conviction was for an offence other than an offence which has no material relevance to his fitness to practise.

Sanction

25. The Committee went on to consider whether a disciplinary order is necessary.

26. The Presenter submitted that a disciplinary order was necessary as the offences for which the Respondent had pled guilty were serious, involving the pushing and shoving of two persons and spitting on one of them, all in the presence of a 17 year old child. The Respondent’s actions had resulted in bruising to one to those assaulted. The Presenter further submitted that the Respondent had demonstrated limited insight. She acknowledged that the Respondent had pled guilty to the criminal charges; has no adverse regulatory history; that he had reported his convictions; and that he had engaged with the regulatory proceedings.

27. In response, the Respondent stated that he respected the determination of the Committee on the merits of the Charge; and would accept whatever sanction the Committee determined to impose. He advised the Committee in general terms of his financial circumstances and his ongoing employment situation, having already noted in his written submissions that as a consequence of the events leading to his conviction, he had lost employment. He was no longer employed and sought private commission work, which in the light of the current Covid-19 pandemic was proving difficult to secure. He advised the Committee that as a result of a change in personal circumstances there was less prospect of confrontation with Person A. Further, he had sought professional advice as a consequence of which he now knew to walk away from stressful situations. He also observed that he had never been provoked in the workplace. In his written submission, the Respondent had set out his explanation of the circumstances leading up to the events resulting in his conviction, including a prolonged and difficult marital breakdown. He advised the Committee that the matrimonial home, where the events occurred, had been sold.

28. The Committee has carefully considered all the evidence and submissions made during the course of the hearing. The Committee 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 primarily to protect the public, to maintain the integrity of the profession and to declare and uphold proper standards of conduct and competence. It has taken into account the Respondent’s interests, the Sanctions Guidance issued by ARB, and the need to act proportionately, taking into account all the aggravating and mitigating factors in this case.

29. The Committee has taken into account the following mitigating factors. The Respondent’s conviction was in respect of a single episode in an otherwise unblemished career of over 28 years. He pled guilty to the criminal charges and had reported his conviction to ARB. He had cooperated with the regulatory process. There had been no apparent repetition of offending behaviour since the date of the offences, in November 2019. The Committee noted also that the Respondent had sought and continues to receive professional assistance in respect of the issues giving rise to his offending behaviour. Having heard the Respondent, the Committee were of opinion that the Respondent has some insight into his behaviour. The Committee noted his volunteered expression of regret in respect of his offending, but was concerned that there appeared to be a hesitation to accept that his behaviour was unlawful; and limited recognition on his part as to the meaning and effect of the Community Order that had been imposed in the criminal proceedings. In that regard, it was of note to the Committee that the Respondent’s plea of guilty in the criminal proceedings was one which he appeared to have accepted in part to save others having to give evidence; and he did not volunteer the Community Order as providing any insight or assistance in managing possible future conflict with Person A. The Committee also noted the supportive testimonials provided to the Committee.

30. The Committee has identified the following aggravating factors. The conviction was of physical assault of two persons. The offending occurred in a domestic setting, in front of a child. For the reasons already given, the Respondent’s insight into his offending was, in the view of the Committee partial.

31. Whilst the matters before the Committee did not arise in the course of the Respondent’s professional practice, the Committee nevertheless considers that a sanction is necessary to protect the public as the Respondent’s offending conduct was serious and went to his integrity; and raises issues of public safety and the reputation of the profession.

32. The Committee first considered whether to impose a reprimand. Whilst the Committee was firmly of opinion that the Respondent’s conduct was serious, and could not exclude the prospect of a repetition of the Respondent’s offending behaviour, it considered that the risk of reoffending was low. Whilst concerned about his limited insight, the Committee had regard to the particular circumstances in which the offending behaviour had occurred and the change in the Respondent’s personal circumstances since then. The Committee noted that there had been no repetition of offending behaviour since the index incident. The Respondent had expressed regret. He had taken steps to address his behaviour.

33. The Committee recalls that a reprimand will remain permanently on an architect’s record and may be taken into account in any future disciplinary proceedings.

34. Having regard to the low risk of repetition, the salutary effect that a reprimand is likely to have on the risk of repetition, and bearing in mind that the primary purpose of any disciplinary order is the protection of the public and the reputation of the profession, the Committee determined that a reprimand was the appropriate and proportionate order to impose. In doing so the Committee also determined, having regard to the public interest, that the imposition of a reprimand to the Respondent, which will be published on the ARB website, provides an unequivocal statement to the profession and the public that the Respondent’s conduct, although other than in a professional setting, was not of the standard to be expected of an architect and is likely to bear professional opprobrium.

35. Having so determined, the Committee concluded that it was not necessary to consider any more onerous order.

36. That concludes this determination.

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