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Mr Stuart Robert Duffy

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Mr Stuart Robert Duffy (062652J)

Held 28-30 January 2019

at

International Dispute Resolution Centre

70 Fleet Street

London

EC4Y 1EU

———

Present

 Julian Weinberg (Chair)

Roger Wilson (PCC Architect Member)

Stephen Neale (PCC Lay Member)

Rosemary Rollason (Clerk to the PCC)

———

 

ARB is represented by Jonathan Goodwin Solicitor Advocate

Mr Duffy has attended this hearing and is legally represented by Martin Budworth of Kings Chambers as instructed by Dallas & Richardson Solicitors

The PCC found the architect guilty of unacceptable professional conduct for signing off properties as being practically complete when they were not.

A finding of dishonesty was made.

The sanction imposed is an erasure order.


Allegations:

 

  1. In this case, the Board is represented by Mr Jonathan Goodwin. Mr Duffy (“the Respondent”) has attended this hearing and is represented by Mr Budworth of counsel. Mr Duffy faces a charge of unacceptable professional conduct (“UPC”) based on six allegations in relation to breaches of the Architects Code: Standards of Conduct and Practice 2010 (“the 2010 Code”) and the Architects Code: Standards of Conduct and Practice 2017 (“the 2017 Code”) in that:

 

Part 1 – Complaint of Dr A

  • 1.1 He acted improperly by signing off a property as being practically complete in a Professional Consultant’s Certificate dated 7 July 2017 when it was not;
  • 1.2 He failed to deal adequately, or at all, with a complaint about his professional work.

 

Part 2 – Complaint of Mr H

  • 1.3 He acted improperly by signing off a property as being practically complete in a Professional Consultant’s Certificate dated 8 May 2013 when it was not.

 

Part 3 – Complaint of Mr K

  • 1.4 He acted improperly by signing off a property as being practically complete in a Professional Consultant’s Certificate dated 8 May 2013 when it was not;
  • 1.5 He failed to deal adequately, or at all, with a complaint about his professional work.

 

Part 4 – Complaint of Mr Y

  • 1.6 He acted improperly by signing off a property as being practically complete in a Professional Consultant’s Certificate dated 8 May 2013 when it was not.

 

  1. Dishonesty is alleged in respect of allegations 1.1, 1.3, 1.4 and 1.6.

 

Background:

 

Part 1 – Complaint of Dr A

  1. At the material time, the Respondent was practising as an Architect under the name of KDP Architects. This case arises out of a complaint made by Dr A (“the first complainant”), in relation to the Respondent’s conduct regarding a Professional Consultant’s Certificate certifying practical completion dated 7 July 2017 in respect of his property (the Sky Building) in circumstances where the construction work had not been completed. It is alleged that the first complainant was entitled to rely on the Respondent’s Professional Consultant’s Certificate which wrongly stated that the works had been completed to a satisfactory standard.

 

  1. The certificate certified the following:
  • That KDP Architects had visited the site at appropriate periods from the commencement of construction to the current stage to check generally, progress, conformity with drawings approved under the building regulations and conformity with drawings / instructions properly issued under the building programme;
  • That at the stage of the last inspection on 7 July 2017, the rooms had reached the stage of practical completion;
  • So far as could be determined by each periodic visual inspection, the property had generally been constructed to a satisfactory standard and in general compliance with the drawings approved under the building regulations.

 

  1. The certificate further stated that it may be relied upon by the owners and mortgagees of the units at the property.

 

  1. The first complainant took photographs of the state of the works in support of his assertion that the necessary works had not been satisfactorily completed. As a result, the first complainant made a complaint to the Respondent, requesting relevant information regarding his professional indemnity insurance. It is alleged that the Respondent failed to adequately respond to the first complainant’s complaint. The first complainant has since withdrawn his complaint to ARB.

 

  1. The factual allegations, dishonesty, and hence UPC, are denied.

 

Parts 2, 3 and 4 – Complaints of Mr H, (“the second complainant”), Mr K (the third complainant) and Mr Y, (the fourth complainant).

  1. Complaints were made by the above in relation to the Respondent’s conduct regarding his issuing Professional Consultant’s Certificates dated 8 May 2013 certifying practical completion in respect of their respective properties in a block of apartments in a hotel in Hatton Garden, Liverpool (The Richmond Hotel), in circumstances where the construction work had not in fact been completed. The complainants were the owners of Apartments 412, 414 and 413 respectively. Again, photographs were taken of the property showing that the works had not been completed.

 

  1. The relevant certificates certified the following:
  • That Mr Duffy had visited the site at appropriate periods from the commencement of construction to the current stage to check generally, progress, conformity with drawings approved under the building regulations and conformity with drawings / instructions properly issued under the building programme;
  • That at the stage of the last inspection on 8 May 2013, the rooms had reached the stage of practical completion;
  • So far as could be determined by each periodic visual inspection, the property had generally been constructed to a satisfactory standard and in general compliance with the drawings approved under the building regulations.

 

  1. The certificates further stated that it may be relied upon by the respective first purchasers of each of the properties.

 

  1. It is alleged that the complainants were entitled to rely on the Respondent’s Professional Consultant’s Certificate which wrongly stated that the works had been completed to an adequate standard.

 

  1. The third complainant also makes a complaint that the Respondent failed to respond adequately to his complaint about the issue of the Professional Consultant’s Certificate when he raised it with him.

 

  1. It is ARB’s case that, in respect of each of the allegations in relation to certifying practical completion, the Respondent would have been aware of the stage the construction of the relevant buildings would have reached, but nevertheless, certified practical completion with the relevant certifications as set out above. It is alleged that in doing so, the Respondent would have been aware that the information contained in the certificates was untrue and misleading, that the Respondent would have been aware at the time that that was the case, and that when judged by the standards of ordinary people, his conduct would be considered to be dishonest.

 

  1. The ARB appointed an Inquirer, Mr Morrissey, to visit both properties and to prepare a report following his inspections. In addition, he took a number of photographs to support his findings.

 

  1. He concluded that the building was “far from complete” and that there was “no possibility of beneficial occupation of any part of it. Good practice would be to only issue a certificate of practical completion when that stage has been achieved”. He identified a number of outstanding issues:
  • The external cladding is not watertight;
  • Bare steelwork could still be seen, with no evidence of fire protection; and
  • Cladding panels were missing in a number of areas.

 

  1. In respect of Apartments 412, 413 and 414 at The Richmond Hotel, Mr Morrissey concluded the following:
  • No doors had been fitted to the apartments;
  • The steelwork was exposed and had no fire protection;
  • The doors in the patio door frames had not been installed, and the openings were loosely covered in plywood;
  • The upstand at the outer edges of the roof terrace had no adequate guarding to protect against falls from above;
  • The apartments had no electrical installation and no plumbing, no bathroom and no kitchen fittings;
  • There was no fire alarm or smoke detection system in place;
  • There was no plasterboard to ceilings or walls and no insulation on external walls;
  • There was no plasterboard on the studwork;
  • The whole area was strewn with rubbish and building materials;
  • There were bird droppings on the floors and on other surfaces;
  • There were several areas of damp patches where rainwater was gaining egress;
  • In respect of Apartment 412, the studwork on the corridor side had no insulation and no plasterboard to the apartment side, which he stated, may cause a weakness in any fire compartmentation;
  • In respect of Apartment 413, there was a window missing from a larger opening in the bedroom on the fourth floor;
  • The corridor serving all three apartments was not complete and electrical cables within the corridor ceiling had been left in bundles.

 

  1. He concluded that, both the interior and exterior being far from complete, “The work to form this apartment is a long way short of practical completion”. He concluded that “Good practice would be to issue certificates of Practical Completion only when that stage had been reached”.

 

  1. It is ARB’s case that practical completion should not have been certified where the work was patently incomplete. Mr Goodwin submitted that works are only generally considered to be practically complete where there are no outstanding defects, save for minor items or snagging, and the building can be put to its intended use. This, Mr Goodwin stated, was a critically important stage, from which, amongst other things, the defects liability period begins.

 

  1. Mr Morrissey gave live evidence to confirm the contents of his report. There was no cross-examination of him, his evidence being accepted by the Respondent. Mr Morrissey was a clear and credible witness, not prone to exaggeration.

 

  1. The third complainant also gave live evidence. Whilst being initially reticent about any assistance he might have received from others regarding the making of his complaint and the drafting of his correspondence, he was credible and consistent in relation to the fact that practical completion had been certified in circumstances where his property was far from complete. He accepted that, whilst agreeing with the contents of the correspondence sent in his name, he was not its author.

 

  1. In reaching its decisions, the Committee has carefully considered the documentary evidence presented to it in the Report of the ARB’s Solicitor and the 323 pages of exhibited documents. The Committee has also had sight of the Respondent’s witness statement and exhibits, and statement of defence and has also heard his live evidence. The Respondent has also submitted a statement by KT, a Director of Sky Building Limited. The Committee has accepted the legal advice given by the Clerk. It has had regard to the fact that the burden of proof is on the Board and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies, irrespective of the Respondent’s admission.

 

Findings of Fact

 

  1. The Committee makes the following finding of facts:

 

Allegation 1.1

  1. The Committee has taken into account the contents of the report of Mr Morrissey together with the supporting photographic evidence. It has also noted that the Respondent accepted in his evidence that he signed off the property as being practically complete when it was not. The Respondent accepted the conclusions of Mr Morrissey’s report in that it was inappropriate to have issued the Practical Completion Certificate in these circumstances. As such, the Committee finds that by acting as alleged, he acted improperly.

 

  1. The Committee therefore finds the facts alleged proved.

 

  1. The Committee then went on to consider whether the Respondent acted dishonestly.

 

  1. The Respondent in giving live evidence, accepted the following:
    i) That he signed the four Professional Consultant’s Certificates in question;
    ii) That in doing so, he was aware at the time that his declarations as to the condition of the various properties were untrue and misleading in that the building works were not complete;
    iii) That, as a result, and contrary to the position taken in his statement dated 21 January 2017, he acted dishonestly by certifying the works as being practically complete when they were not.

 

  1. However, he stated that his reason for issuing the certificate was because, even though he knew that the works were not practically complete, he stated that he considered that he was acting in the best interests of the investors. Had he not done so, he stated, it would not have been possible to draw down further funds to enable the development to be completed.

 

  1. In considering whether the Respondent acted dishonestly, the Committee has applied the test for dishonesty as set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67.“When dishonesty is in question the fact-finding tribunal must first ascertain subjectively the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the objective standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

 

  1. In the circumstances, in applying the first limb of the Ivey test, the Committee finds that, in light of the Respondent’s admissions to questions put to him in cross examination, the Respondent, at the time of issuing the Professional Consultant’s Certificate, knew that the works in question were not practically complete, and that by doing so, he knew the content of the certificate was untrue and misleading. In the circumstances, the Committee considers that ordinary decent people would consider such conduct to be dishonest.

 

  1. Standard 1 of the 2017 Code states:Honesty and Integrity1.1 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.1.2 You should not make any statement which is contrary to your professional opinion or which you know to be misleading, unfair to others or discreditable to your profession.

 

  1. In the circumstances, the Committee finds that the Respondent acted dishonestly and in breach of Standard 1 of the 2017 Code.

 

  1. In the circumstances, the Committee finds the facts of allegation 1.1 proved.

 

Allegation 1.2

  1. The Committee finds the facts of this allegation not proved.

 

  1. The Committee has carefully considered the email correspondence between the first complainant and the Respondent. It is apparent from that correspondence that, the first complainant having made his complaint by email dated 25 September 2017, the Respondent addressed the complaint by phone on 3 October, explaining the actions he had taken. On 16 October 2017, the Respondent emailed the first complainant stating that he had notified his insurers “and (they) are working with us going forward” and that he had certified practical completion to allow the release of funds to complete the project. Whilst the first complainant subsequently made repeated requests for details of the Respondent’s insurers, which correspondence the Respondent did not address, such requests did not relate to a complaint about his professional work.

 

  1. In the circumstances, the Committee finds that the Respondent replied to the first complainant adequately, and in a timely manner. As such it does not find the facts of this particular proved.

 

Allegation 1.3, 1.4 and 1.6

  1. The Committee finds the allegations proved for the following reasons. The facts in relation to each apartment are the same, and the Committee has therefore addressed the facts of these allegations together.

 

  1. It is not disputed that the Respondent issued the relevant certificates certifying practical completion. In addition, the Respondent accepts the findings of the Inquirer that further work was needed before it would have been appropriate to issue certificates and that it was inappropriate to have issued the Professional Consultant’s Certificates in these circumstances. As such, the Committee finds that by acting as alleged, he acted improperly.

 

  1. In considering whether the Respondent acted dishonestly, the Committee notes that the Respondent, in giving live evidence, again accepted the following:
  • That he signed the Professional Consultant’s Certificates in question;
  • That in doing so, he was aware at the time that his declarations as to the condition of the various properties was untrue and misleading in that the building works were not complete;
  • That, as a result, he acted dishonestly by certifying the works as being practically complete when they were not.

 

  1. However, he stated that his reason for issuing the certificate was because a director of the development company, Middle England Development Limited (MED,) with whom he was dealing, was an intimidating and menacing individual, with a criminal past, and that he had pressured him into completing the certificates. He stated that at a meeting in early May 2013, that director had stated that if the certificates were not issued, then KDP Architects would not receive their outstanding fees in excess of £215,000, and the Respondent would be held personally accountable for any delay or failure to complete the project. The Committee was mindful that the relevant director is not a party to these proceedings, nor has he been given the opportunity to comment on statements made to the Committee about his character.

 

  1. In response to questions put to him in cross-examination, the Respondent accepted MED was an important client whose work provided approximately 75% of the practice’s fees. KDP had undertaken 5 developments for MED and had earned fees in excess of £1m. However, at the relevant time, the Respondent was owed a substantial amount in outstanding fees. The Respondent accepted that he was prepared to issue the practical completion certificates to keep the director happy, and that he put that before consideration of his professional obligations. Failure to have done so would have prevented the additional necessary funding being made available to complete the project.

 

  1. In applying the first limb of the Ivey test, the Committee finds that, in light of the Respondent’s admissions to questions put to him in cross examination, the Respondent, at the time of issuing the Professional Consultant’s Certificates, knew that the works in question were not practically complete, and that by certifying that they were, he knew the content of the certificate was untrue and misleading. In the circumstances, the Committee considers that ordinary decent people would consider such conduct in respect of each certificate, to be dishonest.

 

  1. The Committee has considered Standard 1 of the 2010 Code the wording of which is the same as the 2017 Code. In the circumstances, the Committee finds that the Respondent acted dishonestly in breach of standard 1 of the 2010 Code.

 

Allegation 1.5

  1. The Committee has had sight of the email from the third complainant in which he made his complaint to the Respondent. It was the Respondent’s evidence that he had not received the email, or that it may have gone into his email junk folder. In either circumstance, the email had not been seen by him and he had therefore not responded to it.

 

  1. The Committee notes that the Respondent was not cross-examined on this point. It also notes that the Respondent has, in giving his evidence, been frank in admitting his dishonesty in respect of the practical completion certificates issued by him. Given his explanation, and his willingness to admit serious failings, the Committee accepts that, on the balance of probabilities, he had not seen the third complainant’s email, hence his lack of a response to it.

 

  1. In the absence of having seen the third complainant’s email, the Committee has concluded that the Respondent has not failed to deal with it and it therefore finds the facts not proved.

 

Finding on unacceptable professional conduct

 

  1. Having found allegations 1.1, 1.3, 1.4 and 1.6 proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC. UPC is defined as conduct which falls short of the standard required of a registered person. Any finding of UPC is a matter for the Committee’s independent judgment.

 

  1. In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the Clerk. The Committee recognises that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an Architect.

 

  1. The Committee recognises that any failing should be serious, such that it would attract a degree of opprobrium. The Committee has borne in mind the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and 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 (The Queen on the Application of Dr Malcolm Noel Calhaem –v- General Medical Council [2007] EWHC 2606 (Admin)). Misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as, “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”. The Committee also recognises that any failing must be serious (Vranicki v Architects Registration Board [2007] EWHC 506 Admin).

 

  1. The Committee has taken into account all the evidence before it together with both Mr Goodwin’s and Mr Budworth’s submissions.

 

  1. However, so far as the matters found proved and the corresponding breaches of the Code are concerned, the Committee finds that the Respondent’s failings represent conduct falling substantially below the standard expected of a registered architect. Compliance with Standard 1 goes to the heart of what it means to be a professional. Failing to act honestly, particularly in these circumstances where reliance is placed on the certificates, amounts to a serious falling short of an architect’s core obligations. Having acted dishonestly in 2013, and then having repeated that dishonesty by improperly signing off another property as being practically complete when it was not, some four years later in 2017, aggravates the seriousness of the Respondent’s dishonesty. In seeking to appease others, in circumstances where the projects might otherwise have failed, the Respondent had chosen to disregard, and then repeat a failure to comply with a basic professional obligation.

 

  1. The Committee therefore concluded that the matters found proved represent serious departures from the standard expected of a registered architect. Those failings, the Committee has concluded, both individually and collectively, are sufficiently serious to amount to unacceptable professional conduct, which finding the Committee therefore makes.

 

Sanction

 

  1. Mr Budworth made submissions to the Committee in mitigation on the Respondent’s behalf.

 

  1. He submitted that in considering the seriousness of the Respondent’s dishonesty, the Committee should have regard to the nuance of the circumstances. He reminded the Committee that the Respondent had been frank in making admissions of dishonest conduct, and that it should be considered in the context of seeking to appease others, rather than for personal gain. The only people affected by the certificate in relation to the Sky project, he submitted, were those who requested that the Respondent certify practical completion. As such, he submitted, the Respondent’s actions were less serious than would otherwise be the case.

 

  1. In relation to the Hatton Garden project, he submitted that the Committee should balance the Respondent’s professional obligations against the intimidation by MED’s director, which he submitted, amounted to duress.

 

  1. He invited the Committee to take into account the extent to which the Respondent had generally used his skills for public good, in relation to his charitable and other works, and invited the Committee to take into account the testimonials adduced attesting to the Respondent’s character and professionalism.

 

  1. He reminded the Committee that its role was not to punish the Respondent for his wrongdoings, but to bear in mind the protection of the public interest, which he submitted, would not be damaged by the Respondent’s actions in all the circumstances. He also submitted that the Committee should be slow, despite its findings, to end the career of an otherwise competent Architect. He invited the Committee to conclude that the Respondent had no entrenched integrity issues and that these proceedings had had a salutary effect on the Respondent as a result of which, there was no prospect of his UPC being repeated. He also submitted that this was an isolated incident and that the complaint in relation to Hatton Garden was driven by ill-motivation on the part of MED’s director.

 

  1. He further submitted that the Respondent had expressed regret for his actions, and that he had been motivated by a desire to help his clients. He submitted that a reprimand might be appropriate, or failing that, a penalty order. If the Committee was minded to impose a period of suspension, he suggested that it should be for a sufficiently short period so as to maintain the viability of the Respondent’s practice. In that regard, the Respondent informed the Committee that the practice had 15 staff and at least four Architects. He stated that he is the only effective director in the practice. Erasure, Mr Budworth submitted, would be a disproportionate sanction to impose in all the circumstances.

 

  1. Having carefully considered those submissions, the Committee does not accept that the Respondent’s actions represent an isolated incident. In respect of the property at Hatton Garden, the Respondent dishonestly issued three Professional Consultant’s Certificates. Having done so, he repeated the same dishonest behaviour, although his justification for his conduct was different, some four years later in that the respective projects might have failed but for his actions.

 

  1. The Committee then went on to consider the seriousness of the Respondent’s actions in the light of what the Respondent stated, was duress imposed by MED’s director. The Committee reminded itself that the Respondent stated in evidence that the director had not made any direct threats of violence against him or any other person, but that the demonstrable extent of pressure exerted was limited to the Respondent being told that he would not receive a penny in outstanding fees and he would be held personally accountable if the project collapsed from his failure to certify practical completion. Mr Budworth submitted that the Respondent knowing the director’s background for intimidation, succumbed to the pressure exerted on him.

 

  1. However, the Committee has considered the circumstances in context. The Respondent’s practice had acted for the director’s company on five projects and had earned itself over £1m in fees. MED’s business accounted for about 75% of the practice’s turnover. On the basis of the evidence before the Committee, it was not satisfied that the level of pressure exerted was so extreme as to justify the Respondent disregarding his professional obligations. Even if it were accepted by the Committee that the duress was sufficient to justify his actions, it fails to explain why the Respondent should repeat his dishonest behaviour some four years later in circumstances where duress was not an issue.

 

  1. It is not uncommon for clients of Architects or other professionals, to make unreasonable demands which bring individuals into direct conflict with their professional obligations. In order for the public to maintain confidence in the profession, the public should justifiably be able to expect that in such circumstances, Architects will robustly comply with their professional obligations. Giving clients unwelcome advice is unexceptional and is part and parcel of being a professional. The public are entitled to demand that Architects are trustworthy in such circumstances. Failure to act honestly unquestionably undermines the confidence the public can have in the profession.

 

  1. The Committee has also considered the level of the Respondent’s insight. In doing so, the Committee notes the Respondent’s admissions of dishonest behaviour, albeit that these came late in the day and only as a result of cross-examination. The Committee notes that these admissions were at odds with the position he had put forward in the documentation prepared for this hearing. However, the Committee also concluded that the Respondent felt he was only before the Committee because of the ill-motivated actions by the director of MED, who assisted the complainants in pursuing the matter with the ARB. The Committee considered that this approach was demonstrative of a lack of insight by the Respondent. Irrespective of the director’s actions behind the scenes in agitating for the complaints to proceed (and the Committee makes no finding in this regard), the complaints themselves were not malicious, but were, given the Committee’s findings, wholly justified.

 

  1. In considering insight, and whilst noting the Respondent’s regret for his actions, the Committee notes the lack of demonstrable evidence of insight in relation to how the Respondent’s actions impact on the reputation of the profession. The Committee noted that it was Mr Budworth’s submission on the Respondent’s behalf, that it did not so impact. In addition, other than the Respondent’s submission that these proceedings had had a salutary effect on him, there was no information before the Committee as to what steps the Respondent had taken to ensure that, should he be faced with similar circumstances again, he would act differently. Given that the Respondent repeated his dishonest behaviour, having accepted that he knew he had acted dishonestly in 2013, the Committee considered that the risk of repetition of his UPC was significant.

 

  1. 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 and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Clerk. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the indicative 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.

 

  1. In considering the appropriate sanction in a case involving dishonesty, the Committee has taken care to balance all the relevant issues, including any aggravating and mitigating factors. It is important to understand the context in which the dishonest acts took place and to make a decision considering the key factors. “The effect of dishonesty by professionals as far as public confidence in the public is concerned….is a primary consideration for a Fitness to Practise panel” (Siddiqui v GMC [2013] EWHC 1883). In the case of the case of PSA v Nursing and Midwifery Council, Mr D Wilson [2015] EWHC 1887 (Admin) where it was held that the public interest outweighs the Registrant’s interest, and the effect of sanction on a registrant was very much of secondary importance. In that case, Mrs Justice Laing stated: “The overriding factor … was the public interest in maintaining the reputation of the profession. The [NMC] and the public are entitled to the highest standards of honesty and integrity from the Registrants…” The Committee has borne in mind that there is a spectrum of seriousness of dishonesty (Watters v NMC [2017] EWHC 1888 (Admin)), and has considered where, on a properly nuanced scale of dishonesty, the misconduct falls (Lusinga v NMC [2017] EWHC 1458 (Admin)). The Committee has also borne in mind Bolton v Law Society [1994] 1 WLR 512 in reminding itself in that the collective reputation of the profession is more important than the fortunes of the individual and that expulsion from the profession is appropriate for serious lapses.

 

  1. Having taken all the evidence and submissions before it into account, the Committee has identified the following aggravating factors:
  • the Respondent’s dishonesty was deliberate and repeated and related to a critically important aspect of the development projects. As a result, the Committee considers the Respondent’s dishonesty to be at the more serious end of the scale;
  • the Respondent has demonstrated limited insight into the impact of his actions on the reputation of, and public confidence in the profession and considers that he has been unfairly wronged by the complaint against him being maliciously motivated;
  • his actions led to the second complainant paying £190,000 for a property that had not been completed.

 

  1. The Committee has identified the following mitigating factors:
  • that the Respondent has no adverse regulatory history in a 22 year career;
  • dishonesty was admitted in evidence, albeit late in the day;
  • the Committee recognised his contribution to the profession generally;
  • he has engaged in the regulatory process and he has cooperated with the Board;
  • he has recognised and expressed regret for his failings, and has considered the experience a salutary lesson in compliance;
  • he has not personally gained financially from his failings;
  • he has provided written testimonials attesting to his character and professionalism.

 

  1. The Committee notes that the matters found proved are serious to the extent that Mr Duffy’s failings diminish both his reputation, and that of the profession generally. Honesty is a core quality that any member of the public should be able to expect from a professional, even when acting for demanding clients. The Committee has therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.

 

  1. The Committee first considered whether to impose a reprimand. The Committee considered that such a sanction was neither appropriate nor proportionate given that it did not consider the respondent’s UPC to be at the lower end of the scale given the aggravating factors identified.

 

  1. The Committee then considered whether to impose a penalty order and concluded that such a sanction was neither appropriate nor proportionate to protect the public or the reputation of the profession. The UPC found proved is too serious for the imposition of a penalty order.

 

  1. The Committee next considered whether a suspension order was appropriate. Having carefully considered the Indicative Sanctions Guidelines, the Committee considered that such a sanction would be insufficient to protect the public or the reputation of the profession. Given the identified risk of repetition, the fact of repeated dishonesty and limited insight has led the Committee to conclude that, taken in the round, the Respondent’s failings are fundamentally incompatible with continuing to be an Architect. The Committee considers that the matters found proved are so serious that only erasure from the register would protect the public and / or the reputation of the profession. The Committee therefore directs that the Respondent’s name be erased from the register. The Committee recommends that the respondent shall be entitled to apply for restoration to the register in no less than two years’ time which the Committee considers proportionate given the aggravating features of this case.

 

  1. That concludes this determination.

 


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