THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Theodore Frederick Olokundiya Adiyan 061550A

Held as a video conference

On 18 September 2020
———-

Present

Julian Weinberg (Chair)
Judy Carr (PCC Architect Member)
Steve Neale (PCC Lay Member)
———–

In this case, ARB is represented by Greg Foxsmith of Kingsley Napley LLP.
Mr Adiyan has attended this hearing but is not legally represented.

The PCC found that Mr Adiyan was convicted of a criminal offence other than an offence which has no material relevance to his fitness to practise. The sanction imposed is erasure.

1. ARB is represented by Mr Greg Foxsmith. Mr Adiyan (“the Respondent”) has attended this hearing but is not represented. This matter has come before this Committee pursuant to the Professional Conduct Committee’s jurisdiction to make a disciplinary order under Section 15(1)(b) of the Architects Act 1997 (“the Act”). Such an order can be made where an architect has been convicted of a criminal offence “other than an offence which has no material relevance to the architect’s fitness to practise”. This Committee recognises that this is a matter for the Committee’s discretion and that it is open to this Committee to make no order.

2. There is one allegation in that the Respondent:

1) was 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 29 November 2019 of breaching a restraining order imposed by the West London Magistrates Court on 8 June 2006, contrary to section 5(5) and (6) of the Protection from Harassment Act 1997.

Preliminary Issues

Application to hear part of the hearing in private

I. The Respondent has provided documentation in relation to his health in 2009 and 2018. As such, the Committee has considered whether those parts of the hearing that relate to his health should be heard in private.

II. The Committee has had regard to Rule 21 of the Rules which states:

a. A hearing of the Professional Conduct Committee shall be conducted in public unless, in the interests of justice or for other reason specified in Article 6 of the European Convention of Human Rights and Fundamental Freedoms, the Committee directs that all or part of the hearing shall be conducted in private.
b. An application that all or part of a hearing shall be conducted in private shall be heard in private.
c. If the Hearing Panel makes a direction that a hearing shall be conducted in private the direction shall be strictly confined to so much of the hearing as is necessary for the reason referred to in paragraph a. of this Rule.

III. Having heard and accepted the advice of the Legally Qualified Chair, the Committee concluded that those parts of the hearing that relate to the Respondent’s health should be heard in private.

Background

3. On 17 May 2006, the Respondent was convicted of harassment in respect of Person A (the Complainant in the criminal proceedings) contrary to Sections 2(1) and (2) of the Protection from Harassment Act 1996. The offending behaviour took place between November 2003 and April 2006. Person A had been in a relationship with the Respondent whilst she was at university but that relationship ended. However, Person A continued to receive intermittent unwanted contact from the Respondent.

4. On 8 June 2006, the Respondent was sentenced to four months imprisonment suspended for 24 months and a restraining order was imposed until further notice. The following conditions were imposed:

I. Not to contact directly or indirectly Person A or any member of her family
II. Not to go to Person A’s home address;
III. Not to go within the area of Temple, London;
IV. Not to contact any member of 4 Brick Court or anyone employed there.

5. The restraining order contained the usual declaration regarding the sentencing powers of the Courts for breaching the order.

6. The background to the conviction is that the Respondent breached the terms of the order on two occasions in 2019:

I. On 31 August 2019, the Respondent sent Person B, Person A’s husband, a LinkedIn request at 4.41 am. He also emailed Person B’s email address at 4.45am in relation to the passing away of Person A’s mother.
II. On 24 September 2019, the Respondent called Person B’s private mobile number at 15.51. He asked to speak to Person B to book an appointment for psychiatric treatment. He gave a false name. The Respondent, when asked where he got Person B’s number from, stated that he got it from a member of staff at Nightingale Hospital. Person B called the Nightingale Hospital and was told that private mobile numbers of Doctors were never given out to patients. Person B called the Respondent’s number back at 16.07 and heard a voicemail message belonging to the Respondent.

7. Person A confirmed that she had never given the Respondent her husband’s contact details. In her statement, she stated

“I am very disturbed and frightened by the resumption of contact by my ex. Mr Adiyan is fully aware that I do not want any contact with him…..I am frightened for my safety and for that of my family….it is particularly disturbing that we have not been in a relationship for 27 years, and despite being prosecuted previously, he has again attempted to make contact”.

8. The Respondent was convicted after having entered a guilty plea on 29 November 2019 at the Ealing Magistrates Court. The following sentence was imposed on the same day:

I. 8 weeks imprisonment suspended for 18 months;
II. The Respondent was made subject to a Treatment Requirement for 18 months;
III. He was made subject to a Rehabilitation Activity Requirement for 30 days, and
IV. He was ordered to pay compensation, a victim surcharge of £312 and costs of £85.

9. Being a case heard in the Magistrates Court, no sentencing remarks are available.

10. In his communication to ARB dated 9 December 2019, the Respondent provided ARB with a copy of the Order and details of the 2019 conviction. In respect of the breach of the Order, he stated:

“I had been romantically engaged to my college sweetheart and I was under tremendous stressed due to……I was not aware of how emotional feelings could cloud my logical thinking. I was under the impression that the restraining order had come to an end. I wanted to express my condolences at the death of [Person A’s] Mum who I was very close to in terms of emotional attachment”.

11. In his written representations, the Respondent referenced his health.

12. In reaching its findings, the Committee has carefully considered the documentary evidence presented to it in the Reports of ARB’s Solicitor together with the 46 pages of documents exhibited to them, including the Respondent’s correspondence with ARB.

13. The Committee finds the conviction proved by virtue of the Respondent’s admission and also having had sight of the memorandum of conviction. The Committee also notes the contents of the Respondent’s correspondence with ARB dated 9 December 2019. The Committee has noted the contents of the Respondent’s defence document in which he disputes a number of factual allegations that are the subject of the 2006 conviction. The Committee is nevertheless mindful that it is not able to go behind either conviction: (Spackman v GMC [1943] AC 627). The Committee also notes that evidence in relation to the underlying facts is admissible but only if they are not inconsistent with the conviction (Kirk v Royal College of Veterinary Surgeons [2004] UKPC 4).

14. 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 Respondent’s fitness to practise. This is a matter for the Committee’s judgment. In doing so, it has taken into account all the evidence and the submissions of Mr Foxsmith and the Respondent who gave live evidence. Mr Foxsmith submitted that the fact of the conviction met the threshold under Section 15(1)(b) of the Architects Act.

15. He submitted that the Respondent’s conviction is serious because it calls into question his fitness to practise by reason of the nature and seriousness of a breach of a court order and therefore brings the profession into disrepute. He reminded the Committee that the Respondent’s actions merited a suspended custodial sentence of eight weeks which is indicative of its seriousness. Furthermore, the nature of the offending related to a deliberate breach of a Court order and demonstrates a repetition of conduct which has caused considerable distress to Person A and her family, more than 25 years after the Respondent’s relationship with Person A finished.

16. He further submitted that the fact that the Respondent had obtained Person B’s private contact details was demonstrative of the lengths the Respondent was willing to go to make contact with Person A.

17. As such, he submitted that the Respondent’s conviction is materially relevant to his fitness to practise.

18. The Respondent denied that the conviction is materially relevant to his fitness to practise. He disputed a number of factual allegations in relation to the breaches of the Restraining Order that were found proved at the Magistrates Court. He also disputed that he had demonstrated a lack of integrity. He also stated that when he breached the Restraining Order, he was not aware that it was ongoing.

19. He stated in evidence today that the motivation for contacting Person B on 24 September 2019 was to seek medical help for his health issues. He considered that Person B’s relationship with Person A was a factor that might aid his healing process. However, the Respondent sought direct contact with Person B through a deception as to his identity.

20. In reaching its decision, the Committee has heard and accepted the advice of the Legally Qualified Chair and has also borne in mind the contents of Standards 1 and 9 of the Architects Code, Standards of Professional Conduct and Practice 2017 (“the Code”).

21. 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.”

22. Standard 9 of the Code states

“Maintaining the reputation of architects”:
9.2 “You are expected to conduct yourself in a way which does not bring either yourself or the profession into disrepute. If you find yourself in a position where you know that you have fallen short of these standards, or that your conduct could reflect badly on the profession, you are expected to report the matter to the Board. For example, you should notify the Registrar within 28 days if you:
are convicted of a criminal offence;
………..
The above are examples of acts which may be examined in order to ascertain whether they disclose a wilful disregard of your responsibilities or a lack of integrity, however this list is not exhaustive”.

23. The Committee has considered ARB’s submissions that the Respondent’s conduct amounts to a lack of integrity. The meaning of integrity was considered in the Court of Appeal in the cases of Wingate, Evans and Malins v SRA (2018) EWCA Civ 366 where it was referred to as

“a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members. The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards…..Integrity connoted adherence to the ethical standards of one’s own profession. That involves more than mere honesty…..The duty of integrity does not require professional people to be paragons of virtue. In every instance, professional integrity is linked to the manner in which that particular professions professes to serve the public….”

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

24. Having considered all the circumstances of this case, and notwithstanding the Respondent’s health issues, the Committee considers that the Respondent’s conviction is demonstrative of a lack of integrity and amounts to a breach of standard 1.

25. The Committee concluded that the Respondent’s conduct also brings the profession into disrepute and amounts to a breach of Standard 9 of the Code. Compliance with the law is a fundamental obligation of a professional architect, and the Respondent has been convicted of an offence in relation to breaching a court order, namely a restraining order. This was considered sufficiently serious for a suspended sentence of imprisonment to be imposed by the court, which in the Committee’s view, brings the profession into disrepute. The Respondent accepted that breaching a court order was serious.

26. In all the circumstances, the Committee therefore finds that the Respondent has been convicted of a criminal offence, other than an offence which has no material relevance to his fitness to practise as an architect.

Sanction

27. Mr Foxsmith referred the Committee to the Sanctions Guidance and the approach to be taken at this stage of the process. He referred to the professional reputational issues resulting from the Respondent’s conduct, the fact that the conviction was for a serious matter and that the Committee has made a finding of a lack of integrity. He highlighted the impact the Respondent’s actions had had on Person A. He also identified a number of mitigating factors including the Respondent’s remorse and his health issues about which the Respondent had been frank.

28. The Respondent addressed the Committee but did not refer to any specific mitigating factors for the Committee to consider.

29. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Legally Qualified Chair. It has borne in mind that the purpose of imposing a disciplinary order is not to punish an architect for a second time for the same offence, but to protect the public and maintain the collective reputation of the profession. It has taken into account the Respondent’s interests, the Sanctions Guidance and the need to act proportionately, taking into account all the aggravating and mitigating factors identified in this case.

30. It has also had regard to the decision in the case of The Council for the Regulation of Health Care Professionals v General Dental Council and Alexander Fleischmann [2005] EWHC 87 (Admin) in which it was said:

“….as a general principle, where a practitioner has been convicted of a serious criminal offence or offences, he should not be permitted to resume his practice until he has satisfactorily completed his sentence. Only circumstances which plainly justify a different course should permit otherwise. Such circumstances could arise in connection with a period of disqualification from driving or time allowed by the court for the payment of a fine. The rationale for the principle is not that it can serve to punish the practitioner whilst serving his sentence, but that good standing in a profession must be earned if the reputation of the profession is to be maintained.”

31. The Committee has also borne in mind the case of Solicitors Regulation Authority v Main [2018] EWHC 3666 (Admin) in which it was said that the essential question to consider was

“Would public confidence in the profession be harmed if they found that a man recently convicted of offences such as these and still subject to the notification requirements as well as to a restraining order specifically directed to protect the complainant was currently practising as a solicitor?”

32. The Committee is also mindful of the principle derived from the case of Bolton v Law Society [1994] 1 WLR 512 in that the collective reputation of the profession is more important than the fortunes of the individual member and that expulsion from the profession was appropriate for serious lapses.

33. In reaching its decision, the Committee has identified the following aggravating factors;

I. that the conviction was for an offence in relation to a breach of a previously imposed court order some 14 years ago and in relation to a relationship that ended over 25 years ago. The Committee considers this to be particularly relevant to the nature of any sanction being imposed given the Committee’s need to protect the public and the public interest;
II. the Respondent breached the Restraining Order on two occasions;
III. the Respondent’s actions “disturbed and frightened” Person A who stated that she was “frightened for my safety and for that of my family…..it is particularly disturbing that we have not been in a relationship for 27 years;
IV. the Respondent deliberately sought to make contact with Person B and did so by concealing his true identity by the use of a pseudonym.

34. The Committee has taken into account the following mitigating factors:

I. the Respondent does not have an adverse regulatory history;
II. he has engaged in these proceedings;
III. he has expressed remorse for his actions and has demonstrated insight into the impact of his actions both on Person A and on the profession;
IV. the Respondent has been suffering from health issues for which he has been, and is continuing to receive treatment;
V. that the Respondent self-reported the conviction to ARB as required.

35. The Committee has borne in mind that the matters before it do not directly relate to his professional practice. The Committee is also mindful that a sentence from a criminal court is not necessarily a reliable guide to the appropriate sanction to impose bearing in mind the need within a regulatory context to ensure the maintenance of public confidence in the profession. In addition, the Respondent would, in the course of his work as an architect, come into contact with members of the public. The Committee has taken note of the impact that the Respondent’s actions have had on Person A.

36. In the circumstances, the Committee considers that a sanction is necessary to protect the public. In addition, in the light of the aggravating factors outlined above, the Committee finds that the matters are sufficiently serious for a sanction to be imposed to protect the public interest. It has considered the options available to it by reason of section 15(2) of the Act in ascending order of severity.

37. It first considered whether to impose a reprimand and has concluded that, in all the circumstances, this would not be appropriate to protect the public interest given the seriousness of the matter found proved. Similarly, the Committee considers a penalty order to be inappropriate for the same reason.

38. The Committee then considered whether to impose a suspension order. Noting that the Respondent’s conviction was for a serious offence, the Committee was mindful that imposing a suspension order would allow the Respondent to resume practice automatically after the end of the period of suspension in accordance with section 17 of the Act. This would occur irrespective of the Respondent’s health at that time and irrespective of the risk of the Respondent repeating his offending behaviour. This is, in the Committee’s view, particularly relevant given that the Respondent remains subject to the restraining order and also because there is neither any evidence before the Committee that the Respondent no longer suffers from his health issues nor is there evidence regarding the likelihood of relapse.

39. The Committee therefore considered that the conviction is sufficiently serious that a suspension order would not be the appropriate and proportionate order to impose and that only an erasure order would meet the public interest, which order the Committee therefore imposes. By reason of section 18 of the Act, his name could not be re-entered in the Architects Register unless ARB so directs. This would mean that should the Respondent wish to return to practise as an architect, he would have to demonstrate that he is fit to do so by satisfying his regulator that he had fully addressed his behaviour that gave rise to his conviction, prior to resuming practice as an architect. This, the Committee concluded, was an essential safeguard to ensure that the reputation of the profession would be upheld. If the Committee imposed a suspension order, this would not be possible and hence, such a sanction would not be appropriate.

40. The Committee directs that the Respondent is not eligible to apply for re-entry to the profession until after the expiry of two years from the date of this order. Should the Respondent wish to apply for re-entry to the register, it would assist him to have up to date medical reports available and any other evidence he may consider appropriate that can provide some reassurance to ARB that his health issues have been sufficiently addressed, such that it can be satisfied that the risks identified have been mitigated, and so that he can safely be readmitted to the profession.

41. That concludes this determination.