Professional Standards Guidance Note
This guidance relates to any application to stay the ARB’s investigations into the conduct or competence of an architect when there are concurrent court proceedings.
It is incumbent on the ARB as a public body to conduct its investigations expeditiously, and it is in the interest of both the public and the architect that allegations are considered and resolved as quickly as possible.
As a general principle, while it may be appropriate for the ARB to postpone its regulatory investigations if the architect concerned is being tried concurrently for related criminal charges, it will be a rarer occurrence when a postponement will be granted simply because the parties concerned are involved in civil proceedings.
Concurrent criminal proceedings
A potential injustice may arise if regulatory proceedings are conducted at the same time as a related criminal trial. As more restrictive rules of evidence will apply in criminal proceedings, there is a risk that evidence which has not been admitted at that trial may enter the public domain by being admitted in the course of the regulatory proceedings. For that reason, ARB investigations are likely to be postponed until any related criminal trial has concluded.
In addition, acquittal in the criminal courts will not always mean that no regulatory action will follow, as the grounds for acquittal may be irrelevant for the purpose of regulatory proceedings. For example, the conduct of an architect may be found to be lawful, but nonetheless fall below the standard of behaviour expected of a professional.
Concurrent civil proceedings
There may be a case for a regulator voluntarily deferring an investigation pending the outcome of civil litigation if the litigation is more likely to arrive at the truth that the disciplinary proceedings, for example, because of the greater powers of the court, such as the power to order disclosure or the power to hear evidence under oath. If evidence can be obtained speedily and more efficiently by this route then a stay might be appropriate.
However the courts have shown a marked reluctance to stay regulatory proceedings when asked to do so by parties who are the subject of a concurrent civil action. As was stated in R v Executive Counsel of the Joint Disciplinary Scheme:
“Regulatory investigations and disciplinary proceedings perform important functions in our society. Furthermore, the days have gone when the High Court could fairly regard the proceedings of disciplinary tribunals as necessarily providing second class justice”.
Following the advice of this and subsequent decisions, the factors that will be taken into account by the ARB when considering any application for a stay are:
- The decision to stay proceedings will be exercised sparingly and with great care;
- Unless a party seeking a stay can show that if a stay is refused there is a real risk of serious prejudice, then that application for a stay will be refused;
- Even if the ARB is satisfied that there is risk of serious prejudice, then this must still be balanced against other considerations, in particular the public interest that the disciplinary process is not impeded. In doing so it is entitled to consider the seriousness of the allegation(s) and the weight of the prima facie evidence