Guidance on dealing with an unrepresented respondent
This Guidance Note should be read in conjunction with ‘Guidance for those representing themselves in front of the Professional Conduct Committee’.
Although the Professional Conduct Committee Rules have been deliberately drafted so to be easily understandable to those without legal training, for most architects the prospect of having to appear at a hearing will be a daunting experience.
The unrepresented respondent may be apprehensive or nervous about having to present a case before a Committee and this may manifest itself in apparently hostile, belligerent or even rude behaviour. Committee members – and particularly Chairs – need to be aware of this and should take all reasonable steps to put unrepresented architects at ease, including:
- being patient at all times and making appropriate use of adjournments;
- explaining what will happen in straightforward terms, avoiding legal jargon
- explaining what the architect may or may not do, why and when;
- trying to get the architect to identify the issues in dispute and ensuring that they have said what they feel they need to say;
- agreeing timescales for how long any particular stage is going to take;
- giving clear reasons for any interlocutory rulings or decisions that are made.
Maintaining a fair balance
Unrepresented architects are unlikely to be familiar with law or procedure and, in particular, the difference between the presentation of evidence and cross-examination of witnesses. They should be allowed some latitude in the presentation of their case in order to ensure that they receive a fair hearing, but this does not mean that they should be allowed to exploit or abuse their lack of representation.
The Committee should ensure that an unrepresented registrant has every reasonable opportunity to make his or her case. For example, it may be necessary for the Chair to help the respondent to put a point to a witness in the form of a question. However, the Committee must be careful not to interfere in matters which must be decided by the respondent alone, such as whether to admit or deny the charge(s) or choose whether or not to give evidence. Equally, while the Committee can assist the respondent in presenting
his/her defence, it must be careful not to act as their representative or dispel the appearance of impartiality.
The Committee is expected to give clear procedural guidance in every case before them, but it is especially important to do so in cases where a respondent is unrepresented. As a minimum the following should be explained to the architect:
- who the members of the Committee are and how they should be addressed;
- who the other people present are and their respective functions;
- the procedure which the Committee will follow,
- that they will have the opportunity to present their case, so not to interrupt when someone else is speaking;
- that if they would like a short break in the proceedings at any time such a request is likely to be granted;
- that, if they do not understand something or have a problem about the case, the Committee should be told so that it can be addressed.
A person who is unfamiliar with the presentation of evidence by means cross-examination is likely to make statements to, rather than asking questions of, witnesses and may adopt an unnecessarily confrontational approach to the questioning. If a question is asked, the witness must be afforded the opportunity to answer it in an appropriate manner.
Although such behaviour is likely to arise inadvertently, the Chair should protect witnesses from questioning by an unrepresented architect which goes beyond the acceptable limits of challenging their evidence by means of cross-examination.
Striking the right balance on this issue will often be difficult, but the Chair must intervene as necessary in order to protect both the interests of witness and the architect’s right to a fair hearing.
If a finding of unacceptable professional conduct or serious professional incompetence is made, the respondent will be given an opportunity to speak in mitigation. It should be explained to the respondent that this is not a further opportunity to make points in defence, but to explain why the Committee should be lenient in its imposition of a penalty. The Chair should ensure that the architect has noted the contents of the Indicative Sanctions Guidance before addressing the Committee in this regard.