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Professional Standards Guidance Note- Proceeding in the absence of the Respondent

This guidance coversthe Professional Conduct Committee’s(PCC) power to proceed with a hearing in the respondent’s  (architect’s) absence.

 

Introduction

As a general principle, an architect who is facing a charge of unacceptable professional conduct or serious professional incompetence at the PCChas the right to be both present and represented at a hearing. However, the PCC Rulesallow the Committee to go ahead and hear the case, even though the architect might not be present or represented, if it is satisfied that allreasonable steps have been taken to give the architect sufficient notice of the hearing, and they have been given ample opportunity to attend.

 

The Committee has the discretion to decide whether to proceed with a hearing in the architect’s absence.   However, that discretion is one whichthe courts have described as “severely constrained”[1]. As the House ofLords held in R v Jones[2], the discretion to commence and conduct proceedingsin the absence of the respondent “should be exercised with the utmost care andcaution.”

 

The Committee must therefore strike a careful balance betweenfairness to the architect and the wider public interest when it exercises that discretion.

 

Exercise of discretion

When deciding whether to proceed in the architect’sabsence,the Committee mustconsider all the circumstances of the case.  This would include considering whether the architect’s actions amounted to their forgoing their right to be present or represented.

 

In deciding on how to proceed, the Committee should take account of the factors identified by theCourt of Appeal in R v Jones[3]:

 

  • the nature and circumstances of the architect’s absence and, in particular, whether their behaviour may be deliberate and voluntary, andas a result, a waiver of their right to appear;
  • whether an adjournment might result in the architect attending thehearing at a later date;
  • the likely length of any adjournment;
  • whether the architect, despite being absent, wished to be represented atthe hearing or has waived that right;
  • the extent to which any representative would be able to receiveinstructions from, and present the case on behalf of, the absent architect;
  • the extent to which the architect would be disadvantaged in being unable to giveevidence, having regard to the nature of the case;
  • the seriousness of the allegation;
  • the general public interest and, in particular, the interest of any victims or witnesses that a hearing should take place within a reasonable time after theevents to which it relates;
  • the effect of delay on witnesses’ memories;
  • where allegations against more than one architect are joined and not all of them have failed to attend, the prospects of a fair hearing for those whoare present.

 


[1]Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34

[2]R v Jones [2002] UKHL 5

[3]Ibid

 

Procedure to be followed

If an architect fails to attend a hearing and does not provide an explanation fortheir absence, the Committee will need to decide whether it is appropriate for the hearing to go ahead.

 

As a first step, the Committee should aim to find outwhether notice of the hearing wascorrectly sent to the architect,in line with both the Act[1] and the Rules[2]. If it is satisfied that notice was properly given, the Committee then needs to consider the factors set out above todetermine whether, in all the circumstances, it would be proper for the hearing to proceed in the architect’s absence.  The Committee should note the decision reached, and its reasonfor doing so, as part of the record of the proceedings.

 

If the Committee decides that a hearing should take place or continue in the absenceof the architect, it must ensure that the hearing is as fair as thecircumstances allow.  In particular, reasonable steps must be taken,both to test ARB’s case and to raise any points on the architect’s behalf,when evidence is given.

 

The Committee must also avoid reaching any improper conclusion about the architect’s absence and, unless there is written confirmation that suggests otherwise, assume that the architect denies all charges against them.

 


[1] Section 14(4)(a) Architects Act 1997

[2] Rule 6, ARB Professional Conduct Committee Rules (2011)

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