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Guidance on proceeding in the absence of a respondent

This guidance relates to the power of the Professional Conduct Committee to proceed with a hearing in the absence of the respondent.

Introduction

As a general principle, an architect who is facing an allegation of unacceptable professional conduct or serious professional incompetence at the Professional Conduct Committee (PCC) has the right to be present and represented at a hearing. However the PCC Rules provide that if a registrant is neither present nor represented, the Committee may nevertheless proceed if it is satisfied that all reasonable steps have been taken to serve notice of the hearing on the architect, and they have had ample opportunity to attend the hearing.

The decision to proceed with a hearing in the absence of the architect is a matter within the discretion of the Committee. However, that discretion is one which has been described by the courts as “severely constrained”[1]. As the House of Lords held in R v Jones[2], the discretion to commence and conduct proceedings in the absence of the respondent “should be exercised with the utmost care and caution.”

In exercising that discretion, the Committee must strike a careful balance between fairness to the respondent and the wider public interest.

Exercise of discretion

In deciding whether to proceed in the absence of the respondent, the Committee must consider all of the circumstances of the case, including whether the architect’s actions amount to a waiver of the right to be present or represented.

In reaching a decision, the Committee should take account of the factors identified by the Court of Appeal in R v Jones[3]:

  1. the nature and circumstances of the registrant’s absence and, in particular, whether the behaviour may be deliberate and voluntary and thus a waiver of the right to appear;
  2. whether an adjournment might result in the registrant attending the proceedings at a later date;
  3. the likely length of any such adjournment
  4. whether the registrant, despite being absent, wished to be represented at the hearing or has waived that right;
  5. the extent to which any representative would be able to receive instructions from, and present the case on behalf of, the absent registrant;
  6. the extent of the disadvantage to the registrant in not being able to give evidence having regard to the nature of the case;
  7. the seriousness of the allegation;
  8. the general public interest and, in particular, the interest of any victims or witnesses that a hearing should take place within a reasonable time of the events to which it relates;
  9. the effect of delay on the memories of witnesses;
  10. where allegations against more than one registrant are joined and not all of them have failed to attend, the prospects of a fair hearing for those who are present.

Procedure to be followed

If a respondent fails to attend a hearing and has not provided any explanation for being absent, the Committee will need to determine whether it is appropriate to proceed in their absence.

The Committee should first seek clarification of whether notice of the hearing was correctly sent to the architect under both the Act[4] and the Rules[5]. If it is satisfied that notice was properly given the Committee should then consider the factors set out above to determine whether, in all the circumstances, it is appropriate to proceed with the hearing in the absence of the architect. The decision reached and the reason for doing so should be recorded as part of the record of the proceedings.

If the Committee decides that a hearing should take place or continue in the absence of the architect, it must ensure that the hearing is as fair as the circumstances permit. In particular, reasonable steps must be taken during the giving of evidence to test the ARB’s case and to make such points on behalf of the architect as the evidence permits.

The Committee must also avoid reaching any improper conclusion about the absence of the architect and, in the absence of written confirmation to the contrary, assume that all allegations are denied.

 

[1] Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34
[2] R v Jones [2002] UKHL 5
[3] Ibid
[4] Section 14(4)(a) Architects Act 1997
[5] Rule 6, ARB Professional Conduct Committee Rules (2019)

 

 

 

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