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Mr Anthony Browne

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

 

In the matter of

Mr Anthony Browne (054164H)

Held on 12 June 2018

At

Architects Registration Board

8 Weymouth Street

London

W1W 5BU

———-

Present

 

Mr Paul Housego (Chair)

Mr Roger Wilson (PCC Architect Member)

Mr Martin Pike (PCC Lay Member)

Ms Rosemary Rollason (Clerk)

 

 

———–

ARB was represented by Ms Nicola Hill of Kingsley Napley LLP.

Mr Browne attended the hearing and was represented by John Greany of 3 Raymond Buildings.

 

The PCC found Mr Browne guilty of unacceptable professional conduct in that he:

1. Was disqualified from acting as a company director as of 12 September 2016;

2. Failed to report to the Architects Registration Board that

a) He was the director of M & B Architects Limited, which was wound up on 9 March 2015; and

b) He was disqualified from acting as a company director from 12 September 2016;

The sanction imposed was a two year suspension from the Register of Architects.

Charge and allegations:

1. Mr Browne appears before the Professional Conduct Committee (“the Committee”) of the Architects Registration Board (”the ARB”) to respond to allegations of unacceptable professional conduct (“upc”). The ARB give the following particulars:

• That the Respondent was disqualified from acting as a company director as of 12 September 2016;
• That the Respondent failed to report to the Architects Registration Board;
a) that he was the director of M & B Architects Ltd, which was wound up on 09
March 2015;
b) that he had been disqualified from acting as a company director from 12
September 2016

2. The ARB refer to the Architects Code: Standards of Conduct and Practice 2010,
Standard 9
Maintaining the reputation of architects
You should ensure that your professional finances are managed responsibly.
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;
• are made the subject of a court order disqualifying you from acting as a
company director;
• are made the subject of a bankruptcy order;
• are a director of a company which is wound up (other than for amalgamation or reconstruction purposes);
• make an accommodation with creditors (including a voluntary arrangement);
• fail to pay a judgment debt.

3. 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.

Complaint
4. A member of the public brought to the attention of ARB the winding up of the company and the disqualification undertaking.

Burden and standard of proof
5. The facts are admitted. It is still for the Committee to make findings of fact on the balance of probabilities, the burden of proof being on the ARB. A finding of unacceptable professional conduct requires the Committee to judge that conduct to be serious, and there is no burden or standard of proof.

Defence
6. The facts are admitted, as is upc. There would be mitigation put forward.

Evidence
7. The Committee perused the report of the Board’s solicitor with accompanying documents running to some 476 pages.

ARB submissions
8. The solicitor to the ARB took the Committee through the report sent to the Committee. The submissions of ARB as to upc are set out in the report to the Committee, and were developed orally. These are matters specifically covered in the Code. That a company director has accepted that he has run a company so badly that he accepts that he must be disqualified from holding such an office is inevitably damaging to the profession. So too is the failure to report. The obligation is clearly set out in the Code, and there was no report for 2 years (winding up) and 9 months (disqualification), and it was a former client who reported it, not Mr Browne. These were serious matters because the reputation of the profession was adversely affected by such a substantial failure to manage the finances of a company. While there was no allegation of lack of integrity there was great adverse effect on the reputation of the profession. Regulation relied on professionals reporting breaches and was undermined where, as here, 2 years had gone by with no such report.

9. As to mitigation, the explanations seemed to amount to reasons the lifeboat of a property joint venture had foundered, rather than accounting for the shipwreck that required the launch of a lifeboat.

Submissions on behalf of Mr Browne
10. The facts were admitted and it was accepted to be upc. There would be submissions as to mitigation.
Clerk’s advice
11. The Committee accepted the advice of its Clerk.

Findings of fact
12. Mr Browne traded through a limited company. On 9 March 2015 the company was wound up on a petition of HMRC dated 16 December 2014. HMRC was owed PAYE and Class 1 national insurance and student loan repayments. These totalled £241,583.70. The failures to pay commenced 5 April 2013.

13. On 12 September 2016 a period of 4 years disqualification as a company director commenced. This was by way of undertaking under S7A of the Company Director’s Disqualification Act 1986, signed by Mr Browne on 18 August 2016 and on behalf of the Secretary of State on 22 August 2016.

14. This document records that:
“I caused M & B Architects Ltd (“M & B”) to trade to the detriment of Her Majesty’s Revenue and Customs (“HMRC”) in respect of value added tax (“VAT”) and to my own benefit between 1 November 2012 and 9 February 2015, the date the company ceased trading and in respect of Pay As You Earn (“PAYE”) and National Insurance Contributions (“NIC”) and to my own benefit between 5 May 2012 and 9 February 2015, resulting in total liabilities to HMRC £286,272 at liquidation.
VAT
• VAT returns were filed for all quarters up to 30 September 2014.
• No VAT returns were filed for the quarters ended 31 December 2013 and 31 March 2015. HMRC raised assessments in their absence.
• Payments were made in full for all quarters up to 30 June 2012. No payments were made against the remaining VAT quarters.
• At liquidation, information provided by HMRC shows that M & B owed £175,180 in respect of VAT and surcharges from the quarter ended 30 September 2012 onwards.
PAYE/NIC
• M & B submitted the required returns to HMRC for the tax year 2012/13 showing a PAYE/NIC liability of £41,483, against which payments totalling £23,820 were made.
• Information provided by HMRC for the tax year 2013/14 shows a PAYE/NIC liability of £55,099.
• Information provided by HMRC’s tax year 2014/15 shows a PAYE/NIC liability of £38,329.
• At liquidation M and B had an outstanding PAYE/NIC liability of £111,091.
Comparative treatment/director benefits
• Professionally preferred prepared accounts for M & B covering the period 1 January 2013 to 31 December 2013 records that trade and “other” creditors were owed £163,359 and HMRC was owed £155,234.
• From 1 January 2014 to 9 March 2015, the date of liquidation, monies owed to trade and other creditors decreased by £136,436, from £163,659 to £26,923. No directors loan account (“DLA”) was recorded in the accounts to 31 December 2013 however from 1 January 2014 I had the benefit of £202,170 personally. During the same period monies owed to HMRC in respect of VAT and PAYE/NIC increased by £134,351 from £155,234 to £289,585.”

15. The winding up and disqualification was brought to the attention of ARB on 29 June 2017 by a former client of the company. Mr Browne had not reported these matters to ARB.

16. The facts of the winding up and of the disqualification are proved by the documents submitted, and Mr Browne admits these matters are factually correct. There was no report submitted to ARB and Mr Browne accepts that none was made.

Unacceptable professional conduct
17. The Committee accepted the submissions of the solicitor for ARB on the question of upc. These were serious breaches of 9.1 and 9.2 of the Code.

Discussion and conclusion
18. Accordingly the Committee finds the allegation of upc and the particulars on which it is based to be proved.

Submissions of the ARB
19. The ARB regards the question of sanction as a matter for the Committee bearing in mind the indicative sanctions guidance.

Mitigation
20. Mr Browne gave evidence. A former colleague gave character evidence, and the co-founder of the limited company provided a supportive letter. There has been no previous disciplinary finding against Mr Browne.

21. On behalf of Mr Browne, there were lengthy submissions, which developed the following themes:
– there was no lack of integrity alleged
– there was a 30 year career history which was both blameless and meritorious
– he was a positive role model and citizen, with worthy roles in the territorial army and in
Zimbabwe as a wild life ranger
– he had been fully co-operative with all those investigating: the Insolvency Service, HMRC,
the Official Receiver and ARB
– he fully accepted blame, was remorseful and had insight
– he was certain that he would never again be a businessman but work only in design and
planning work
– personal stressors affecting how he viewed matters
– that the disqualification was at the lower end, 4 years of a maximum of 15, and did not
reflect any criminal activity.
Sanctions
• The primary purpose of sanctions is not to be punitive (though this may be their effect) but to protect members of the public, to maintain the collective reputation of the profession (and the ARB as its regulator), and to declare and uphold proper standards of conduct and competence. Sanctions also help ensure that the profession better understands the importance of professional standards.

• The Committee has considered the Indicative Sanctions Guidance. Appearance before this Committee is in itself salutary. The Act does not require the Committee to impose a sanction in every case where a guilty finding is reached, so the Committee may choose to make no disciplinary order. If it decides to impose a sanction, the Committee commences at the lowest sanction, and only if it decides that sanction is not appropriate does it move to the next level of sanction. Having arrived at a sanction that it is minded to impose the Committee then reviews the next sanction above so as to satisfy itself that this would be too severe a sanction before arriving at a final conclusion. If the Committee decides on a fine, it is limited by the Architects Act 1997 to £2500.

• In all the particular circumstances of this case we consider that a sanction is appropriate because of the need to declare and uphold professional standards.

• The Committee identified the following mitigating and aggravating factors:
Aggravating
• While the first period of non-payments was negligent, after the co-founder left the company, he being in charge of financial arrangements, the latter period involved intentional non-payment of VAT, NI, student loan payments, PAYE and company tax, so that nothing due to the government was paid.
• The period of non-payment was over 2 years.
• Mr Browne personally owed £120,000 in respect of a matter unconnected with the company. He paid that debt from money he took from the company. The removal of this money meant that the company could not pay VAT NI and PAYE, which was all money collected on behalf of the government. This means that Mr Browne intentionally used taxpayer’s money to pay his personal debt of £120,000.
• The total amount is very large – £289,585.
• In the period when money was withheld from the public purse, the total amount of benefit he personally received was £202,170.

Mitigating
• Mr Browne had an intention to reintroduce the money from the results of another property development, and had that occurred his evidence was (which the Committee accepts) he intended to reintroduce that money and settle the liability. He undertook litigation to try to achieve that objective.
• The points made in mitigation are accepted by the Committee, and are of varying weight.
• The indicative sanctions guidance states

Reprimands
Where the Committee decides that it is appropriate to impose a sanction in relation to a
guilty finding, a reprimand is the lowest sanction that can be applied. It may be used in
relation to those offences at the lower end of the scale of seriousness, where and where it
would be appropriate to mark the conduct or competence as being unacceptable.

This sanction may be considered where the following factors are present (this list is not
exhaustive):

• Evidence that the conduct or competence has not seriously affected clients/the public
• Insight into failings
• Genuine expression of regret
• Corrective steps taken
• Previous good disciplinary history

Like all disciplinary orders a reprimand will remain permanently on an architect’s record, but
only published for two years after the date of sanction.

Penalty orders
Penalty orders are fines of up to level 4 on the standard scale of fines for summary offences, currently set at £2,500. Only one penalty order can be issued per charge, and under the Act only two charges can be brought (unacceptable professional conduct and/or serious professional incompetence). It may be used in relation to those offences too serious to warrant a reprimand, or where a lack of remorse or understanding is displayed.

This sanction may be considered where the following factors are present (this list is not exhaustive):
• Offence is too serious to warrant a reprimand
• Limited or lack of remorse
• Architect has benefitted financially from the offence

The Committee will specify the period within which the sum must be paid, and a failure to satisfy the order may lead to it being replaced by a suspension or erasure order. A penalty order is published for two years after the date of sanction.

Suspension orders
A suspension order may be imposed by the Committee for serious offences, but not so grave as to warrant erasure from the Register. Suspensions are for a maximum period of two years and the architect is automatically reinstated to the Register at the end of the suspension period. Any individual suspended from the Register cannot use the title ‘Architect’ in business or practice.
This sanction may be considered where the following factors are present (this list is not exhaustive):
• An offence so serious that a reprimand or penalty order would be insufficient to protect the public or the reputation of the profession
• Behaviour that is not fundamentally incompatible with continuing to be an architect
• No evidence of entrenched integrity issues
• The PCC is satisfied that the behaviour is unlikely to be repeated
• Conduct capable of being rectified
• Non-payment of a previously imposed penalty order

A suspension order is publicised for the period of suspension and a subsequent two years from the date of reinstatement.

Erasure orders
An erasure order may be imposed by the Committee for those offences that are so serious that only a permanent removal from the Register will protect the public and/or the reputation of the profession. Erasure from the Register is permanent, though an application may be made to the ARB for re-entry after no less than two years. The Committee may make a recommendation as to a minimum period of time before such an application should be considered.
This sanction may be considered where the following factors are present (this list is not exhaustive):
• A serious criminal offence
• Behaviour that is fundamentally incompatible with continuing to be an architect
• The Committee lacking confidence that a repeat offence will not occur
• Dishonesty or a severe lack of integrity
• A persistent lack of insight into the seriousness of actions or consequences
• Non-payment of a previously imposed penalty order

Any individual erased from the Register is not permitted to use the title ‘Architect’ in business or practice (nor any reference to membership or fellowship of RIBA). An erasure order is publicised for a period of five years after the date of sanction. ‘The reputation of the profession is more important than the fortunes of any individual member’. (Bingham L.R) Bolton v Law Society [1994]

Considerations and conclusions
37. While the Committee has considered carefully all that has been said, some of the mitigation points are of little weight. Personal stressors are not of any weight when considering rational and wrongful intentional actions such as these. Mr Browne knew exactly what he was doing. Being a good citizen is not a reason to impose a lesser sanction by reason of professional misconduct. Most liquidations do not involve disqualification as a director, so that the period of disqualification was 4 years is not substantial mitigation: the imposition of any disqualification order is a matter of magnitude.

38. The essence of this case is that Mr Browne intentionally took £289,532 of public money and utilised £202,170 for his own benefit. This is so serious that the Committee did not consider a reprimand or a penalty order reflected the seriousness of the case.

39. The Committee has taken into account that the conduct cannot be rectified – the £289,532 will never be paid.

40. The Committee would have erased Mr Browne but for the fact that he had intended to replace the money from a personal property development. He was (entirely wrongly) effectively borrowing money from the taxpayer in the hope of paying it back. He was not intending permanently to deprive the state of the money. The other points put in mitigation have also been borne in mind.

41. While, for this reason, not erasing Mr Browne from the register, it is necessary (and proportionate) to impose a period of suspension of the maximum the Committee can impose.

42. Accordingly, the Committee suspends Mr Browne from the register for a period of 2 years starting from today.

 

 

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