Mr Benjamin Vivian
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Benjamin Vivian (076311J)
Held on 17 August 2018
Architects Registration Board
8 Weymouth Street
Julian Weinberg (Chair)
Judy Carr (PCC Architect Member)
Stephen Neale (PCC Lay Member)
Rosemary Rollason (Clerk)
In this case, the Board is represented by Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate Ltd.
Mr Vivian has attended this hearing but is not legally represented.
- failed adequately, or at all, to manage or safeguard client records;
- failed to act with integrity in that he knowingly copied confidential records in to a personal storage account;
and that by doing so, he acted in breach of Standards 1 and 4 of the Architects Code: Standards of Conduct and Practice 2017.
The sanction imposed is a reprimand.
Charge and allegations
In this case, the Board is represented by Mr Jonathan Goodwin. Mr Vivian (“the Respondent”) has attended this hearing but is not legally represented. The Respondent faces a charge of unacceptable professional conduct (“UPC”) based on two allegations in relation to breaches of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”) in that:
- He failed adequately, or at all, to manage or safeguard client records;
- He failed to act with integrity in that he knowingly copied confidential records in to a personal storage account.
- Dishonesty is alleged in respect of allegation 1.2
- This case arises out of a complaint made by Mr JN (“the Complainant”), the director of and an architect at LSN Architects, where the Respondent was employed between May and October 2017.
- Following the Respondent’s last day at the office, the Complainant became aware that the Respondent’s computer had been wiped of recent documents viewed and recent sent emails. It was subsequently discovered by restoring a previous backup of the Respondent’s work computer, that it contained syncing software, which the Respondent had installed. This had included a file which included copies of LSN’s practice terms and conditions, templates, policies and other administrative documentation, together with copies of some of LSN fee arrangements, dating from the Respondent’s previous employment while he was a Part 1 student there in 2005.
- It is alleged that within a further file named “Narracotts”, being the Respondent’s previous employer, copies of a number of documents relating to staff members and project files were found, as well as documents relating to the branding of a new Architect’s firm, “Vivian Architects”. The Complainant informed Narracotts of a breach of their confidential files.
- Further investigations were undertaken by a firm of IT specialists, Brandan Computer Solutions. That investigation revealed two further cloud-based backup software systems that the Respondent had installed on to the Complainant’s server, for which permission had not been obtained – megasync and degoo. This, it is alleged, meant that four file sharing systems had been installed on LSN’s system, during the Respondent’s employment, but wiped prior to his departure. Following a reboot of the computer, degoo began to sync but the process quickly stopped. The password was changed remotely.
- The factual allegations, but not dishonesty are admitted.
- In reaching its decisions, the Committee has carefully considered the documentary evidence presented to it in the Report of the Board’s Solicitor and the 43 pages of exhibited documents. The Committee has also had sight of the Respondent’s letter to the Board dated 18 July 2018 responding to the complaint made against him, and has also heard his live evidence. The Committee has accepted the legal advice given by the Clerk. It has had regard to the fact that the burden of proof is on the Board and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies, irrespective of the Respondent’s admission.
Findings of Fact
- The Committee makes the following finding of facts:
- On the basis of the documentation in the Board’s Solicitor’s report, and the Respondent’s admission to the facts alleged, the Committee finds the facts proved.
- The Respondent accepted in his letter of 8 December 2017 to the ARB that “I do now recognise that, in making copies of electronic project folders for the purpose of personal portfolio creation, there is a potential for confidential client information being transferred as part of this process….I can see that this does represent a short coming under Standard 4.3 of the Architect’s Code along with my duties towards data protection for safeguarding confidential client information”.
- Standard 4 of the Code states (amongst other things):
Competent management of your business
4.3 You should ensure that adequate security is in place to safeguard both paper and electronic records for your clients, taking full account of data protection legislation, and that clients’ confidential information is safeguarded.
- By reason of the facts found proved, the Committee finds that the Respondent acted in breach of Standard 4 of the Code.
- On the basis of the documentation in the Board’s Solicitor’s report, and the Respondent’s admission to the facts alleged, the Committee finds the allegation proved.
- The issue of integrity was considered in the recent Court of Appeal decision in Wingate, Evans and Malins v SRA (2018) EWCA Civ 366. It is now an established principle that integrity and dishonesty are separate issues and the Committee has addressed them individually. Dishonesty and lack of integrity cannot be treated as synonymous; integrity was about more than simply acting honestly. In considering the concept of integrity, the following observation was made in the above decision:
“In professional codes of conduct, the term ‘integrity’ is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members….. The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards. …. Integrity connotes adherence to the ethical standards of one’s own profession. That involves more than mere honesty…. to take one example, a solicitor conducting negotiations or a barrister making submissions to a judge or an arbitrator will take particular care not to mislead. Such a professional person is expected to be even more scrupulous about accuracy than a member of the general public in daily discourse.”
- Standard 1 of the Code states:
Honesty and Integrity
1.1 You are expected at all times to act with honesty and integrity and to avoid any actions or situations which are inconsistent with your professional obligations. This standard underpins the Code and will be taken to be required in any consideration of your conduct under any of the other standards.
- In the circumstances, the Committee finds that the Respondent, in acting without integrity, acted in breach of Standard 1.
- The Committee then went on to consider whether the Respondent acted dishonestly.
- The Respondent accepted in his letter of 8 December 2017 that “I acknowledge that attempting to view letters for other members of staff falls well below the levels of honesty and integrity expected of me under Standard 1.1 of the Architect’s Code…” However, it is the Respondent’s case as set out in his letter of 18 July 2018 to the Board, and in his oral evidence, that his actions were not dishonest because:
19.1 Copying the data in question was a foolish and fallible mistake at a time of curiosity when he felt insecure at work, and the files were locked and password protected so were in no danger of being viewed by others. There was no evidence before the Committee that, beyond wanting to know his colleagues’ salaries, that any use was made of those documents;
19.2 At the time, he did not consider that the project files were confidential or that he was being dishonest. However, he accepted in evidence that the documents remained the property of LSN and that he should not have copied them without permission. His intention was to obtain precedents to enable him to produce the best possible work for clients and the firm, and was a useful, convenient and time saving practice;
19.3 At the time of obtaining copies of LSN documents some 13 years previously, he was not being dishonest as the IT climate was very different when copies of documents were routinely put on USB sticks;
19.4 Because LSN was a small practice, he felt comfortable linking his new work computer with his cloud storage to create an exact replica of his home computer’s personal documents for convenience. Because of this familiarity, he did not think about asking for permission to do what he did. When he left LSN, he did not want to leave any trace of his personal data on his work computer. He stated in evidence that LSN had no policy regarding computer use, that adding software on to work computers was commonplace (albeit that it was not syncing software) and that, being a small practice, copying files for future precedents would be considered acceptable;
19.5 In the absence of an office policy in relation to emails, he adopted the standard procedure used at Narracotts.
19.6 At the time, he believed his actions were reasonable, and that he did not act dishonestly.
- In considering whether the Respondent acted dishonestly, the Committee has applied the test for dishonesty as set out in Ivey v Genting Casinos (UK) Ltd t/a Crockfords  UKSC 67.
“When dishonesty is in question the fact-finding tribunal must first ascertain subjectively the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the objective standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
- In the circumstances, in applying the first limb of the Ivey test, the Committee accepts that the Respondent genuinely believed that in respect of colleagues offer letters from Narracotts, his intention was merely to see what they were earning. In respect of other files synced by the software both there and at LSN, the Committee accepts that he genuinely believed that the files in question would form the basis of a precedent bank to facilitate future work and create a portfolio for career development, and that this was a common practice. He now accepts that the files remained the property of LSN. There is no evidence before the Committee that the Respondent sought to pass off designs completed by others as his own, or other malevolent reason for copying the files. Whilst the Respondent should undoubtedly have taken the precaution of seeking explicit consent for copying the files in question, for which the Respondent accepts that his actions lacked integrity, the Committee finds that the Respondent’s actions would nevertheless objectively not be judged as dishonest by the standards of ordinary decent people. The Committee therefore finds that, in acting as alleged, the Respondent did not act dishonestly and therefore makes no such finding.
- In the circumstances, the Committee finds the facts of allegation 1.2 proved in relation to a lack of integrity alone.
Finding on Unacceptable Professional Conduct
- Having found the allegation proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC. UPC is defined as conduct which falls short of the standard required of a registered person. Any finding of UPC is a matter for the Committee’s independent judgment.
- In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the Clerk. The Committee recognises that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an Architect.
- The Committee recognises that any failing should be serious, such that it would attract a degree of opprobrium. The Committee has borne in mind the case of Spencer v General Osteopathic Council  EWHC 3147 (Admin) and accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions (The Queen on the Application of Dr Malcolm Noel Calhaem –v- General Medical Council  EWHC 2606 (Admin). Misconduct, which is akin to UPC, was defined in the case of Roylance v GMC  1 AC 311 as, “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”. The Committee also recognises that any failing must be serious (Vranicki v Architects Registration Board  EWHC 506 Admin).
- The Committee has taken into account all the evidence before it together with both Mr Goodwin’s and the Respondent’s submissions.
- However, so far as the matters found proved and the corresponding breaches of the Code are concerned, the Committee finds that the Respondent’s failings represent conduct falling below the standard expected of a registered Architect. Compliance with Standard 1 goes to the heart of what it means to be a professional. Failing to act with integrity amounts to a serious falling short of an Architect’s core obligations. Similarly, Architects must be relied upon to safeguard client records and to keep client information confidential and the Respondent’s actions marked a serious falling short of what is expected in this regard. Whilst not, in the Committee’s view, amounting to dishonesty, the Respondent should undoubtedly have sought explicit consent for his actions, and his decision not to do so was ill judged, and demonstrative of a lack of integrity as previously found.
- The Committee therefore concluded that the matters found proved represent serious departures from the standard expected of a registered Architect. Those failings, the Committee has concluded, both individually and collectively, are sufficiently serious to amount to UPC, which finding the Committee therefore makes.
- The Respondent addressed the Committee in mitigation.
- The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board, and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Clerk. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the Indicative Sanctions Guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.
- Having taken into account the Respondent’s submissions, the Committee has identified the following mitigating factors:
31.1 that the Respondent has no adverse regulatory history in a twelve year career;
31.2 he has engaged in the regulatory process, cooperated with the Board, and made admissions to the facts that were proved;
31.3 there has not been any release of confidential client information into the public domain;
31.4 he has recognised and apologised for his failings, and has considered the experience a salutary lesson in compliance;
31.5 there was no direct risk of harm to the public;
31.6 the Committee accepts that the matters before it arose from poor judgment rather than from any entrenched issues that could pose an ongoing risk to the public;
31.7 he has not personally gained financially from his failings;
31.8 he has provided written testimonials attesting to his character and professionalism;
31.9 he has stated that, as a result of this hearing, he has addressed his failings by taking corrective action in that he has undertaken CPD training in respect of GDPR and periodically reviews his data integrity to avoid a repetition of the failings that have brought him before this Committee.
- The Committee has not identified any aggravating factors.
- In the circumstances, the Committee considers that, despite the fact that this case relates to integrity issues, the risk of repetition of his UPC is low.
- The Committee notes that the matters found proved are serious to the extent that the Respondent’s failings diminish both his reputation, and that of the profession generally. Integrity is a core quality that any member of the public should be able to expect from a professional, as is the obligation to respect confidentiality. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
- The Committee first considered whether to impose a reprimand. Given the mitigating factors identified and the low risk of repetition, the Committee considered that such a sanction was appropriate and proportionate. The Committee therefore imposes a reprimand. Such a sanction adequately reflects the seriousness of the UPC found proved and would adequately protect the public and the public interest.
- The Committee then considered whether to impose a penalty order and concluded that such a sanction would be inappropriate and disproportionate sanction to impose given the absence of aggravating factors and the suitability of a reprimand.
- That concludes this determination.