Mr J Ross McKay
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
J Ross McKay (049154C)
held on 13 September 2017
Novotel Glasgow Centre Hotel
181 Pitt Street
Ms Emma Boothroyd (Chair)
Mr Roger Wilson (PCC Architect Member)
Mr Stephen Neale (PCC Lay Member)
Mr Stephen Battersby (Clerk to the PCC)
Ms Helen Ransome appeared on behalf of the ARB.
Mr McKay did not attend and was not represented in his absence.
1. In this case, the ARB is represented by Ms Helen Ransome. Mr McKay has not attended this hearing and is not represented.
2. Mr McKay not having attended the hearing, the Committee first considered whether he had been given notice of the meeting. Ms Ransome submitted that notice had been served on the Respondent in accordance with the Rules. Having heard and accepted the advice of the Clerk, the Committee is satisfied that Mr McKay has been properly served with notice of the meeting.
3. The Committee then considered whether to proceed in his absence. The Committee has applied Rule 11 of the Rules, the principles set out by the Court of Appeal in R v Hayward  EWCA 168, R v Jones (Anthony William)  1 AC 1 and Tait v. The Royal College of Veterinary Surgeons  UKPC 34. The Committee has also borne in mind the case of GMC v Adeogba  EWCA Civ 162 reminding itself that “there is a burden on…all professionals subject to a regulatory regime, to engage with the regulator, both in relation to the investigation and ultimate resolution of allegations made against them. That is part of the responsibility to which they sign up when being admitted to the profession.”
4. The Committee has paid particular attention to the following factors in deciding whether it is in the interests of justice to proceed:
(1) The nature and circumstances of the Respondent’s absence and in particular whether the behaviour may be deliberate and voluntary;
(2) Whether, despite the Respondent being absent, he has expressed a wish to be represented at the hearing;
(3) The extent of the disadvantage to the Respondent in not being able to give evidence having regard to the nature of the case;
(4) The seriousness of the allegation;
(5) The general public interest that a hearing should take place within a reasonable period of time.
5. The Committee has exercised the utmost care and caution in reaching its decision, and has carefully considered the overall fairness of the proceedings. It has balanced the potential impact on the Respondent’s livelihood and reputation in hearing the matter today in his absence, as against the public interest in proceeding with the hearing in a timely manner.
6. On 11 August 2017, the ARB wrote to Mr McKay confirming the date and time of this hearing and also sought confirmation as to whether he would be attending. He has not responded to that correspondence. He has neither requested an adjournment of the hearing, nor has he given an explanation for his non-attendance. The Committee noted that there has been no communication from Mr McKay since the date of the decision of the PCC on 3 November 2016.
7. Given the seriousness of the matter before the Committee, the Committee is satisfied that the Respondent has been given an adequate opportunity to make arrangements to appear before the Committee to argue his case in person and that he has chosen to voluntarily absent himself. The Committee saw no evidence that led it to conclude that by adjourning the matter, the Respondent would attend the hearing on any future date and the Committee notes that the Respondent has not sought an adjournment in any event. Looking at the Respondent’s earlier stated intention to retire, the Committee was satisfied that Mr McKay had no intention to attend this or any future hearing. Taking all these factors into account, the Committee has concluded that it is fair and in the interests of justice to hear the case in his absence.
8. On 3 November 2016, a Committee of the Professional Conduct Committee (“PCC”) found Mr McKay guilty of unacceptable professional conduct, pursuant to Sections 14(1) and 14(3) of the Architects Act 1997 (“the Act”). After careful consideration, that Committee concluded that the appropriate sanction was a penalty order in the sum of £2000. The Committee ordered that sum to be paid within 28 days of notice of that decision. On 7 November 2016, the ARB wrote to Mr McKay advising him of the Committee’s findings, the sanction it had imposed and that he could appeal the decision within three months of the date of the hearing. He was also advised of his right to make an application to vary the terms of the order. There was no response to that letter. A further letter setting out the consequences of continuing to fail to pay the penalty order was sent to Mr McKay on 8 December 2016. To date, Mr McKay has not taken any steps to appeal against the PCC’s original findings or penalty. In addition, despite Rule 11(d) of the Rules providing an additional safeguard, namely that an absent Respondent may apply for a rehearing in certain circumstances, Mr McKay has not availed himself of that provision.
9. On 11 August 2017, the ARB wrote to Mr McKay noting that the penalty order had not been complied with. The letter also confirmed his case would be referred back to the PCC for further consideration, and that the PCC had power under the Architects Act to suspend him or erase his name from the Register of Architects.
10. The Committee has borne in mind the adverse impact, in the eyes of the public, on the reputation of both the profession and the PCC were the sanction it had previously imposed to be ignored. The Committee is mindful that the Act permitted, but did not require, the imposition of either suspension or erasure following non-payment of a penalty order. In considering whether it would be proportionate to take either of these steps, the Committee should take account of the likelihood of the penalty ever being paid, the protection of the public and possible damage to the reputation of the ARB, the profession and the PCC were an architect to fail to pay a penalty order. In reaching its decision, the Committee gave careful consideration to all the matters presented by the ARB in its report, and took account of the Clerk’s legal advice when considering the evidence presented and the options open to it. Mr McKay has not made any representations to the Committee.
11. The Committee first considered whether it would be proportionate to apply either of the orders available pursuant to Section 16(4) of the Act or whether to take no further action. The Committee took into account the fact that Mr McKay has neither engaged with the substantive hearing, nor this hearing. In its determination, the original PCC identified that the Respondent had offered no apology and that he had demonstrated very little insight into his failings. In the circumstances, it regarded the prospects of the penalty being paid in full or in part, as minimal. This Committee concluded that the penalty order previously imposed against Mr McKay was therefore insufficient to protect the public and the reputation of the profession and that a further sanction was therefore appropriate and proportionate.
12. The Committee considered whether to impose a suspension order against the Respondent but considered that, given the Respondent’s wilful failure to comply with a sanction imposed by his regulator, that this matter was too serious for such a sanction.
13. Taking into account the potential damage to the reputation of the ARB, the profession and the PCC in the eyes of the public were its sanctions not enforced, the Committee concluded that only an erasure order would be appropriate or proportionate, which order the Committee so makes. The Committee is satisfied that any lesser sanction would undermine confidence in the profession or the ARB as its regulator. The Committee notes that the Respondent is not eligible to apply for re-entry to the profession for a period of two years. Should an application for re-registration be made in due course, those considering that application may wish to take into account whether the Respondent has paid the penalty order originally imposed against him on 3 November 2016.