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Mr Michael Irwin

THE ARCHITECTS REGISTRATION BOARD

 PROFESSIONAL CONDUCT COMMITTEE

 In the matter of

 Mr Michael Edward Irwin (059120C) and Mr Jeremy Peter Hutchinson (070658B)

held on

17 October 2016

at

Architects Registration Board

8 Weymouth Street

London

W1W 5BU

—————–

Present:

Paul Housego: Chair

Stephen Neale: PCC Lay member

David Kann: PCC Architect member

Mr Stephen Battersby: Clerk to the PCC

—————–

 

Iain Miller Solicitor for ARB

Stephen Graham, Solicitor of Ward Hadaway for the respondents

 

 

 

 

Allegations

 

  1. Mr Irwin appears before the Professional Conduct Committee (“the Committee”) of the Architects Registration Board (“the ARB”) to respond to allegations of unacceptable professional conduct (“upc”). References in the allegations to the “architects code” are to the Architects Code: Standards of Conduct and Practice 2010 (“the Code”). References in the allegations to “Gelder & Kitchen” are to Gelder & Kitchen LLP (“G&K”).

 

  1. The ARB allege that: –

 

“1.1 On an unknown date in or about May 2013, he knowingly allowed unauthorised copies of Gelder & Kitchen LLP files to be stored on the premises of Harris Associates Ltd and to be accessed by staff, and failed to put processes in place to prevent them being used in a planning application; and in doing so, he failed to act with integrity.

 

Contrary to standard 1 of the architects code.

 

1.2 He permitted pictures of Gelder & Kitchen projects to be displayed on the website of his current practice, Harris Irwin Associates Ltd, without permission and without crediting Gelder and Kitchen.

 

Contrary to standard 3 of the architects code.

 

And by reason of the above matters, he is guilty of unacceptable professional conduct.”

 

  1. Mr Hutchinson also appears before the Committee to respond to allegations of upc. The allegations made by the ARB against Mr Hutchinson are:

 

“1.1 On an unknown date in or about May 2013, upon leaving his employment at Gelder & Kitchen LLP Construction Consultants, he knowingly took copies of Gelder & Kitchen files to which he was not entitled; and in so doing he failed to act with honesty and integrity.

 

Contrary to standard 1 of the architects code.

 

1.2 He permitted pictures of Gelder & Kitchen projects to be displayed on the website of his current practice, Harris Irwin Associates Ltd, without permission and without crediting Gelder & Kitchen.

 

Contrary to standard 3 of the architects code.

 

And by reason of the above matters, he is guilty of unacceptable professional conduct.”

 

  1. Mr Irwin and Mr Hutchinson each admit the first allegation against them, and while admitting that the website of Harris Irwin Associates Ltd (“HIA”) contained the photographs referred to in the second allegations, deny the second allegations.

 

The Code

 

  1. The preamble to the Code states that any failure to comply with the provisions of the Code is not of itself to be taken as constituting unacceptable professional conduct or serious professional incompetence, but shall be taken into account in any disciplinary proceedings before the Committee.

 

  1. It also states that architects are expected to be guided in their professional conduct and professional work by the spirit of the Code as well as by its express terms. The fact that a course of conduct is not specifically referred to in the Code does not mean that it cannot form the basis of disciplinary proceedings.

 

  1. Each case is judged on its facts, and there may be circumstances in which unacceptable professional conduct or serious professional incompetence is found even where there has been no clear breach of the express terms of the Code. Not every shortcoming, or failure to meet the Standards expected by the Code, will necessarily give rise to disciplinary proceedings.

 

  1. The relevant provisions of the Code are:-

 

Standard 1

Honesty and Integrity

A             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.

B             You should not make any statement which is contrary to your professional opinion or which you know to be misleading, unfair to others or discreditable to the profession.

C             Where a conflict of interest arises you are expected to disclose it in writing and manage it to the satisfaction of all affected parties. You should seek written confirmation that all parties involved give their informed consent to your continuing to act. Where this consent is not received you should cease acting for one or more of the parties.

D             Where you make or receive any payment or other inducement for the introduction or referral of work, you should disclose the arrangement to the client or prospective client at the outset.

 

 

Standard 3

Honest promotion of your services

A             You are expected to promote your professional services in a truthful and responsible manner.

  1. In advertising and promoting your professional services you should comply with the codes and principles applying to advertising generally. These include those of the Advertising Standards Authority or any other body having oversight of advertising standards in various media.

C             The business style of a practice should not be misleading.

 

D             If you are a principal in a practice you are expected to ensure that all architectural work is under the control and management of one or more architects, and that their names are made known to clients and any relevant third party. You should notify your client promptly of any change in the architect responsible for the work.

 

Summary

 

  1. The respondents were both employed at G&K’s Richmond office. They left and both are now directors of HIA. On leaving G&K Mr Hutchinson made a backup copy of all the Richmond Office practice files of G&K and took it with him. Mr Irwin permitted Mr Hutchinson to keep that copy in the safe at HIA, where on occasion Mr Hutchinson referred to it when acting for clients who had moved to HIA from G&K, the third director of HIA, Mr H utilised drawings from that back up in a planning application, and Mr Irwin also accessed the backup on one occasion. Those drawings were complete, and had G&K’s name upon them.

 

Complaint

 

  1. A principal at G&K was asked by a supplier to the client of HIA about the project on which Mr H was working, having got the name from the drawing which was on the planning website, and so became aware of the use of G&K material. He complained to the ARB, raising also the second allegations, on the basis that these were G&K projects.

 

Burden and standard of proof

 

  1. The ARB is required to prove the allegations to the civil standard; that it is more likely than not that any event occurred. That is a single unwavering standard of proof, though the more unlikely an allegation the more cogent the evidence required to prove it. There is no requirement for the respondents to prove anything. The Committee has in mind throughout its deliberations that the right to practise a profession is involved in these proceedings and proceeds upon the basis that the Human Rights Act 1998 will apply. In particular the respondents have the right to a fair trial and to respect for his private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated within UK law by that Act. The question of whether or not any facts found proved amount to upc is a matter for the Committee’s judgment, and there is no burden of proof. A finding of unacceptable professional conduct requires the Committee to judge that conduct to be serious.

 

Preliminary matters

 

  1. Allegation 2 was withdrawn.

 

Defence

 

  1. Both Mr Irwin and Mr Hutchinson admitted the first allegation they faced. (They had each denied the second).

 

Evidence

 

  1. The Committee perused the report of the Board’s solicitor with accompanying documents running to 79 pages. The Board called no live evidence, given the admissions. The respondents each provided personal statements evidence from others and gave oral evidence on oath in mitigation (as did the third director of HIA) and were cross examined. The Committee also asked them some questions.

 

Findings of fact

 

  1. The respondents are both long established and reputable architects. Mr Irwin had his own practice. Both he and Mr Hutchinson joined G&K’s Richmond office. They were not partners in G&K. Mr Irwin “mothballed” his practice but did not close it down. It became HIA. Both Mr Irwin and Mr Hutchinson brought work to G&K from their previous connections. Lately there was no G&K partner resident at Richmond.

 

  1. The Committee heard much evidence about the unravelling of the Richmond office of G&K, with the respondents seeking to show that this was the responsibility of the partners in G&K, and G&K denying this. The reasons why those in the Richmond office left and the re-establishment of HIA are not germane to the issues to be determined by the Committee.

 

  1. Mr Hutchinson was responsible for taking a daily backup of the practice server. Before he left G&K, in May 2013, he took an extra copy of the backup of the practice’s project files on an external hard drive and retained it. After leaving a previous practice he not been able to access any of the work he had done while at that practice. He did not want that to happen again, and as his (and others’) departure from G&K was not entirely on good terms he feared that history might repeat itself. In particular in 2011 one major client had stated that if the partner responsible for the Richmond office continued to oversee the practice’s work for that client they would go to another practice. Mr Hutchinson passed on this information, and a different partner supervised the Richmond office thereafter. Mr Hutchinson reasonably concluded that the partners in G&K were not disposed to be helpful to HIA, or to him personally.

 

  1. Mr Irwin, who had left G&K in November 2012 to resume at HIA, did not know that Mr Hutchinson intended to do this, or that he had done so, until later on, when both were directors in HIA, when Mr Hutchinson asked Mr Irwin if the backup could be kept in HIA’s safe. Mr Irwin was uneasy at the whole idea of retaining the backup, but agreed.

 

  1. The safe was not accessible to staff of HIA. There are, and were, 3 directors of HIA. They are the respondents and Mr H, who is not an architect. He had been with the Rosner Partnership until it merged with G&K in 2000. Mr Hutchinson was with the DKS Architects, and also joined G&K in 2000.

 

  1. There was no resident partner of G&K at the Richmond office.

 

  1. When the respondents had moved to HIA, several of their clients followed them there. The move of the clients to HIA is not the subject of any allegation or criticism. Some of them had been brought to G&K by the respondents, and the clients regarded themselves as the clients of the respondents and not of the particular firm at which they worked.

 

  1. The backup remained in the safe throughout. Mr Hutchinson had recourse to it on a number of occasions, 15 in total, from June 2013 to 2015. On each occasion it was a matter such as to check a detail shown on a plan, to see if he could locate a contractor’s telephone number, to check whether a particular item had been included in a tender package, checking whether an item in a snagging list was reported to have been attended to, and so on. Mr Irwin also accessed the backup on 23 July 2014 and extracted a floor plan from it.

 

  1. Mr H was asked by Barchester Healthcare Ltd to keep alive some planning permissions obtained by him when at G&K. Mr H had been involved with Barchester Healthcare when with the Rosner Partnership before joining G&K, and they had followed him to HIA. Without speaking to Mr Irwin or to Mr Hutchinson, Mr H accessed the backup for the original plans, and submitted new planning applications using them as pdf attachments, complete with the details of G&K as the drawer of the plans.

 

  1. A supplier to Barchester Healthcare had a query about the plan, and contacted G&K, having seen the plans on the planning portal with their name on them.

 

  1. None of the three discussed their access to the backup with either of the others.

 

ARB submissions

 

  1. Mr Miller narrated the history of the matter for the Committee, as the allegations were admitted. He accepted that there had been full and early admissions in respect of the allegations admitted, and that the mischief was the taking and retaining of the backup rather than of the use made of it.

 

Submissions on behalf of the respondents

  1. These were made in mitigation and are set out below.

 

Discussion and conclusion

  1. The Committee finds the first allegation against each respondent proved on admission. The Committee noted that dishonesty, admitted by Mr Hutchinson, involves the two stage test set out in Twinsectra Ltd -v – Yardley & Others [2002] UKHL 12. The two stage test is that honest and reasonable people would consider the actions dishonest, and that, when he did those actions, he knew that by those standards it was dishonest. A lack of integrity admitted by both Mr Hutchinson and by Mr Irwin involves conduct which conflicts with the professional obligation to have steady adherence to a moral or ethical code

 

Mitigation

 

  1. Mr Graham spoke in mitigation. He stressed the reasons for imposing sanctions. There was no punitive purpose in the imposition of sanctions. There was no issue of incompetence or of protection of the public. One was left with the proper standards of the profession. In the list of aggravating factors none applied, whereas all of the mitigation factors applied. In particular there was contrition and remorse, full and early admission and complete cooperation with the ARB. There was no benefit to them from these actions. They had not sought to reduce the seriousness of them in any way. For Mr Irwin he produced testimonials and references from several clients and others, including from the assistant property manager of Diocese of Middlesbrough, the Planning and Development Manager of Richmondshire District Council, and a senior design manager of Galliford Try NE. For Mr Hutchinson there were also testimonials and references including from the same assistant property manager in the Diocese of Middlesbrough. Those giving the references knew of the reason for the request. There has been no previous disciplinary finding against either respondent. A personal statement from Mr Hutchinson stated that since the matter arose he has had barely a single night’s sleep not disturbed by worry about this matter, and expressed his remorse at his actions, and that his reason (worry at loss of his work over many years at G&K would be lost to him) was, while genuine, not offered as an excuse. Mr Irwin’s personal statement was similar.

 

Sanctions

 

  1. 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.

 

  1. 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 for the charge of upc.

 

  1. The Committee noted that it may not be appropriate to apply cases involving other professions as directly comparable.

 

  1. In all the particular circumstances of this case the Committee decided that a sanction is appropriate because of the need to declare and uphold professional standards. Questions of honestly and integrity will almost always require a sanction to be imposed.

 

  1. The Committee identified the following mitigating and aggravating factors:

 

  1. For the admitted allegations:

 

  1. The aggravating factors are that a lack of integrity and a finding of dishonesty are of themselves serious matters, dishonesty being even more serious than of lack of integrity. In Mr Hutchinson’s case the removal of the entire project database of G&K (not just work in which he had involvement) is noteworthy, however the Committee also noted that the use made of the backup disc was primarily as a time saver and a cost saver for themselves and for their clients.

 

  1. In the case of Mr Hutchinson, an aggravating factor the use by him of the material on multiple occasions, and for Mr Irwin that his single use of data from the backup was after an interval in time.

 

  1. The mitigating factors are:
  • the intention was not to do harm to G&K nor for financial advantage
  • there have been full and early admissions
  • there has been full cooperation with the investigation
  • there has been no harm or detriment to clients
  • there is no public protection issue
  • there is insight and remorse and apology, all of which the Committee considers genuine
  • there is little or no chance of repetition
  • there have been good testimonials and references, and disclosure to clients
  • both have an unblemished career history
  • the actions are out of character
  • the matters of which the Committee has heard are not indicative of people who fundamentally lack honesty or integrity
  • the use to which the information from the back-up was put was only for ex clients of G&K who had already transferred to HIA, and not for any other client of G&K. It was not used to induce clients to move away from G&K to HIA. The information used was in order to save the client money, and in that sense might have been contrary to HIA’s own interests, as they might have charged the client to reproduce the information utilised
  • there was no attempt to conceal the use of the plans, which were submitted to a public planning portal complete with G&K attribution (which is how the matter came to light)
  • the clients (including a Diocese of the Church) remain with HIA while knowing of this matter, and the practice has declared this to all major clients
  • for Mr Irwin, his initial reluctance to agree to the storage of the disc, and that he was not involved in the obtaining of the backup and was ignorant of it until after the event
  • for Mr Hutchinson, the motivation for taking the backup was not primarily illicit but to preserve work of his own, he having previously lost such work when with a previous employer, and there being no easy way to copy only work relating to his own projects, and with good reason to think that G&K would not be helpful to him in the future

 

  1. The indicative sanctions guidance states:

 

Reprimands

  1. Where the PCC 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.

 

  1. 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

 

  1. 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.

 

  1. The Committee did not consider that a reprimand would be appropriate, given that the respondents admit lack of integrity in the case of Mr Irwin and dishonesty in the case of Mr Hutchinson.

 

Penalty orders

  1. 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.

 

  1. 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

 

  1. 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

  1. 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.

 

  1. 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

 

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

 

Erasure orders

  1. 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.

 

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

 

  • A serious criminal offence (not applicable here)
  • 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 (not applicable)

 

  1. 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.

 

Decision

 

  1. While all the criteria for a reprimand are met in both cases, allegations of lack of integrity and of dishonesty are too serious for a reprimand. The Committee considered penalty orders, for this reason.

 

  1. The Committee looked at the guidance on suspension orders. The respondents’ actions, and particularly the mitigation, mean that the behaviour, while serious, is not fundamentally incompatible with either continuing to be an architect. While there is evidence of integrity issues, and dishonesty, there is, in the Committee’s judgment no evidence of entrenched integrity issues for either respondent. This was aberrant behaviour, not typical of these architects. The Committee is satisfied the behaviour is unlikely to be repeated. Insofar as they can, the respondents have rectified their conduct, and in particular have full insight remorse and contrition, apologising to the profession at large. There was no harm to others, nor (save tangentially) gain to the respondents.

 

  1. The Committee decided that the actions of the two respondents were quantitatively different. It was Mr Hutchinson who made the backup of data, and did so without the involvement of Mr Irwin. Mr Hutchinson admitted dishonesty, with which Mr Irwin was not charged.

 

  1. With this in mind, the Committee decided that a penalty order in respect of Mr Irwin is the appropriate sanction and that a suspension would be disproportionate in his case.

 

  1. However the reputation of the profession is a prime reason for the imposition of sanctions, and given a finding of dishonesty the reputation of the profession means that a suspension order in the case of Mr Hutchinson is required. However when the Committee looked at the guidance on erasure, none of the criteria apply. The Committee decided that erasure would be disproportionate. Accordingly the Committee decided that a period of suspension was the appropriate sanction for Mr Hutchinson.

 

  1. The fine for Mr Irwin, given the limited fining powers of the Committee, and given an admission of lack of integrity, cannot be other than £2500, which the Committee orders the respondent to pay within 28 days.

 

  1. The period of Mr Hutchinson’s suspension can be justly short, by reason of the extensive mitigation which the Committee has considered fully. Accordingly the Committee imposes an order of suspension on Mr Hutchinson for a period of three months. The representative of the ARB will explain the import of that decision for that period. The period of suspension commences immediately and ends automatically on 16 January 2017.

 

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