THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

Held at

The Cliffords Inn Conference Centre
Cliffords Inn , Fetter Lane , London EC4A 1LD

on

Thursday, 7th April 2005

Present

MR PETER VERDIN
(In the Chair)

MR JOHN SPENCELEY
MRS BARBARA SAUNDERS
MR STEPHEN BATTERSBY
(Clerk to the Tribunal)

MR SIMON HOWARD
(ARB)

MR PETER CADMAN (of Messrs. Russell Cooke) appeared as
Solicitor Complainant.

IN THE MATTER OF
CLIFFORD GARDNER
Registration No 053283E

Transcript from a Tape Recording by Harry Counsell & Co.
(Incorporating Cliffords Inn Conference Centre)
Clifford's Inn , Fetter Lane , London EC4A 1LD
Telephone: 020 7269 0370
Fax: 020 7831 2526

PROCEEDINGS

THE CHAIRMAN: I will introduce ourselves. Just going round the table, Mr Cadman is the Solicitor Complainant. He is instructed by the Board. On my left is Mrs Saunders, who is a lay member of the Professional Conduct Committee. I am the Chairman, legally qualified chairman. On my right is Mr Spenceley, who is also a member of this committee. He is also a member of ARB. Next to him is Mr Battersby, who is the Legal Clerk of the Committee. I think you know Simon Howard , I think you have probably dealt with him, he is from the office.

This hearing follows the previous hearing where we found that you had been guilty of professional misconduct and we were minded to erase your name from the register. Before doing that, we felt that it was right - and there were others as well - should have the opportunity to be heard by us to deal with any reasons why your name should not be erased from the register.

You have very kindly provided us with a very good and useful summary of what you want to say and your reasons; and because some of those reasons or some of those arguments go, if you like, to the preceding hearing, the earlier hearing, we will treat those and listen to them in the same way, although we had already made that finding.

In cases of this nature, you get the last word, so we will listen to what Mr Cadman wants to say and how he is going to deal with it.

Mr Cadman, before you start, could I ask you if you have received a copy of all Mr Gardner's documents?

MR CADMAN: Yes, I have.

THE CHAIRMAN: Thank you.

MR CADMAN: In terms of opening, I opened the case in Mr Gardner's absence and the findings were made. We are now at the stage of penalty in the process. In terms of penalty, I take the view that I have little further input to make. I take the view that this is very much like the criminal process in the sense that I do not advocate a particular penalty to be imposed on a respondent. My role is to present allegations which you have found to be proved.

You have given the indication as to the level of penalty that you are considering in allowing Mr Gardner the opportunity to make representations and, as such, I am not certain there is anything further I would wish to say. I reserve the right to reply to any representations he makes if he is asking you to re-open the question of guilt or innocence, because, as far as I am concerned, that matter is a final decision you have made and it is a matter for which there are no grounds or powers on the matters presented to allow you to reconsider.

THE CHAIRMAN: Thank you. So, Mr Gardner, the stage is yours. Whilst I will give you a degree of latitude, obviously I am going to have to bring you back to relevance if we depart from relevance. I do not know whether we will or not. So I do not know how you want to approach this.

I should say that you have two ways of dealing with this. You could, if you feel it is necessary, give evidence before us, in which case the Clerk would ask you whether you wished to do that under oath, or by way of a statement. If you give evidence, then Mr Cadman, if he so wishes, can cross-examine you, put questions to you. Or you can merely make a statement to us, in which case he has no right to question you or to cross-examine you. In any case, I do not know what you are going to say.

MR GARDNER: I will go for the latter.

THE CHAIRMAN: So you are going to make a statement to us. Thank you. Is it helpful for us to follow the documentation that you have provided?

MR GARDNER: Not really. I do not wish to waste everybody's time this morning. I am not going to challenge the decision.

THE CHAIRMAN: We have read these.

MR GARDNER: I am not going to challenge the decision. I think that would be very lengthy and it is almost certainly going to waste everybody's time since the decision has been made.

All I can do is question or make a statement about whether or not erasure is appropriate in the circumstances.

THE CHAIRMAN: Please do that.

MR GARDNER: The fundamental point is, the Royal Institute's opinion differs fundamentally from the ARB opinion. I think that is the crux of it. I think that legal opinion that is pending for the Institute is something that should be out in the open and that the issue of the code, the interpretation of the code, that the ARB has taken - I am led to believe, since I have had parts of it read out to me - the draft statement - I believe the expression is, it is ping-ponging at the moment - leads me to believe that it will, in fact, be diametrically opposed on that issue of interpretation of whether or not failure to comply with the code is itself grounds for unprofessional conduct.

To summarise that, I believe that since that debate is going to happen fairly soon, obviously this year, within a month or two, I should imagine, erasure would be inappropriate because of that.

The second point I wanted to make was that the public interest justification was rather puzzling since the benefit to the public interest would be identical if it was an issue of my resignation as against erasure. The outcome is identical in the public interest, so I was questioning that that would be a reason in itself.

I am willing to abide by the joint conclusion, the decision, that the Royal Institute and the ARB come to between them, because eventually they will have to, and I fully accept that if that means that membership of the Architects Registration Board requires PII, then so be it. I will abide by that.

Again, the reason for not appearing before was I twice requested an adjournment to allow that legal opinion from the RIBA to come out, it being my primary defence. I understand that the Clerk felt that on both occasions it was inappropriate to adjourn.

Finally, the real point is that I dislike being treated as a miscreant when I have made it very obvious from all of the correspondence - there were two issues. The first was my financial situation, but there was equally clearly an issue of principle, and I did state that very early on, and I did state very clearly very early on that I did not have PII. In other words, I was not evading that issue by pretending that I might have it and that I was merely making an issue of not sending in the form. I declared that very early on.

For that reason, I would request that it be changed from erasure to suspension on the principle that the Board can refuse my re-application post suspension on any grounds it sees fit, the principal difference being my reputation not being tarnished with - the phrase I have used is "being publicly pilloried for being unprofessional".

I have done this in the wrong order, because my first request should have been that my resignation be accepted and the last point I made would appertain there as well.

THE CHAIRMAN: That would come first, yes. That is very helpful. Is there anything further you want to say to us? Have you covered all the points?

MR GARDNER: I think I have covered most of it.

THE CHAIRMAN: Mr Cadman, I do think there is anything you wish to add, is there?

MR CADMAN: No, it is purely related to penalty and, as I said when I opened, if it was relating to penalty I do not think it is proper that I should address you at all.

THE CHAIRMAN: We will retire and we will consider all the points you have made and we will come to a decision.

( The Committee retired )

THE CHAIRMAN: As I said at the outset, the nature of this hearing is a hearing to deal with the question of penalty and Mr Gardner readily accepted that. We have made findings of fact in our previous hearing and Mr Gardner has, very frankly, admitted that he practised without insurance. He disputes, of course, the consequences of that.

We also found in the initial hearing that Mr Gardner had failed to reply to correspondence from the Board and had failed to provide appropriate documentation.

I want to deal with the question of the status of this Committee. This is a Committee which was set up by statute and its constitution is in accordance with statute. It is a Committee which is entirely independent of the Board or of anyone else.

The statute does provide that members of the Board should sit on the Committee, and it is interesting to note that when there was recently a revision of some of the regulations and some of the provisions relating to this Committee that the Government made it clear that they considered that it was appropriate that members of the Board should also be members of this Committee.

I should also make it clear that no member of the Board who is a member of the Committee which decides upon bringing complaints before this Committee would ever be a member of this Committee.

As to the independence of this Committee, I think anybody who has looked at the decisions of the Committee over the years would readily acknowledge that it is completely independent.

The other point I just wish to make is a point which has been raised by Mr Gardner and has indeed been raised by other people. That is the question of resignation from the register.

Any dispute as to whether a person's resignation from the register should be accepted or not is a dispute between that person and the Registrar. So far as the jurisdiction of this Committee is concerned, if a person's name is on the register then this Committee must deal with any complaints which are brought before it. We have no option.

As I say, if anybody wishes to challenge a decision of the Registrar to refuse a resignation from the register, then they must pursue it in another forum against the Registrar: it is not a matter for this Committee.

It has been said by Mr Gardner - and I should say Mr Gardner's correspondence and the documents he sent to us and what he has said to us today have been very helpful - is that breach of a standard is not of itself misconduct. That is a position which is recognised by this Committee.

We need to perhaps define the position of a standard, a standard which has been set by the Board.

There are exceptions to each of the standards. There is the requirement for insurance, for example. The return which is made by practising architects does enable them to identify situations where insurance is not required by the Board. But standards in themselves are norms which are expected to be observed by reasonable architects: they are guidance; they are a form of Highway Code.

I think that the situation of the Highway Code us a very useful analogy. A breach of a standard is not of itself automatically misconduct, but of course we have to look at the standards and we would have to look at the reasons for the departure from any standard and departure from that norm. We would have to make a judicial decision.

I should say that in this case we cannot find that there is any justification for departure from the norm. That was found in the original hearing. We have nothing before us to suggest that Mr Gardner had justification to practise without insurance, and we do not consider that he has produced any further compelling reasons today, although, as I say, this is a matter where we are considering penalty.

Mr Gardner has suggested to us that a more appropriate penalty should be suspension. As a disciplinary tribunal, we have to take the situation as we find it. We are a judicial body and we are not concerned with the politics of the matter. There is, no doubt, a lively debate going on within the profession, but a complaint has been brought before us and we have to deal with it now.

We have given careful consideration to the suggestion that suspension would be a more appropriate penalty, but we have come to the conclusion that in these circumstances it is not an appropriate penalty.

Suspension is limited in its extent and we do not consider that it reflects the seriousness of the offence. And, also, we have no evidence that Mr Gardner intends to remedy the breach of the standard by taking out insurance.

Therefore, our conclusion is that the preliminary decision must stand. We have heard nothing to suggest that erasure is not the appropriate penalty, and the order therefore is that your name should be erased from the register.

Thank you, Mr Gardner. We are very grateful to you for coming and making your points.