DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS

Transcription

1 DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS REASONS FOR DECISION In the matter of: Mr Ghafoor Hussain Heard on: Thursday, 30 November 2017 Location: The Chartered Institute of Arbitrators, 12 Bloomsbury Square, London WC2N 6AU Committee: Mr Mike Cann (Chairman), Trevor Salmon (Accountant), Barry Picken (Lay). Legal Adviser: Ms Valerie Charbit Persons present and capacity: Ms Emily Healy (ACCA Case Presenter) Miss Subagarey Pathmanathan (Hearings Officer) Summary: Allegation 1(a) proved. Allegation 2(a) and 2(b)(ii) proved. Allegation 2(b)(i) not proved. Sanction: Severe Reprimand Costs: Mr Hussain ordered to pay 5000 to ACCA

2 ALLEGATION AND SERVICE OF PAPERS 1. The Committee convened to consider two allegations of misconduct particularised as follows: Allegation 1. Pursuant to bye-law 8(a)(i), Ghafoor Hussain is guilty of misconduct in that he, on 2 September 2008, was convicted at Bradford Crown Court of Violent Disorder contrary to Section 2 of the Public Order Act Allegation 2 a) Ghafoor Hussain failed to bring promptly to the attention of ACCA, upon his application for student registration on or around 26 August 2009, that he may have become liable to disciplinary action by reason of having been convicted of Violent Disorder on 2 September 2008, pursuant to bye-law 10(b). b) By reason of his conduct at 2(a) above, Ghafoor Hussain is: (i) Guilty of misconduct pursuant to bye-law 8(a)(i); or (ii) Liable to disciplinary action pursuant to bye-law 8 (a)(iii). 2. The Committee had bundles of papers numbering A-L and and an additional bundle numbering and a service bundle numbering Mr Hussain attended the hearing but he was not represented. ADMISSIONS 4. Prior to the hearing and when the charges were read to him Mr Hussain admitted Allegation 1 and Allegation 2(a) Allegation 2(b)(ii). He denied Allegation 2(b)(i).

3 BACKGROUND 5. A Certificate of Conviction provided by Mr Hussain confirmed that on 2 September 2008, Mr Hussain was convicted of Violent Disorder at Bradford Crown Court and was sentenced on 3 November 2008 to two years' imprisonment. 6. On 26 August 2009, Ghafoor Hussain first registered as an ACCA Student. He graduated on 1 February 2014, becoming an ACCA affiliate. 7. On 1 November 2016, Gafoor Hussain informed ACCA that he had a "criminal conviction, although spent, to declare The conviction was over 8 years ago, and became spent approximately 2 years ago " Gafoor Hussain provided a copy of the certificate of conviction and enquired whether the conviction would affect his membership to ACCA. 8. Mr Hussain was asked why he did not inform ACCA of his conviction upon registration. In response, Mr Hussain stated "unfortunately, I believe in my haste to register, I overlooked this form completely. I do not have any reasonable mitigation or any excuse in regard to this. This was completely my fault and an error that in hindsight has potential grave consequences for me, especially since I have devoted so many years to this. I can understand the difficulty in understanding this, however there was no malice involved here, this was a genuine error on my part and I completely hold my hands up to it. 9. Mr Hussain explained that in 2013 he "came across the same information, namely that all previous and current convictions should have been declared at registration." Mr Hussain stated that he called and then ed ACCA and received a response from ACCA, set out in his appendix 1, which stated "As this does not relate to fraud or a money related conviction then this is not something that will affect your ACCA registration." 10. Mr Hussain confirmed that his current employer is aware of the situation and stated "I am well aware that this is misconduct and I am guilty of it, and also that I am liable to disciplinary action to which I shall be co operating 100%

4 11. Mr Hussain gave his consent to ACCA to request the sentencing Judge s remarks. ACCA was informed that these were destroyed after five years. ACCA have not yet been able to secure information about the case from West Yorkshire Police despite extensive correspondence. Ms Healy confirmed that she had no further details regarding the offence underlying the conviction in ACCA obtained a copy of "The ACCA Qualification and Mature Student Entry Route declaration" which was in use in 2009, the year of Mr Hussain's registration with ACCA. 13. Within this form it clearly set out what constitutes misconduct and the declaration which needed to be signed in order for the registration to be processed. 14. The declaration asked the applicant to indicate his agreement to the following statement: I understand that once I have registered, I could be liable to disciplinary action under ACCA Bye-law 11 for events set out in ACCA Bye-law 8 which occurred before or after I registered I have disclosed details of any past events referred to in ACCA Bye-law 8 and understand that they will be taken into account when dealing with my application, but that it will not necessarily stop me becoming an ACCA student. I declare that I have included anything ACCA needs to know, and understand that any failure to disclose past events referred to in ACCA Bye-law 8 may render me liable to disciplinary action." 15. An ACCA Student Registration Manager, explains in a statement the registration process in place in 2009 and confirms that an ACCA applicant would not have been able to proceed to the next stage of the registration if they did not confirm that "I have read and accept the terms and conditions".

5 ACCA S CASE Allegation ACCA submitted that Mr Hussain was found guilty of Violent Disorder contrary to the Public Order Act 1968, and this is evidenced by the Certificate of Conviction. It further submitted that Mr Hussain's conviction of Violent Disorder and the subsequent sentence of two years imprisonment represents conduct so serious in nature that it amounts to misconduct. 17. Furthermore, Bye-law 8(e)(i) [as applicable in 2008] provides that an affiliate, who has been found guilty of any offence that is discreditable to him or derogatory to ACCA or the accountancy profession before a court of competent jurisdiction in any country where such court's judgments are relevant in the opinion of the Council, is conclusive proof of misconduct. 18. ACCA therefore submitted:- That the offences that that Mr Hussain has been found guilty of are so serious in nature that they bring discredit to him and/or are derogatory to the ACCA and/or the accountancy profession; and The judgment of Bradford Crown Court is relevant. The above represents conclusive proof of Mr Hussain's misconduct pursuant to Bye-law 8(e)(i) [as applicable in 2008]. Allegation ACCA submitted that Mr Hussain ought to have promptly informed ACCA of his conviction and sentence upon his registration which took place on 26 August 2009, some 9 months after his sentencing hearing. 20. It further submitted that Mr Hussain knew or ought to have known that his conviction and/or sentencing represented facts or matters that may make him liable to disciplinary action as this was clearly set out in The ACCA Qualification and Mature Student Entry Route declaration which stated that a conviction for a criminal offence by a UK court was conclusive proof of misconduct. Mr Hussain

6 signed and dated this declaration submitting that he declared and disclosed any events which could lead to disciplinary action. 21. ACCA submitted that by failing to inform ACCA of his conviction and sentencing, Mr Hussain is guilty of misconduct and is in breach of ACCA's bye-laws. 22. ACCA asked the Committee to determine whether Mr Hussain is guilty of misconduct in respect of allegation 2 since it was a matter of judgment for the Disciplinary Committee. 23. Ms Healy submitted that the conviction itself was a serious and violent conviction which ACCA members and the public would be concerned with. 24. Ms Healy stated that the length of time it had taken Mr Hussain to report this conviction to his regulator was a matter the Committee should take into account when deciding whether or not Mr Hussain was guilty of misconduct under Allegation 2(b)(ii). She submitted that Mr Hussain should have reported the matter promptly i.e. a year after he had been convicted and when he applied to register with ACCA. Ms Healy submitted that the matter must have been fresh and in Mr Hussain s own mind when he was applying to be a member of ACCA. 25. Ms Healy submitted that the Committee should take into consideration whether Mr Hussain s assertion that he did not read the declaration was behaviour which was an ideal quality for an ACCA affiliate. She invited the Committee to assess Mr Hussain s explanation carefully. 26. Ms Healy accepted that ACCA had given incorrect and misleading information in 2013 in stating that this is not something that will affect your ACCA registration when Mr Hussain informed ACCA that he should have informed them of the conviction upon registration. MR HUSSAIN S CASE 27. Mr Hussain stated that he hastily completed the application for registration form in 2009 and that he had not read the terms and conditions in full. He submitted that there was no malice or bad intention on his behalf at that time. He stated

7 that the conviction preceded his registration with ACCA and referred to an incident dating back to November 2007 but that he had applied to ACCA one or two months after he had been released from prison. 28. Mr Hussain submitted that this was a careless and negligent act by him and that he did not intend to deceive anyone. He stated that he declared the conviction in 2013 as soon as he became aware that he should have done so but he relied on the fact ACCA had provided him with reassurance as to the conviction s importance. 29. Mr Hussain stated that his personal circumstances at the time in 2013, meant that he did not take matters further after he received the from ACCA in 2013 and it was therefore not until 2016 that he realised the significance of his omission when applying to become a member. 30. On 7 April 2013, Mr Hussain informed ACCA about his conviction. On 7 April 2013, an Examination Administrator from Glasgow responded to Mr Hussain stating As this does not relate to fraud or a money related conviction then this is not something that will affect your ACCA registration. 31. On 5 November 2016, Mr Hussain provided further information in relation to the circumstances of his conviction. Mr Hussain informed ACCA that "the conviction was of Violent Disorder, and the sentence imposed by Bradford Crown Court was of 2 years imprisonment. The offence took place in November 2007, the sentence was imposed in November My license period finished in November 2010 and in November 2014 the conviction was considered as a spent conviction. 32. Mr Hussain set out the circumstance of the offence: " myself aged 20 years old (approximately 9 years ago to this day), a cousin of mine and a few of his friends were parked in an off street car park late at night after being out on bonfire night 5th November Two masked men approached us and demanded cash and mobile phones. Both were holding weapons and wearing balaclavas. One of them then got into our car and attempted to drive off only crashing into a wall a short distance away. He made off on foot, although I

8 attempted to chase him. He got away and I returned back to the scene to find the others attempting to get the second man on the floor. We eventually managed to get him on the floor together, however in the process, somebody amongst us had hit the man with his own weapon a hammer and he had been stamped on. This resulted in quite serious injuries, the individuals spent some weeks in hospital recovering from bleeding and swelling to the brain, he did later make a full recovery. From the scene, we were threatened by some local people who initially arrived at the scene and we made of fearing for our safety. I, later that night, voluntarily attended the police station. After liaising with solicitors and taking legal advice, I initially pleaded not guilty, however never went to trial and after further advice from barristers, all 4 of us pleaded guilty to Violent Disorder on the basis of being jointly present and therefore involved jointly in a violent disorder. In pleading this way, my Barrister in particular wanted the Judge to highlight that although the complainant was the victim, he was in fact the perpetrator of a vicious crime. The Judge accepted in his comments that we had not instigated the crime and had not been looking for trouble. 33. Mr Hussain further stated that "I full well understand the enormity and severity of such an offence especially on such an impeccable character that I have strived to build. This offence was wholeheartedly out of character, isolated in the fact that I have never before or since been in trouble with the Police. 34. He further stated I am remorseful beyond a shadow of a doubt even though the acts were instigated in response to criminality against me. I full well understand that certain decisions that I made on that night, could and should have been made differently. 35. Mr Hussain explained he was now a married father of two young children and that he had completed his ACCA examinations though self-study and that he devotes time to his young family, studies and work. 36. In the Case Management Form dated Mr Hussain stated that he did not admit misconduct stating I do not believe this is misconduct, I believe in my eagerness to submit the application I overlooked the requirement. In 2013, I

9 read that it should have been disclosed however received a response from ACCA making me believe there was no issue regarding the disclosure at registration. I did not have any negative intentions nor did I not declare on purpose. 37. Mr Hussain submitted a number of character references which were positive including one from his current employer who was aware of this disciplinary hearing and expressed a wish to employ Mr Hussain as an accountant. DECISION ON FACTS/ALLEGATION AND REASONS 38. The Committee found Allegation 1 and Allegation 2(a) proved in accordance with Regulation 12(3) of the Chartered Certified Accountants Complaints and Disciplinary Regulations Allegation 2(b)(i) 39. The Committee noted that Mr Hussain stated that he had registered for ACCA after he had been released from prison. It further noted that he had completed all his exams without the certainty of knowing that he could be made an ACCA member. He had voluntarily admitted his conviction when applying for membership. 40. Mr Hussain is now aged 30. At the time of offence he was aged 20. He stated he was married and focussed on his family life and his character references attested to his positive good character. 41. The Committee decided that it accepted Mr Hussain s evidence that he had acted carelessly and negligently in failing to promptly disclose the conviction to ACCA when he first registered with ACCA online. 42. The Committee noted that this was a serious conviction of violent disorder which had resulted in a custodial sentence of two years imprisonment however there was no detail provided by the police or Bradford Crown Court to ACCA to contradict the description of the offence given by Mr Hussain. The Committee

10 accepted that Mr Hussain had not deliberately intended to deceive ACCA when he made a false declaration upon registration, however it accepted that it was his inadvertence and carelessness that meant he had made a false declaration. 43. The matter was further complicated by the fact that in 2013 when Mr Hussain realised that he should have reported the conviction, he was given erroneous and misleading information by ACCA which had misled him as to the importance of the conviction. 44. The Committee concluded that Mr Hussain in failing to promptly report the conviction was an isolated act of negligence. It was satisfied that the facts surrounding his failure to report this promptly to ACCA explained the position. Although this was a serious conviction and Mr Hussain had failed to report it promptly, the Committee found that he had not done so deliberately and as soon as he realised its importance in 2013 he had done so. 45. The Committee therefore concluded taking into account the facts and chronology of this specific case that this was an isolated act which the Committee accepted was due to negligence Mr Hussain. It therefore decided that his conduct in respect of Allegation 2(a) did not amount to misconduct pursuant to bye-law 8(a)(i). Accordingly Allegation 2(b)(i) was not proved. 46. Since Allegation 2(b)(ii) was an alternative allegation to Allegation 2(b)(i), the Committee therefore found Allegation 2(b)(ii) proved having accepted Mr Hussain s admission. SANCTION AND REASONS 47. Ms Healy confirmed that Mr Hussain had no previous disciplinary findings against him. 48. Mr Hussain submitted that he had not been involved in any such similar behaviour since He stated that the offence took place when he was very young. He submitted that he is a hard working academic and that he had

11 changed his life completely since He submitted that his life is now devoted to his work and family. He was remorseful. 49. The Committee considered the Guidance for Disciplinary Sanctions (with effect from 1 July 2017) before deciding what sanction to impose. 50. The Committee reminded itself that the purpose of any sanction is not to be punitive but to protect the public interest which included the need to maintain confidence in the profession and the need to declare and uphold proper standards of conduct and performance. 51. The Committee balanced the public interest, the interests of ACCA s membership as a whole, the interests of Mr Hussain and the seriousness of the Allegations found proved with the mitigating factors that Mr Hussain had put forward as part of his case. 52. It noted that Mr Hussain had no previous disciplinary findings against him and that he had voluntarily informed ACCA of the conviction when he realised that he should inform them. Further there were positive character references and Mr Hussain appeared to have done all he could to reform himself and his future following the custodial sentence. It accepted that Mr Hussain had good insight by virtue of his realisation that he needed to disclose the conviction and because he had been willing to do so as far back as Mr Hussain submitted that he asked the Committee to sanction him so that he could continue with his career. 53. Although the Committee had not found misconduct in respect of Allegation 2(b)(i), Mr Hussain had admitted misconduct in respect of Allegation The Committee first considered the sanctions of no further action but it decided that the public interest required a sanction where a relevant person had failed to promptly disclose a conviction. 55. It went on to consider the sanction of admonishment and noted that Mr Hussain had admitted matters at an early stage, had insight into his failings and that his expression of remorse was genuine. He also had relevant and appropriate

12 references which referred to Mr Hussain s positive good character and his excellent work history. The Committee went on to decide whether this sanction was sufficient in all the circumstances of the case. It decided that seriousness of the original conviction of violent disorder meant it was likely that had Mr Hussain disclosed the conviction at the time he registered he would in all likelihood have been rejected by ACCA. It therefore concluded that a sanction of admonishment was insufficient due to the seriousness of the matters found proved. 56. The Committee went on to consider whether a sanction of reprimand was the proportionate and appropriate sanction in this case. It took into consideration that the underlying conviction was serious and it had resulted in a custodial sentence, and that damaged the reputation of the profession and ACCA notwithstanding the undisputed facts Mr Hussain had given about the circumstances of the conviction. Further, Mr Hussain s failure to report the conviction promptly, although not amounting to misconduct, had resulted in him being considered more favourably at this point in time rather than when he first applied to ACCA to be a student member. The Committee also considered that it was important to send out a message that applicants to ACCA realised the importance of declarations made as part of the application process and the need to be full and frank in disclosing convictions. The Committee therefore decided that the sanction of reprimand was insufficient in all the circumstances of the case. 57. The Committee noted that Mr Hussain had very good mitigation but it found that Mr Hussain had acted recklessly when failing to report the conviction to ACCA at an earlier stage. It further noted that Mr Hussain had been willing to comply with ACCA s investigation and that his exemplary behaviour now, ten years after his behaviour underlying the conviction and the time when he had failed to report it illustrated that he had reformed considerably. Further, the Committee s findings meant that it accepted that Mr Hussain had not acted deliberately. Although Mr Hussain had not realised until four years later that he should have declared the conviction to ACCA, he had been forthcoming in his acceptance of what he had done wrong and he had shown genuine insight.

13 58. The Committee was therefore satisfied that Mr Hussain s early admissions and because it had found Allegation 2(b)(i) not proved meant that the sanction of a severe reprimand was a sufficient sanction in all the circumstances of this case. It noted that the passage of time had undoubtedly meant that Mr Hussain s position had been mitigated, he had acted properly when he realised the significance of what he had done and then he voluntarily disclosed the conviction in 2013 and again in It accepted that Mr Hussain was remorseful and that he had insight into the seriousness of the Allegations found proved. 59. Having acknowledged that the conviction in 2008 would in all likelihood have resulted in ACCA rejecting Mr Hussain s application for membership in 2009, the Committee did consider whether exclusion from ACCA s membership was the correct sanction in this case. It decided that such a sanction would be disproportionate because of the passage of time, extensive personal mitigation and the fact that Mr Hussain had demonstrated considerable insight and remorse. Further it concluded that the risk of Mr Hussain repeating such offending behaviour was very low. For these additional reasons the Committee decided that the proportionate sanction in this case was a severe reprimand. COSTS AND REASONS 60. ACCA applied for costs against Mr Hussain in the sum of , part of which is estimated. Ms Healy submitted the investigation by ACCA was appropriate in this case. She acknowledged that the estimate was based upon Mr Hussain s willingness to assist ACCA in its investigation. 61. Mr Hussain submitted that he could pay the costs but that his financial position meant he would be caused financial hardship if ordered to pay the full amount. Mr Hussain submitted that he had assisted ACCA with its investigation. He further submitted that he had admitted all the allegations that had been found proved. He stated that he had limited means because he supported a family, [redacted] and he had never been able to move out of his parent s home because he could not afford a deposit. Mr Hussain further stated he was not able to get a mortgage with his current income.

14 62. Mr Hussain asked the Committee to consider his income; that he was only able to work part-time in his current employment and the fact that he supported a young family when it determined the amount of any order for costs. 63. The Committee decided to make an order for costs on the basis that it was just and reasonable that Mr Hussain should pay an amount towards ACCA s costs. It took into account Mr Hussain s means, that he had available to him savings [redacted], that he had cooperated fully with ACCA s investigation and that the hearing had lasted just over half a day. 64. The Committee therefore decided to order costs should be paid by Mr Hussain to ACCA of Mr Mike Cann Chairman 30 November 2017