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 Jawad Raza Heard on: Friday, 30 June 2017 & Monday, 3 July 2017, Monday, 21 August 2017 (Committee retired in private) and Monday, 25 September 2017 Location: The Chartered Institute of Arbitrators, 12 Bloomsbury Square, London, WC1A 2LP (30 June, 03 July) and The Adelphi, 1-11 John Adam Street, London, WC2N 6AU (21 Aug, 25 Sept) Committee: Mr John Wilson (Chairman), Ms Lynne Jones (Lay) and Ms Lorna Jacobs (Lay) Legal Adviser: Mr Alastair McFarlane Persons present and capacity: Ms Emily Healy (ACCA Case Presenter), Miss Rachael Davies (Hearings Officer), Mr Jawad Raza (Member), Makbool Javied (Member s Representative), Mr Charles Apthorpe (Members Counsel) Observers: None Summary: Severe Reprimand

2 1. ACCA was represented by Ms Healy. Mr Raza attended and was represented by Mr Apthorp. The Committee had before it a bundle of papers, numbered pages A to W, 1 204, additional bundles, numbered pages , , , , 398a-422 and a service bundle numbered pages It also had the benefit of a transcript of the hearing on 30 January and 3 July SERVICE 2. Having considered the service bundle, the Committee was satisfied that notice of the hearing had been served on Mr Raza in accordance with the Complaints and Disciplinary Regulations ALLEGATIONS Allegation 1 (a) On 3 October 2012 judgment was entered against Mr Jawad Raza in the sum of (b) On 21 August 2013 judgment was entered against Mr Jawad Raza in the sum of (c) By reason of his failure to satisfy the judgment debt referred to in 1(a) and/or 1(b) above within two months, without reasonable excuse, Mr Jawad Raza is liable to disciplinary action pursuant to bye-law 8(a)(viii). Allegation 2 (a) On/or around 12 May 2015 Mr Jawad Raza made a threat to kill Mr A. (b) By reason of his conduct as set out in 2(a) Mr Jawad Raza is guilty of misconduct pursuant to bye-law 8(a(i).

3 Allegation 3 (a) Mr Jawad Raza failed to comply with a possession order made on 28 April 2015 at the County Court at Croydon. (b) By reason of his conduct as set out in 3(a) Mr Jawad Raza is guilty of misconduct pursuant to bye-law 8(a(i). Allegation 4 (a) Contrary to Paragraph 3(1) of the Complaints and Disciplinary Regulations 2014, Mr Jawad Raza has failed to co-operate fully with the investigation of a complaint in that he failed to respond to any or all of ACCA s correspondence requesting information: (i) In a letter dated 29 June 2015; (ii) In a letter dated 15 July 2015; (iii) In a letter dated 07 August 2015; (iv) In an dated 07 September 2015; (v) In an dated 15 September 2015; and (vi) In an dated 20 October (b) By reason of his conduct as set out in 4(a)(i) (vi), Mr Jawad Raza is: (i) (ii) Guilty of misconduct pursuant to bye-law 8(a)(i); or Liable to disciplinary action pursuant to bye-law 8(a)(iii). Allegation 5 (a) Contrary to Paragraph 3(1) of the Complaints and Disciplinary Regulations 2014, Mr Jawad Raza has failed to co-operate fully with the investigation of a complaint in that he failed to respond to any or all of ACCA s correspondence requesting information:

4 (i) In an dated 25 January 2016; (ii) In an dated 9 February 2016; (iii) In an dated 24 February 2016; (iv) In an dated 12 March 2016 (b) By reason of his conduct as set out in 5(a)(i) - (iv), Mr Jawad Raza 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) BACKGROUND 3. Mr Raza became an ACCA member on 18 April 1996 and has been a Fellow of ACCA since 18 April He is presently associated with Danmirr Consultants, an ACCA firm. 4. In 2013, Mr Raza was looking to rent a property for a year while his own house was being renovated. Mr Raza took a tenancy of Mr A s property in September 2013 for one year, but did not vacate the property at the end of period and this led to Mr A having to begin possession proceedings against Mr Raza (obtaining a possession order at Croydon County Court on 28 April 2015) and then having to obtain a warrant for possession with eviction due to take place on 10 July In May 2015, ACCA received a complaint from Mr A alleging that Mr Raza had been the subject of a court order to vacate Mr A s property which had not been complied with and that he had threatened Mr A. 6. Further information was received that Mr Raza had two outstanding county court judgments against him. 7. ACCA also contended that Mr Raza failed to co-operate fully with ACCA s investigation of these complaints. (Allegation 4) 8. Further, in June 2015, ACCA received a second referral from the National Crime Agency ( NCA ) regarding the conduct, processes and professional competences of ACCA members at Danmirr Consultants including Mr Raza,

5 in relation to a client of Danmirr who had been convicted of money laundering. ACCA s investigation resulted in Allegation 5 namely that Mr Raza failed fully to co-operate with ACCA s investigation into the NCA s complaint. ACCA SUBMISSIONS Allegation 1 9. On 29 June 2015 ACCA obtained a report from Registry Trust Limited indicating that two judgments dated 03 October 2012 and 21 August 2013 against Mr Raza remained outstanding. The Claimant on both occasions was Claimant A. The first judgment was for a total of and the second for (debt, interest and costs). At the time of obtaining the report from Registry Trust Limited both judgments remained unpaid and ACCA contended Mr Raza had not established any reasonable excuse for failing to satisfy these judgment debts the burden being on him to do so. This rendered him liable to disciplinary action pursuant to bye-law 8(a)(iii). Allegation ACCA contended that Mr A s oral evidence and witness statement were credible. Its case relied on the fact that Mr A reported to the police that Mr Raza made a threat to kill him when he visited the property on 12 May It further submitted that Mr Raza s behaviour of making a threat to kill his landlord amounts to misconduct. Allegation ACCA contended at paragraph 25 of their written submissions that Mr Raza failed to pursue his appeal and therefore there was a period of time when Mr Raza failed to comply with a possession order without exercising this right. They added however, that it was very clear that Mr Raza was not legally represented throughout and was following advice provided to him by the Court Clerk. ACCA contended that such a failure reached the threshold for misconduct.

6 Allegation 4 and ACCA relied upon their documentary evidence and submitted that Mr Raza s lack of responses to their letters in relation to Allegations 1, 2 and 3 amounted to a failure fully to cooperate with the investigation of the complaint. In addition, his lack of responses to their s between January and March 2016 amounted to a failure to cooperate fully with the investigation following NCA s referral. ACCA contended that these failures amounted to misconduct or in the alternative rendered Mr Raza liable to disciplinary action. MR RAZA S SUBMISSIONS 13. Mr Raza relied on the written submissions from Mr Apthorp (at pages ). Allegation Mr Raza admitted that both judgment debts were entered against him but contended that he had a reasonable excuse. His submissions included that he did not receive the claim forms and was thus unaware of the judgments and that because of his ill health he was not in a position to effectively manage his affairs. Allegation Mr Raza denied making any threat to kill Mr A contending that Mr A s account was not consistent or credible. Allegation Mr Apthorp submitted that Mr Raza was exercising his legal rights and following due process in relation to the possession an enforcement proceedings and that it is wrong in principle for a professional body to restrict the legal rights of access by an individual(s) in the Courts, it is a breach of Mr

7 Raza s Article 6 rights to have a dispute resolved by the Courts to seek to restrict such access. Allegation Mr Raza denied that he failed to cooperate with the ACCA investigation. Mr Raza s home had been demolished and he contended he had not received correspondence and that he fully cooperated with the investigation responding to what he had received. Allegation Mr Raza denied that he had failed to respond to ACCA s request for information and relied on the fact that he informed ACCA on 29 December 2015 that he could not respond comprehensively because the NCA had retained the relevant documentation. DECISION ON ALLEGATIONS AND REASONS 19. The Committee accepted the advice of the Legal Adviser. The Committee reminded itself that the burden of proving the factual allegations rested with ACCA, save for Allegation 1(c), where the burden was on Mr Raza pursuant to Bye-law 8(a)(viii). The standard of proof to be applied throughout was the ordinary civil standard of proof, namely the balance of probabilities. 20. The Committee heard evidence from Mr A relating to Allegations 2 and 3 and from Mr Raza. It noted that Mr Raza was of good character and it put that into the balance in his favour. The Committee carefully considered the written submissions of both Ms Healy for ACCA and Mr Apthorp for Mr Raza. 21. The Committee noted Mr Raza s history of ill health and the possible impact upon his accuracy and recall. However, the information before it was limited. [REDACTED]

8 ALLEGATION The Committee noted that between May 2013 and December 2015 Mr Raza was having major works undertaken at his property. However the October 2012 judgment was entered before they commenced. Further, in relation to the second judgment it noted that Mr Raza stated in evidence that he did collect mail from his builders and that he visited the property on an almost daily basis. Further, the Committee noted that Mr Raza gave evidence it considered to be inconsistent and/or unreliable as to when he was residing at the property. For example, he stated in oral evidence that there were times he was living in a shed at the site, which was not included in his witness statement. 23. The Committee was satisfied that Mr Raza received notification of both judgments, which he ought to have dealt with. The Committee was not persuaded that Mr Raza has discharged the burden upon him to establish any reasonable excuse for failing to satisfy those judgments debts within two months as he is required to do under ACCA bye-laws. The Committee had specific regard to the issue of Mr Raza s health but repeats its conclusions set out at paragraph 21 above. The Committee was not satisfied that the state of his health at the material times had a sufficient bearing on his failure to satisfy the judgment debts so as to amount to a reasonable excuse. 24. Accordingly Allegation 1 is proved. Allegation The Committee undertook an assessment of the credibility, reliability and accuracy of the two witnesses it heard oral evidence from (Mr Raza and Mr A) given the direct conflict of evidence between them, particularly in relation to Allegation 2. It had the benefit of seeing them both give oral evidence and being questioned. The Committee noted the criticisms made by Mr Apthorp in relation to Mr A, in particular in relation to Mr A professing to be a member of CIMA, when in fact he had not been a member and had only ever achieved student status. The Committee s conclusion on that issue was that it was more likely than not that this was

9 a genuine misunderstanding of his status in relation to CIMA by Mr A. The Committee found his explanation to be plausible. 26. The Committee had no doubt that as 2015 progressed there was a deteriorating landlord and tenant relationship between Mr A and Mr Raza. The Committee concluded however that Mr A s recollection was more likely than not to have been accurate. It found him to be consistent in his recollection and was satisfied that it was unlikely Mr A made up this allegation of the threat. The Committee also noted that he did not use this threat to strengthen his case in his on-going dispute with Mr Raza, which brings into question what motive he would have had for fabricating the incident. The Committee thought it significant that Mr A reported this matter to the police shortly afterwards. In contrast, the Committee was less impressed with Mr Raza s recollection. It found it surprising that when questioned by the Committee, Mr Raza was able to recollect, for the first time, that on the day of the incident he had a meeting with solicitors at a motorway service station between Birmingham and London. This was not in his witness statement and the Committee concluded that this was unlikely to be correct. 27. While the Committee noted that there was a dispute between the parties as to dates and what happened when, for example, with a leak at the property, it thought it more likely than not that there were a number of issues with the property. The Committee found Mr Raza s evidence to be inconsistent on occasions, for example as to when he was living at the property and what mail he received and did not receive. [REDACTED] the Committee was satisfied that Mr Raza was likely to be a less reliable historian than Mr A. The Committee s conclusion was that Mr Raza was less likely to have been accurate in his recollection, and that it was more likely than not, in the context of a fractured landlord and tenant relationship that in temper, Mr Raza spoke the words outside the property on or about 12 May 2015 to the effect that what are you doing here next time I ll kill you before disappearing into the property. Accordingly Allegation 2 (a) is proved. 28. The Committee had no hesitation in concluding that the making of the threat to kill by Mr Raza, albeit in the context of the fractured landlord and

10 tenant relationship and albeit made most likely in temper and on one occasion, is serious and wholly deplorable behaviour. The Committee accepted that it caused Mr A to feel threatened. The Committee was satisfied that Mr Raza s actions on this occasion reached the threshold for misconduct. Accordingly Allegation 2 (b) is proved. Allegation Having carefully considered the documentation the Committee was satisfied that Mr Raza did not comply with the possession order made on 28 April However the Committee accepted the reason he did not comply was because he was still pursuing legal avenues, which were not resolved by the County Court. It accepted that he finally vacated the property on 10 July 2015 shortly before the arrival of the bailiffs. The Committee was not therefore persuaded the ACCA has proved that any non-compliance amounted to a failure to comply. There was no obligation on him to comply while pursuing legal remedy. The Committee would add that even if the non-compliance had been a failure as contended by ACCA, it would not in the Committee s judgment have reached the threshold for misconduct given ACCA s own submissions at paragraph 25 of their written submissions that Mr Raza was not legally represented and was following advice provided to him by the Court Clerk. Accordingly, Allegation 3 is not proved. Allegation The Committee is satisfied that Mr Raza has a duty to co-operate under Paragraph 3(1) of the Regulations. The Committee has considered each of the particulars of Allegation 4(a) set out at (i) - (vi) being letters and s sent to Mr Raza. It was satisfied that the letter of 29 June 2015 was received by Mr Raza, as he agreed in evidence that he had signed for it. While it noted that the letter of 15 July 2015 was not delivered, it was re-sent with the letter of 7 August The Committee noted Mr Raza s two responses by on 7 September 2015 and his phone conversation with ACCA of that date. Nonetheless, these were not

11 substantive responses to ACCA s requests. It also noted that on 12 January 2016, Mr Raza enclosed an earlier response dated 1 October 2015 which ACCA had not received. 31. Having carefully considered all of the communications, the Committee was satisfied that ACCA has proved that Mr Raza failed to co-operate fully with ACCA to the extent expected of a Member. It was satisfied that ACCA s substantive requests for information were received by Mr Raza and that the extent of his responses were insufficient to discharge the duty on him of full co-operation. In particular, while the Committee noted the response of 1 October 2015, which albeit briefly did respond to the complaint set out in correspondence/ before 20 October 2015, he did not respond to Allegations 3 and 4 set out in the 20 October Accordingly, Allegation 4a is proved. 32. The Committee was not satisfied, given the factual extent of the failure it had found, that it reached the threshold of deplorable conduct to amount to misconduct. Accordingly Allegation 4b(i) is not proved. 33. The Committee went on to consider whether the failures it had found rendered him liable to disciplinary action. It considered that such responses that he made were not full or sufficiently prompt, fell short of his duty and were sufficient to render him liable to disciplinary action. Accordingly Allegation 4(b)(ii) is proved. Allegation The Committee noted the s sent by ACCA in relation to the NCA complaint between January 2016 and March 2016 as well as Mr Raza s responses. It accepted that NCA retained most of the relevant documentation until 17 March 2016 and that Mr Raza told ACCA that it was not in his possession. In the circumstances ACCA has not established a failure to cooperate fully and Allegation 5 is not proved. SANCTIONS AND REASONS

12 35. The Committee noted its powers on sanction were those set out in Regulation 13(3). It had regard to ACCA s Guidance for Disciplinary Sanctions and bore in mind that sanctions are not designed to be punitive and that any sanction must be proportionate. It accepted the advice of the Legal Adviser. It noted the submissions of Mr Apthorp on behalf of Mr Raza. 36. The Committee considered that Mr Raza s failure to satisfy the judgment debts within 2 months, rendering him liable to disciplinary action, to be at the lower end of the scale of seriousness. It noted that these debts have been satisfied. In relation to the failure to co-operate fully with ACCA, the Committee considered it an important obligation on professionals to cooperate fully with their regulator and in its judgment Mr Raza s failure to respond promptly and fully was not acceptable. However, the Committee had no doubt that the misconduct on the basis of the threat to kill Mr A was very serious behaviour by a professional. 37. It considered the following to be aggravating factors: Mr A suffered material distress The threat was not pre-meditated but was, however, deliberate The period of non-full co-operation with ACCA was repeated over several months 38. It considered the following to be mitigating factors: The threat was an isolated incident, made at time when Mr Raza was under some domestic stress and was out of character and was not pre-meditated Previous good record No repetition of the behaviour Relevant and appropriate references 39. The Committee had specific regard to the public interest and the necessity to declare and uphold proper standards of conduct and behaviour.

13 Although outwith his practice as an accountant, such behaviour to his landlord by a member of the accountancy profession undermines its reputation and public confidence in it. 40. The Committee also noted that Mr Raza has apologised today through his Counsel and expressed remorse about the impact of his behaviour on the profession. It noted that through the operation of the rules and the intervention of this case that Mr Raza had, in fact, not had the benefit of a Practising Certificate since Given the Committee's view of the seriousness of his conduct, it was satisfied that the sanctions of No Further Action, Admonishment, and Reprimand were insufficient to highlight to the profession and the public the gravity of the proven conduct, in particular, in relation to the threat to kill. 42. The Committee noted that the misconduct was deliberate, but that it was spontaneous and is no longer continuing. Further, it did cause some harm to Mr A. It accepted that Mr Raza has today shown some expression of regret, and submissions have been made as to his understanding of the seriousness of such behaviour and the consequences of it for the reputation of the profession. There was, however, no recognition of the impact of the behaviour on Mr A. The Committee was not persuaded that this single, spontaneous episode of misconduct, although deplorable, was in the particular circumstances, fundamentally incompatible with Mr Raza remaining a member. Taking the misconduct found and the two matters found proved in Allegation 1 and 4 globally, the Committee determined that a Severe Reprimand was the sufficient and proportionate sanction and made an order to this effect. COSTS AND REASONS 43. ACCA claimed costs in total of 28,792.56, based on a standard assessment of what work this case had involved. The Committee was unimpressed with the computer generated breakdown provided by the ACCA, which had been prepared as estimates and not been updated as the case has proceeded and contained two days hearing costs after the case was adjourned. Mr Apthorp submitted Mr Raza s statement of means and

14 maintained that, given not all the allegations had been proved, an award of 50% of the costs claimed was appropriate. 44. The Committee had regard to ACCA s Guide to Costs Orders in Disciplinary Proceedings and decided that it was appropriate to award costs in this case. It noted the problems with the breakdown provided by ACCA. It considered Mr Raza s statement of means and noted that he owns a share in a substantial property and a rental property, although his income has declined in the last years. The Committee determined that Mr Raza s actions and omissions brought the majority of the case on himself and, in all the circumstances, the majority of the costs incurred by ACCA were reasonable for work reasonably undertaken. It concluded that the sum of 18,000 was an appropriate and proportionate figure. Having regard to Mr Raza s means, the Committee decided it was an appropriate figure for him to pay. Accordingly, it ordered that Mr Raza pay ACCA s costs in the amount of 18,000. Mr John Wilson Chairman 25 September 2017