APPEAL COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS

Transcription

1 APPEAL COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS REASONS FOR DECISION In the matter of: Mr Khalid Naseem Sipra Heard on: 25 and 26 July 2016 Location: Committee: Legal Adviser: The Adelphi, 1-11 John Adam Street, London WCN 6AU Mr Ian Ridd (Chairman), Mrs Judith Glover (Accountant) and Dr Hazel Bentall (Lay) Mr Leighton Hughes Other persons present and capacity: Observers: Ms Hannah Kinch, Case Presenter on behalf of ACCA Ms Sophie Cubillo-Barsi (Hearings Officer) None 1. This is an application made by Mr Sipra for permission to appeal against findings and orders made the Disciplinary Committee of ACCA ("the DC") made on 2 May 2014, at the conclusion of a hearing that took place on 1 and 2 April 2014 and 1 and 2 May In addition, it is the hearing of the Appeals by Mr Sipra on the two grounds upon which he has already been granted permission to appeal. Mr Sipra was present in person but was not represented. 2. The Committee had before it appeal bundles referenced as A1 (pages ), A2 (pages 1-536), C1 (pages 1-830), and C2 (pages 1-587). References herein to pages are to numbered pages in those bundles. During the course of the hearing Mr Sipra produced further documents upon which he relied as follows: (i) (ii) (iii) (iv) Document headed "In the ACCA Appeal Committee", being an amended written request for permission to appeal, being an amended page C1 510A Document headed "Ms 3's Complaint...", being an amended page C1, 510P Document headed "Printout of Linkedin Profile...", being an amended page C1, 510SS-TT Document headed "Evidence submitted by Mr 4...", being an amended page C1, 510YY

2 (v) Document headed "Summary of Submission", being an amended page C1, 510JJJ (vi) Document headed "ACCA has not complied with directions" (vii) Printout from ACCA website headed "FAQs about complaint investigation" 3. References herein to Regulations are references to The Chartered Certified Accountants' Appeal Regulations The DC had found the following Allegation proved in its entirety: 1(a) Pursuant to bye-law 8(a)(i) Mr Sipra is guilty of misconduct in that: 1. On or around 30 July 2011, he prepared a curriculum vitae document in which he stated that he worked at Firm 2 between December 2009 and September 2010, and which he submitted to in support of an application for employment at the firm. 2. On 19 August 2011, he stated in an to Mr 4 of Firm 1 that Sarfraz Shah FCCA was formerly employed at Firm 2 as his former manager at the firm. 3. He stated in his "Linkedin" profile that between December 2009 and September 2010 he was employed at Firm His conduct in respect of allegations 1, 2 and/or 3 was: (a) Dishonest; and/or (b) Contrary to the Fundamental Principle of Integrity. 5. In finding the Allegation proved, the DC made a number of findings of fact, as are set out in paragraphs of its Reasons (pages C1, 23-24). The DC carefully considered all of the documentary exhibits adduced but made these findings of fact principally on the basis of oral evidence called before it, which evidence it accepted as truthful and accurate. To a lesser extent, the DC relied upon hearsay evidence from two witnesses not called by ACCA. As it recorded in its Reasons, the DC rejected the evidence given by Mr Sipra and the evidence given by his supporting witness Mr 6. In considering the issues raised on this appeal, the Committee bore in mind that the decisions of the DC were very much based upon its assessment of evidence that it had heard and had seen cross examined.

3 6. The DC ordered that Mr Sipra be removed from the affiliate register of ACCA with immediate effect. It ordered that no application for readmission should be made by Mr Sipra for a period of five years. It further ordered that he pay the costs of ACCA in the sum of 5, and that its decisions and orders be publicised by way of an news release to ACCA's website and the local press. 7. On 3 June 2014 Mr Sipra applied for permission to appeal the findings and orders of the DC. His application is set out at pages C1,11-16 and was supported by detailed grounds of appeal at pages C1, On 15 August 2014, Mrs Helen Carter, ACCA Appeal Committee Chairman (hereafter "the Chairman"), granted Mr Sipra permission to appeal on the basis that there was a real prospect of success on the following two grounds of appeal: i. Against the order for costs, solely on the basis that the costs order could result in severe financial hardship; ii. Against the order that no application for readmission should be made by Mr Sipra for a period of five years, on the basis that the combined effect of the investigation and the sanction order was to prevent Mr Sipra from being able to apply for full membership for a minimum period of between seven and eight years and that it was arguable this might be unjust, unreasonable or disproportionate. 9. The Chairman refused Mr Sipra's application for permission to appeal on all other grounds advanced. The Chairman's decision is found at C1, On 22 September 2014 Mr Sipra requested that his application for permission to appeal all of the findings and orders of the DC be reconsidered by the Appeal Committee. That written request is set out in full at pages C1-510A-510JJJ (supplemented by the further documents referred to above). The Background and allegations found proved by the DC 11. Mr Sipra became an ACCA affiliate on 7 February 2009.

4 12. On 24 August 2011, a complaint was received by ACCA from Ms 3, the then office manager of Firm 2, a UK accounting firm, that a false reference had been supplied by a Mr Sarfraz Shah on behalf of Mr Sipra for a job application to Firm 1 and that Mr Sipra had falsely claimed in a job application that he had been employed by Firm 2 between December 2009 and September 2010 and that Mr Shah had been his manager. 13. The background to the matters giving rise to the complaint is that in June/July 2011 Firm 1 placed an advertisement on websites to recruit an accountant for their Belfast office. On 30 July 2011 an was received from Mr Sipra which enclosed his CV. He was then invited to attend for interview in Belfast on 18 August The CV presented by the interviewee identified himself as Mr Khalid Sipra, with an address which is linked to the ACCA membership number of Mr Sipra. The CV stated that he had worked at Firm 2 from December 2009 until September The CV also contained a National Insurance number and the mobile telephone number of Mr Sipra. 15. On 19 August 2011 Mr 4 contacted Firm 2 to verify the details given in the CV and was informed that Mr Sipra had not worked there for the 9 month period claimed, but only for three days in June Mr 4 sought more information from Mr Sipra by , who replied that his manager at Firm 2 at the time had been Mr Shah and that he would provide a reference. ACCA's case is that Mr Shah subsequently provided a false reference to Firm 1 in support of Mr Sipra's application for employment. 17. During the investigation into the matters by ACCA, a "Linkedin" profile in the name of Khalid Sipra was examined. It was found to include information that he had worked for Firm 5 between September 2009 and December Mr Sipra had never worked there. 18. The DC conducted a joint hearing of the allegations against Mr Sipra and Mr Shah in April and May Mr Shah was found guilty of misconduct by reason of dishonestly providing a false employment reference to Firm 1 in support of Mr Sipra's application for employment. Mr Shah's appeal against the DC's findings and orders is the subject of a separate hearing, in accordance with directions made by a Chairman

5 of the Appeal Committee at a case management meeting on 19 May 2016, following an application made by Mr Sipra that the appeals be heard separately. The Committee's reconsideration of Mr Sipra's application for permission to appeal 19. In Mr Sipra's application for permission to appeal (C1,11-16), he set out in detail the grounds of his appeal, including a list of those findings made by the DC that he wished to appeal. Mr Sipra sought to rely upon all of the potential grounds of appeal for which provision is made in Regulation 5(2), namely: (a) (b) (c) (d) (e) (f) the Committee made an error of fact or law, which would have altered one or more of the Committee s findings or orders; the Committee misinterpreted any of the Association s bye-laws or regulations or any relevant guidance or technical standards, which would have altered one or more of the Committee s findings or orders; the Committee failed to take into account certain relevant evidence, which would have altered one or more of the Committee s findings or orders; there is new evidence not previously available, which would have altered one or more of the Committee s findings or orders; one or more of the Committee s orders is disproportionate and/or unreasonable in light of its findings; one or more of the Committee s findings and/or orders are unjust because of a serious procedural irregularity in the proceedings. 20. In considering Mr Sipra's application for permission to appeal, the Chairman analysed in detail what exactly the scope was of the various grounds advanced by Mr Sipra and set out in considerable detail the reasons why, in her view, those grounds, save for two in respect of which she gave permission to appeal, were not deserving of an order for permission to appeal. 21. At a hearing before the Committee, Mr Sipra re-presented his arguments in support of those grounds of appeal, together with some further embellishments and some further new documents. Essentially, however, his arguments before the Committee were the same as had been presented to the Chairman on paper. At the hearing before the Committee Mr Sipra produced and relied upon an amended and updated written argument, based upon his original reconsideration arguments (C ).

6 This revised document formed the basis of his final submissions and it was this document and those submissions that the Committee carefully considered in reaching its decisions on this appeal. 22. During the course of the hearing the Committee granted an application by Mr Sipra to amend his grounds of appeal by adding further grounds, pursuant to Regulation 10(3). His application is at pages C Miss Kinch, on behalf of ACCA, did not resist the application. 23. In deciding whether or not to grant permission to appeal on the grounds previously refused by the Chairman, the Committee considered carefully the original and the new arguments advanced by Mr Sipra, both orally and in writing. In the view of the Committee, the new arguments and documents added little to the arguments that had been presented already on paper. In considering these arguments, the Committee had careful regard to the analysis and reasoning set out in the Chairman's written decision referred to in paragraph 9 above. In the case of each ground separately, the Committee considered whether or not anything now said or advanced by Mr Sipra led to the conclusion that the analysis and decision of the Chairman on these grounds was wrong. 24. Mr Sipra's grounds of appeal fell into two broad categories. Firstly a Procedural category, where he complained that the investigation and the bringing of the complaint against him had been in breach of ACCA's own rules and guidance, and secondly, an Evidential category where he complained that inadmissible evidence had been admitted and relied upon, that the DC had wrongly accepted and relied upon evidence given before it, that the burden of proof had not been properly applied by the DC and that the DC had wrongly rejected evidence both from Mr Sipra and from his witness Mr Further, with the permission of the Committee, Mr Sipra advanced three new grounds of appeal (C ): that the hearing before the DC of the complaint against him had been unfair because that hearing had been joined with the disciplinary proceedings against Mr Shah;

7 that some of the decisions of the DC were inconsistent with the decisions reached by another, differently constituted, ACCA disciplinary Committee; and; that the sanction imposed upon him was disproportionate and unreasonable. 26. The Committee noted that in relation to each of the findings alleged by Mr Sipra have been made wrongly by the DC the Chairman, in her written decision, had considered whether or not points taken by Mr Sipra in this regard constituted any valid grounds of appeal. Her reasons for deciding that they did not are set out in paragraphs 31 to 70 of her written decision. At the hearing before the Committee, Mr Sipra did not specifically address each of the criticised findings, although these findings and his complaints about them did surface in some of his specific grounds of appeal. The Committee considered carefully the reasoning of the Chairman in deciding that these complaints founded no good grounds of appeal and could find no fault in it. The Committee therefore adopted and accepted the reasoning of the Chairman in relation to these matters. 27. In relation to the specific submissions made by Mr Sipra at the appeal hearing, the Committee considered firstly the Procedural complaints made by him. He asserted for a number of reasons that ACCA's investigation into the complaint made against him had not been carried out in accordance with ACCA rules with ACCA's own guidance. He argued further that the decision by the independent assessor to refer the complaint to the DC had not been made in accordance with Rule 4(4)(c) or 3(a)(c). Mr Sipra argued also that the hearing before the DC was invalid and of no effect, being in breach of ACCA Bye Laws 2, 9(1)(a), 9(1)b), 9(2), and In support of his arguments, Mr Sipra relied upon and restated the arguments that he had presented on paper to the Chairman, supplemented by some further points, set out in the additional documents that he presented to the Committee. Having considered all these arguments, and having considered the rulings on those arguments made by the Chairman in her written decision, at paragraphs , the Committee was unable to identify any argument that it could characterise as having a real prospect of success on appeal. In the view of the Committee, as a matter of fact, no material breach of any ACCA Bye Law, Rule or guidance had been established by Mr Sipra. He was also unable to point to any non-compliance with any rule or regulation that would have altered one or more of the DC's findings or orders. The

8 Committee could find no fault in any part of the reasoning of the Chairman in her wholesale rejection of all these points. The Committee regarded the whole of the arguments advanced by Mr Sipra asserting these procedural defects as being without any foundation or merit at all. 29. The Committee considered next the arguments advanced by Mr Sipra on Evidential matters. Mr Sipra restated and re-argued his point that the DC had wrongly admitted inadmissible evidence, in that it had admitted the hearsay documentary evidence from Ms 4 and Mr 7. In considering this argument, the Committee bore in mind that the evidence of these witnesses was very much subsidiary evidence, the principal evidence against Mr Sipra deriving from the evidence of Mr 8 and Mr 4, both of whom gave oral evidence to the Committee and were cross examined by Mr Sipra. They were found by the Committee to be reliable and truthful witnesses. The Committee noted also that only limited challenge had been made by Mr Sipra to the evidence of the two hearsay witnesses. 30. Mr Sipra argued that the authorities to which he referred the Committee provided support for his proposition that in disciplinary proceedings hearsay evidence is simply inadmissible. The Committee accepted the submissions of ACCA that this was not the case and that in appropriate circumstances hearsay evidence was properly admissible, the weight of such evidence to be in every case a matter of assessment by the Committee. It was plain that the DC had considered carefully, applying the correct legal tests, whether or not to admit this evidence. It was plain also that the DC was mindful that, in assessing the weight to be given to this evidence, it has to bear in mind that live evidence had not been called and there had been no opportunity for cross examination. In the view of the Committee, the decision of the DC to admit this evidence, and its assessment of the weight to be given to this evidence, could not be faulted. 31. Mr Sipra argued further that the evidence of Mr 8 and Mr 4 was not reliable evidence and was not evidence that the Committee ought to have relied upon in finding the allegation against him proved. In his written and oral submissions, Mr Sipra sought to show contradictions, inaccuracies and weaknesses in the evidence of these two witnesses. These were substantially the same arguments that had been raised before and considered by the DC. In the view of the Committee, none of these arguments had any weight or merit. The DC had heard the evidence of these two witnesses and had heard them being cross-examined. On the basis of that evidence,

9 which it had accepted, the DC made the findings of fact set out in the Reasons. There was no basis upon which the Committee could interfere with any of those findings. 32. Mr Sipra made a general submission that throughout the proceedings, the DC had wrongly applied the burden of proof. He asserted that the DC in practice had placed upon him the burden of showing that he had not done what was alleged. Having read the reasons with care and having noted from the transcript the legal advice that had been given to the DC by its legal adviser, the Committee could find no basis at all for this assertion. It was plain that the DC had found the allegations proved on the basis of findings of fact made by it on the evidence put before it by ACCA. The DC had had regard to all the evidence put before it on the point and had not in any sense required Mr Sipra to prove his innocence. In the view of the Committee this submission was unfounded. 33. Mr Sipra complained that the DC had been wrong to attach no weight to the documentary evidence put forward by him as showing that on the day of the interviews he had not been and could not have been in Belfast, because he had been in London. Mr Sipra cited this as a specific example of the DC putting the burden of proof on him to prove his innocence. In the view of the Committee this argument was simply unfounded. The DC had considered the evidence put forward by Mr Sipra on this point but had decided that it did not at all establish that Mr Sipra could not have been in Belfast on the day in question. In the circumstances, it rejected Mr Sipra's case on that point. As noted above, the finding of the DC that Mr Sipra had indeed been in Belfast and had attended the interviews was based upon accepting the evidence of Mr 8 and of Mr 4, together with consideration of the passport provided before the interview to Mr 4. In addition, Mr 4 had contemporaneous s from which he could refresh his memory. Both Mr 4 and Mr 8 had interviewed Mr Sipra on the day in question, Mr 4 for about 45 minutes and Mr 8 for about 15 minutes. Both Mr 4 and Mr 8 had identified Mr Sipra as being the person he interviewed from a photograph of Mr Sipra that had been shown to him. 34. Mr Sipra complained that the DC had been wrong to reject the evidence of his witness, Mr 6, asserting that this rejection had been on wholly insufficient grounds. In the view of the Committee there was no merit in this assertion: the DC having heard and assessed the evidence of Mr 6, was fully entitled to reject it.

10 35. Mr Sipra complained that in making its finding of fact that he had attended the interview in Belfast the DC had failed to take into account the fact that he had been the victim of identity fraud. In the view of the Committee, the evidence before the DC that Mr Sipra had in fact been such a victim was tenuous and unsupported by any direct evidence. It was plain however that the DC had been aware that Mr Sipra was contending that certain of his documents had been wrongly used by a third party, but had rejected this line of defence. In any event however, the finding that Mr Sipra had attended the interviews was based upon the evidence of Mr 4 and Mr 8, who confirmed that Mr Sipra had attended the interviews and that they had interviewed him. 36. Mr Sipra complained that the DC had wrongly thought that he had accepted that he had had a LinkedIn profile, the one referred to in the course of the hearing. It seemed to the Committee that Mr Sipra may not ever have accepted that fact. That error however in the view of the Committee was irrelevant to the decision-making process of the DC. What was plain from the Reasons was that the DC was aware that Mr Sipra was contending that the LinkedIn profile had not been created by him. Whether or not he had accepted that the profile was his was in the circumstances immaterial to the DC's decision on the allegation. 37. Mr Sipra complained overall that in its conduct of the hearing and in its assessment of the evidence and its making findings against him, the DC had failed to take into account sufficiently or at all the fact that he was unrepresented, being unable to afford legal representation. Having considered the Reasons and having read the transcript of the hearing, the Committee could find no basis at all for this complaint. On the contrary, it was clear from the transcript that the DC, advised and assisted by its legal adviser, had taken every possible step to ensure that Mr Sipra suffered no disadvantage from being unrepresented and had taken every step to endeavour to ensure that Mr Sipra fully understood and followed the procedures at the hearing. Further, having regard to the way in which Mr Sipra had capably and comprehensively presented his arguments to the Committee on the appeal, there was little to suggest that Mr Sipra would have suffered any material disadvantage from being unrepresented before the DC. At the appeal hearing Mr Sipra demonstrated a complete mastery of the documents and demonstrated an ability to tenaciously present his arguments.

11 38. In the circumstances, and for these reasons, the Committee was satisfied that none of the grounds of appeal for which permission to appeal had been refused by the Chairman had any real prospect of success on the grounds set out. 39. The Committee then turned to consider the new grounds of appeal. The first of these was that the hearing before the DC had been unfair because it had been joined to the disciplinary proceedings in relation to Mr Shah. No reasoned explanation of what this unfairness was, or how it arose, was presented by Mr Sipra. The Committee could see no basis for there having been any such unfairness. In the view of the Committee, this ground of appeal had no real prospect of success. 40. The second new ground was that certain decisions of the DC were inconsistent with the decisions reached by another, differently constituted, ACCA disciplinary Committee. In the view of the Committee this new ground was simply unarguable. Any finding by a Disciplinary Committee is entirely fact sensitive and is of no relevance at all to another Committee considering a completely different set of facts in a different case. No question could possibly arise in this context of a decision by one Committee on a particular set of facts constituting a binding precedent for a different Committee in a different case. 41. The third ground of appeal was that the sanction imposed upon Mr Sipra had been disproportionate and unreasonable. In the view of the Committee this argument had no prospect of success at all. The DC, as it had made clear in its Reasons, had found the misconduct and dishonesty on the part of Mr Sipra to be very serious indeed. It was clear from the Reasons, and also from consideration of the legal advice that the DC had received, that in reaching its decision that the appropriate sanction was removal from the affiliate register, it had followed an entirely correct reasoning process. It had had appropriate regard to ACCA's Guidance on Sanctions. and had reached a conclusion that could not be faulted on appeal. The Committee's decision on Mr Sipra's appeal in respect of the grounds for which permission to appeal had been granted 42. The first of these grounds related to the order of the DC that no application for readmission to affiliate membership by Mr Sipra should be made until the expiration of a period of five years. This was plainly an order that was within the power and discretion of the DC to make: the question for the Committee was whether or not Mr

12 Sipra could satisfy it that the order had been wrongly made, in the sense of being disproportionate or unreasonable. 43. It was very plain from the DC's Reasons, at paragraphs 41-45, that it had concluded that Mr Sipra's misconduct and dishonesty had been extremely serious, with marked aggravating factors. In those circumstances, and in the light of that view, it seemed to the Committee that it could not be said that the order made was either disproportionate or unreasonable. On the contrary, it seemed to the Committee to be an order that had been perfectly properly made. 44. The Committee considered carefully the arguments advanced by Mr Sipra that because of the length of time it had taken ACCA to investigate the complaint made against him, and because of the time that had elapsed since 2011, it was wholly unfair to impose this five-year restriction. Mr Sipra argued that the practical effect was to blight a period of eight years of his career as an accountant. In the view of the Committee however, this argument carried little weight and was insufficient to lead to the conclusion that a five-year restriction was either disproportionate or unreasonable in the serious circumstances of this case. For these reasons, the Committee dismissed Mr Sipra's appeal on this point. 45. The second ground upon which Mr Sipra had been granted permission to appeal was that the order for costs made by the DC could result in severe financial hardship for him. In the view of the Committee, in order to succeed on this ground, the burden was on Mr Sipra to demonstrate that, as at today's date, if he was obliged to pay the costs ordered he would indeed suffer severe financial hardship. 46. The evidence put forward by Mr Sipra about his current financial position was in the view of the Committee wholly inadequate. A statement of means (C2-240) prepared by him showed, with minimum detail, that he had a net monthly income of 500 and outgoings of 500 and contained the bald statement that he did not have any assets. In support of these contentions, Mr Sipra produced two seemingly random pages of bank statements, containing no financial information of any significance. Despite prompting and questioning by the Committee, Mr Sipra was unwilling to provide any further detail or information about either his sources of income or the destinations of his outgoings. The Committee in the circumstances felt unable to accept as true or accurate that the picture of his finances that Mr Sipra was seeking to advance. The

13 Committee in fact felt that Mr Sipra was not being truthful about his financial circumstances. 47. In response to questions from the Committee as to why was there was so little detail or documentation relating to his financial position, Mr Sipra responded that the burden had been upon ACCA to advise him of the need to provide such detailed documentation, but that ACCA had failed to do so. The Committee did not accept this as either an accurate statement of ACCA's responsibilities or as any explanation for his failure to provide the detail. This was particularly so as the Statement of Financial Position provided by ACCA for completion by Mr Sipra contained at the top the words "to be supported by documentary evidence where appropriate." Mr Sipra had been an graduated affiliate member of ACCA and the preparation of a properly detailed and adequately supported statement of his means should not been a difficult matter for Mr Sipra to deal with, had he been of a mind to do so. 48. In the circumstances there was no evidential basis upon which the Committee could make any finding about the current financial position of Mr Sipra, nor about whether he would suffer severe financial hardship if required to pay the costs order. In considering the overall position, the Committee bore in mind that ACCA is always prepared to negotiate the payment of costs orders by instalments, according to the means of the paying party. 49. In the circumstances and for these reasons, the Committee dismissed Mr Sipra's appeal on the costs point. Costs and Reasons 50. Ms Kinch, on behalf of ACCA, made an application that Mr Sipra pay ACCA's costs of this Appeal in the sum of 3,445. She submitted that the sum claimed was a substantial underestimate of the costs actually incurred, for example by making no provision for the numerous interlocutary hearings that have taken place or for the case presenter's attendance on this second day of the appeal hearing. Miss Kinch acknowledged that sum includes a figure for the presence of the ACCA senior investigations officer at the hearing, and that he had not in fact attended the hearing, but submitted that this was outweighed by the substantial sums incurred elsewhere but not claimed.

14 51. Mr Sipra did not accept that the sum claimed was fair and submitted that the breakdown of costs was inadequate. 52. The Committee considered that the costs had been reasonably incurred by ACCA in responding to Mr Sipra's unsuccessful appeal. In all the circumstances, deducting the sum of 1000 for the non-attendance of the Senior Investigations Officer, it was satisfied that the sum of 2445 was a proper figure for work reasonably undertaken and that Mr Sipra should pay that sum to ACCA. There was no evidential basis upon which the Committee could further reduce that sum on the grounds of Mr Sipra's ability or otherwise to pay. Accordingly the Committee ordered that Mr Sipra pay ACCA's costs of the appeal in the sum of Mr Ian Ridd Chairman 26 July 2016