DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS REASONS FOR DECISION In the matter of: Mr Musabek Akbarov Heard on: Monday, 15 August 2016 Location: The Adelphi, 1-11 John Adam Street, London, WC2N 6AU Committee: Dr Jonathan Page (Chairman), Mr Arif Kamal (Accountant), Ms Helen Carter (Lay) Legal Adviser: Mr Robin Havard Persons present and capacity: Mr Hamish Common (Case Presenter on behalf of ACCA), Miss Rachael Davies (Hearings Officer) Observers: None PRELIMINARY APPLICATIONS SERVICE OF PAPERS 1. Notice of proceedings was sent to the registered address of Mr Akbarov by letter of 12 July 2016. The Notice contained the information prescribed by Regulation 10 of the Complaints and Disciplinary Regulations 2016 ("CDR2016") and more than 28 days' notice had been given. Consequently, there had been compliance with CDR10 and CDR22 and the Committee was satisfied that the proceedings had been properly served. PROCEEDING IN ABSENCE 2. Mr Akbarov had initially engaged with ACCA by emails dated 14 February 2015 and 24 March 2015. However, Mr Akbarov had not shown a willingness to engage since then. Mr Akbarov failed to respond to the letter of 12 July 2016. 1
3. On 2 August 2016, ACCA sent to Mr Akbarov by email the documents sent by letter of 12 July 2016. The email address matched the address shown on Mr Akbarov's registration. Furthermore, the email address matched the address of the emails received from Mr Akbarov dated 14 February 2015 and 24 March 2015. The records show that the email of 2 August 2016 was delivered. 4. On 2 August 2016, ACCA attempted to telephone Mr Akbarov using the number that had been provided by him. The call was answered but it was then not possible to identify or understand the person on the line which then became disconnected. 5. ACCA tried again on 2 August 2016 to telephone Mr Akbarov. Whilst the call was answered, there was a lot of background noise, the person did not identify himself and the line was then disconnected. 6. The Committee concluded that ACCA had done all that could be expected of it to ensure that Mr Akbarov was aware of today's hearing. Despite the correspondence sent to him, Mr Akbarov had not responded. In the circumstances, the Committee did not consider that, if the matter were to be adjourned, there was any realistic prospect that this would lead to Mr Akbarov engaging with the process in advance of any adjourned hearing. The Committee had concluded that Mr Akbarov had waived his right to attend. 7. Taking account of the seriousness of the allegations, and the evidence in support of those allegations, it was in the public interest to proceed and the Committee considered that it was able to reach proper decisions on the evidence available to it. ALLEGATIONS Allegation 1 a) Pursuant to bye-law 8(a)(i), it is alleged that Mr Musabek Akbarov is guilty of misconduct by reason of possessing and/or using and/or 2
intending to use unauthorised materials to gain an unfair advantage, during an F5 examination on 1 December 2014, contrary to Examination Regulation 5, 6, and/or 8. b) Mr Musabek Akbarov's conduct in respect of Allegation 1(a) above is: i Dishonest ii Contrary to the fundamental principle of integrity and/or Allegation 2 a) Pursuant to bye-law 8(a)(iii), it is alleged that Mr Musabek Akbarov is liable to disciplinary action by reason of possessing unauthorised materials, during and F5 examination on 1 December 2014, contrary to Examination Regulation 6. DECISION ON FACTS/ALLEGATIONS AND REASONS Allegation 1(a) 8. The Committee had been provided with a hearing bundle (pages 1-78), an additional bundle (pages 79-89) and a service bundle (pages 1-12). The Committee had also heard evidence from Person A, who joined the hearing by telephone. 9. On 18 March 2014, Mr Akbarov became registered as an ACCA student. Whilst he had been exempted from sitting the F1 F3 ACCA examinations, he had not been exempted from sitting the F5 paper. 10. On 1 December 2014, Mr Akbarov attended the 1888 101 Tashkent exam centre to sit the F5 examination for the first time. The exam commenced at 2.00 pm and was due to last for three hours plus fifteen minutes additional reading time at the start of the exam. 11. All candidates sitting the exam were made aware of the relevant Examination Regulations. Prior to an examination, all candidates received an attendance docket containing the ACCA guidelines and regulations. Of particular relevance were the following provisions which reflected the Examination Regulations: 3
Point 5 you are not allowed to take to your exam desk any books, notes or other materials except those outlined in the guidance below. These are known as "unauthorised materials"; Point 6 you are not allowed to possess any unauthorised materials while the exam is in progress (whether at your desk or otherwise); Point 8 you are not allowed to use, or attempt to use, or intend to use, any unauthorised materials while the exam is in progress; Point 9(a) if you breach exam regulation 5 and/or 6 and the "unauthorised materials" are relevant to the syllabus being examined, it will be assumed that you intended to use them to gain an unfair advantage in the exam. In any subsequent disciplinary proceedings, you will have to prove that you did not intend to use the unauthorised materials to gain an unfair advantage in the exam. 12. In addition, Person A confirmed that, before the examination commenced, the supervisor made various announcements in accordance with the list contained in the script entitled "Supervisor's announcements to candidates" and drew candidates' attention to the regulations and guidelines. Paragraph 6 stated, "Please remove all items, other than those listed on your attendance docket, from your desk now". It then set out in clear terms the potential consequences if candidates were found in possession of unauthorised materials in breach of the Examination Regulations. 13. In a form entitled SCRS1 which Person A completed on the day of the exam, she stated that she was alerted to the fact that Mr Akbarov may be cheating at approximately 4.00 pm as she, "..noticed that this candidate was nervous and it seemed to me that he was using/looking at smth under his desk. When I came up to him, I found a booklet (ACCA F5)" (sic). Person A described the behaviour of Mr Akbarov as, "nervous, He (regularly) looked at me". The alleged unauthorised material, namely the booklet, was found about Mr Akbarov's desk. 4
14. Person A stated that she took the booklet from Mr Akbarov but allowed him to continue the exam. 15. The unauthorised material consisted of a Becker ACCA Paper P5 Performance Management book. The SCRS1 form was signed and dated on the day of the exam, namely 1 December 2014. 16. A form SCRS2 was completed by Mr Akbarov and he put forward the following explanation, "I did not use the booklet during exam time (from the beginning of the test). I did not pay attention on Supervisor announcement. I did not know that it can be on the desk" (sic). 17. On 8 January 2015, an examiner, Person B, completed a document entitled "December 2014 Examination Irregular Script" in which she confirmed that the material found on Mr Akbarov's desk was relevant to the syllabus and was relevant to the particular examination. Person B commented as follows, "this is a small study text so it is relevant to the whole exam. However, given I was not present, it is impossible for me to say if it has been used". The Committee had studied the booklet and was satisfied that the text contained in it was relevant to the exam being sat by Mr Akbarov. 18. When asked for further clarification, Person B sent an email to ACCA on 6 August 2015 confirming that it was impossible to say whether or not the material had been used by Mr Akbarov. 19. When asked for his explanation, Mr Akbarov sent an email dated 4 February 2015 to Exams Conduct stating, "I prepared my F5 exam with using my own a small pocket book at 1 December 2014 before beginning the exam. But later I put it on my desk, near my bag. I didn't use it during the exam time. At the end of the exam, supervisor saw that book which stayed on the desk. And, she wrote an evidence besides my orally explanations (how I put it there and didn't use it during the exam). I hope that you will solve fair decision". (sic) 20. In response to a letter of 12 March 2015 from ACCA which requested an explanation with regard to his alleged conduct, Mr Akbarov sent an email of 5
24 March 2015, the content of which was exactly the same to his email of 4 February 2015. 21. The Committee was not satisfied that Mr Akbarov had provided a satisfactory explanation for having the booklet in his possession. The Committee also accepted the account provided by Person A who had stated that Mr Akbarov had left his bag at the end of the hall, but then noticed that he was acting nervously and looking underneath the table. When Person A approached him, she found that Mr Akbarov had the booklet resting on his leg under the table and that his fingers were separating the pages of the booklet. 22. In the circumstances, the Committee did not accept Mr Akbarov's account that he had not listened to the Supervisor's account and that he had not used the booklet in the course of the exam. 23. Consequently, the Committee was satisfied that Mr Akbarov had acted in breach of Examination Regulations 5, 6 and 8 and that Mr Akbarov had failed to prove that he did not intend to use the booklet to gain an unfair advantage. Indeed, the Committee had found that he did intend to use the booklet to gain an unfair advantage in the exam. 24. On the basis of its findings, the Committee found Allegation 1(a) proved in that Mr Akbarov was guilty of misconduct in that such conduct brought discredit to himself, the Association and the accountancy profession. Allegation 1(b) 25. The Committee repeated its findings as outlined above. On the basis of such findings, and in particular that Mr Akbarov had deliberately used the booklet to gain an unfair advantage in the exam, the Committee was satisfied that, by the standards of reasonable and honest people, Mr Akbarov's conduct was dishonest. Furthermore, Mr Akbarov would have known that, by those standards, his behaviour was dishonest. 26. Consequently, the Committee found allegation 1(b)(i) proved. 6
27. For the same reasons, the Committee found that Mr Akbarov acted contrary to the Fundamental Principle of Integrity and found allegation 1(b)(ii) proved. Allegation 2 28. Taking account of its findings in respect of allegations 1(a) and (b) above, the Committee made no findings in respect of allegation 2. SANCTIONS AND REASONS 29. In reaching its decision on whether it was appropriate to impose a sanction and, if so, the nature of that sanction, the Committee took full account of the guidance contained within the document entitled Guidance for Disciplinary Sanctions. 30. The Committee considered whether it would be appropriate to conclude the proceedings without the imposition of a sanction but decided that the conduct of Mr Akbarov was far too grave for this to be a realistic outcome. 31. Mr Akbarov had endeavoured to maintain his innocence when corresponding with ACCA. He had shown no remorse and had failed to supply any information to the Committee which could amount to mitigation. Indeed, he had failed to engage with the disciplinary process. 32. The Committee concluded that, as a consequence of the seriousness of its findings, to include a finding of dishonesty, Mr Akbarov also failed to meet any of the criteria which would justify either an admonishment, or a reprimand or a severe reprimand. 33. The conduct of Mr Akbarov amounted to a serious departure from relevant professional standards. In particular, the dishonest conduct on the part of Mr Akbarov could undermine the trust and confidence in the profession. 34. In the circumstances, the only sanction which the Committee considered to be appropriate, proportionate and sufficient, was for Mr Akbarov to be removed from the register of students in that his conduct was, and is, 7
fundamentally incompatible with continuing to be a student or to proceed to membership of ACCA. 35. The Committee also determined that Mr Akbarov shall not be entitled to apply for readmission until a period of one year has elapsed after the effective date of removal, and that he was disqualified from Exam Paper F5 taken by him on 1 December 2015. COSTS AND REASONS 36. ACCA applied for costs in the sum of 2,568.00. 37. The Committee had listened to the submissions of Mr Common with regard to the amount of costs being claimed and it considered that, taking account of the nature of the allegations and the amount of work involved, the claim for costs was reasonable. Furthermore, the Committee had received no information from Mr Akbarov with regard to his means and/or his ability or otherwise to pay any amount awarded against him. 38. Therefore, the Committee ordered Mr Akbarov to pay costs to ACCA in the amount claimed, namely 2,568.00. EFFECTIVE DATE OF ORDER 39. The effective date of this order will be the date of expiry of the appeal period referred to in the Appeal Regulations. Dr Jonathan Page Chairman 15 August 2016 8