DISCIPLINARY COMMITTEE OF THE ASSOCIATION OF CHARTERED CERTIFIED ACCOUNTANTS REASONS FOR DECISION In the matter of: Mr Adrian David Neave Thompson Heard on: Tuesday, 6 January 2015 Location: Committee: Legal Adviser: 29 Lincoln's Inn Fields, London WC2A 3EE Mrs Lubna Shuja (Chairman) Mrs Judith Glover (Accountant) Mr John Walsh (Lay) Mr Leighton Hughes Persons present and capacity: Mr Adrian David Neave Thompson, by live telephone link. Mrs Bernice Ash (Committee Officer) Mr James Bewley (Case presenter on behalf of ACCA) Observers: None 1. The Committee had bundles of papers numbering pages 1-94, 95-102 and 103-104. It also had on table papers numbered 105-1112. 2. ACCA was represented by Mr Bewley. Mr Thompson participated in the hearing by way of live telephone link. ALLEGATIONS Allegation 1 Pursuant to bye-law 8(a)(i), Mr Adrian David Neave Thompson is guilty of misconduct in light of the fact that he committed one act of Assault By Beating, contrary to Section 39 Offences Against the Person Act 1988 [sic].
Allegation 2(a) Pursuant to bye-law 8(a)(i), Mr Adrian David Neave Thompson is guilty of misconduct by reason of failing to disclose to ACCA the fact of his criminal conviction for Assault By Beating in any or all of the following documents: (i) 2009 CPD return dated 6 April 2010; (ii) 2010 CPD return dated 3 February 2011; (iii) 2011 CPD return received by ACCA on or around 27 March 2012; (iv) 2012 CPD return dated 12 November 2012; (v) 2010 Practising Certificate Renewal form dated 6 April 2010; (vi) 2011 Practising Certificate Renewal form dated 3 February 2011; (vii) 2012 Practising Certificate Renewal form dated 15 March 2012; (viii) 2013 Practising Certificate Renewal form dated 12 November 2012. Allegation 2(b) Mr Adrian David Neave Thompson s conduct also in relation to any or all of Allegations 2(a)(i) to 2(a)(viii) was: (i) Dishonest. (ii) Contrary to the Fundamental Principle of Integrity (as applicable from 2010 to 2012). Allegation 3 (a) Pursuant to bye-law 8(a)(i), Mr Adrian David Neave Thompson is guilty of misconduct by reason of failing to bring to the attention of ACCA the fact that his conviction for Assault By Beating may have rendered him liable to disciplinary action, contrary to bye-law 10(b) (as applicable 2009).
Or (b) Pursuant to bye-law 8(a)(iii), Mr Adrian David Neave Thompson has breached Bye-law 10(b) (as applicable 2009) by reason of failing to bring to the attention of ACCA the fact that his conviction for Assault By Beating may have rendered him liable to disciplinary action. BACKGROUND 3. On 6 November 2009 Mr Thompson was convicted in the West Dorset Magistrates Court of three offences of assault by beating. He appealed against those convictions and on 17 September 2010 in the Crown Court at Weymouth and Dorchester. Mr Thompson's appeal was allowed. At the rehearing of the case before the Crown Court two of the convictions previously recorded against Mr Thompson were quashed, but Mr Thomson remained convicted of one offence of assault by beating. In respect of that single offence Mr Thompson was sentenced to a Community Order comprising 100 hours unpaid work and ordered to pay compensation in the sum of 100 to the victim of his assault. 4. On 6 April 2010 Mr Thompson completed and signed his continuing professional development ("CPD") declaration for 2009. In so doing he declared, inter alia, as follows: "I further confirm that I have not been subject to any criminal, disciplinary or other matters within the terms of Bye-law 8 (liability to disciplinary action) that have not already been brought to the attention of ACCA's professional conduct Department." Mr Thompson did not declare his conviction before the Magistrates Court, albeit that it was pending an appeal hearing. 5. Thereafter, in Mr Thompson's subsequent CPD returns and practising certificate renewals sent to ACCA (itemised in sub paragraphs (ii) to (viii) of Allegation 2(a)) he failed to disclose to ACCA the fact of the conviction recorded by the Crown Court.
DECISION ON ALLEGATIONS AND REASONS 6. The Committee reminded itself that the burden of proving each of these Allegations rests upon ACCA. Mr Thompson does not have to prove anything. The standard of proof to be applied is that applicable to civil proceedings, usually referred to as the balance of probabilities'. Allegation 1 7. At the outset of the hearing Mr Thompson admitted the fact of his criminal conviction and that he is guilty of misconduct by reason of that conviction. Furthermore, the Committee was satisfied that the criminal conviction recorded against Mr Thompson has been proven conclusively by the documentation from the Crown Court dated 31 October 2013. Mr Thompson also admitted that he was guilty of misconduct by reason of this conviction. However the issue of misconduct remained a matter for the independent judgment of the Committee. 8. The Committee had substantial regard to the fact that misconduct in this case had been admitted by an experienced professional. However the issue of whether the facts admitted amount to misconduct remained one for the Committee. 9. The Committee accepted the advice of the Legal Adviser. "Misconduct" has no statutory definition and no clear definition can be derived from the case law. However the Committee was assisted by principles which it could derive from the authorities of Meadows -v- G.M.C. (2007) Q.B. 466, Roylance -v- G.M.C. [1999] Lloyds Rep.Med. 139 and The Queen (on the application of Remedy UK Ltd) -v- General Medical Council [2010] EWHC 1245 (Admin). 10. The Committee also had regard to ACCA Bye law 8(e)(i) which provides that the fact that a member has pleaded guilty to or been found guilty of any offence discreditable to him or derogatory to the Association or the accountancy profession before a court in the UK shall be conclusive proof of misconduct. The Committee considered the letter provided to it dated 19 September 2013 from Person A, which Mr Thompson submitted undermined
the conviction recorded against him. The Committee found this evidence to be hearsay and insufficient to amount to exceptional circumstances to permit the Committee to go behind the validly recorded conviction. In any event, Mr Thompson had not pursued an appeal on the outstanding conviction. The Committee found as a fact that Mr Thompson had been convicted of the offence of Assault by Beating by a Court in the United Kingdom. 11. The Committee was satisfied that a criminal conviction for an offence of assault upon another person, particularly in a domestic setting, was morally culpable, discreditable to Mr Thompson and derogatory to ACCA. The Committee considered it to be a departure from the standards expected of an ACCA member and concluded that Mr Thompson is guilty of misconduct by reason of being found to have committed a criminal act of assault by beating, which led to a conviction in a criminal court. Accordingly, the Committee found Allegation 1 proved. Allegation 2(a) 12. At the outset of the hearing Mr Thompson admitted the fact of each failure to disclose, but he denied that he was guilty of misconduct by reason of those failures. 13. The Committee bore in mind Mr Thompson's evidence that he did not disclose the conviction as he was awaiting the determination of his proposed appeal against the conviction. He also told the Committee that his interpretation of ACCA's Rulebook led him to believe at the time that the sort of conviction recorded against him would not give rise to a need to disclose this to ACCA. 14. The Committee found that Mr Thompson repeatedly had failed to disclose his conviction for a criminal offence to ACCA when he had a very clear obligation to disclose it. His failures were in the context of unequivocal declarations within important professional documentation provided to ACCA as his regulator. The Committee found that Mr Thompson ought to have known that he should have disclosed the fact of a recorded criminal conviction to his regulator at the earliest opportunity and on every occasion
when he was asked to make a declaration to confirm that he had not been subject to any criminal, disciplinary or other matters. Moreover, the Committee noted that a number of the false declarations were made by Mr Thompson after his appeal process had been concluded. 15. The Committee was satisfied that Mr Thompson's conduct in repeatedly failing to disclose his conviction to his regulator had the clear potential to undermine public confidence in the profession. It was behaviour falling short of what properly is expected of an ACCA Member and the Committee found that to characterise it as other than misconduct would fail to uphold proper professional standards and would undermine public confidence in the profession and in the regulatory function of ACCA. Accordingly, the Committee found Allegation 2(a) proved. Allegation 2(b) 16. Mr Thompson denied that his failure to disclose the fact of his criminal conviction in any of the documents provided by him to ACCA was dishonest conduct on his part, or that it was contrary to the Fundamental Principle of Integrity. 17. The Committee was in no doubt that a reasonable and honest person would consider Mr Thompson's repeated failures to disclose his criminal conviction to his regulator in response to clear and targeted questions in important professional documentation to be dishonest. 18. The Committee went on to consider whether Mr Thompson himself realised that by those standards his conduct was dishonest. It bore in mind Mr Thompson's unchallenged evidence that throughout this period he was suffering from a health issue. It also bore in mind his evidence that he had consulted ACCA's Rulebook to see what he should do, and that he clearly had "misunderstood" the rules. The Committee had regard to Mr Thompson's frank evidence that, with hindsight, he could see that he was "foolish" not to have contacted ACCA for advice or clarification.
19. In considering the question of dishonesty, the Committee also bore in mind the contents of the testimonial submitted to it today on behalf of Mr Thompson by Person B. 20. The Committee considered that Mr Thompson's repeated failings to disclose his conviction to ACCA, or to seek clear advice, demonstrated a failure to deal with his regulator in a straightforward manner, and thereby that he had acted in breach of the Fundamental Principle of Integrity. However, accepting Mr Thompson's evidence on this particular issue, the Committee was not satisfied that ACCA had established on the balance of probabilities that Mr Thompson himself knew that his conduct was dishonest by the standards of ordinary honest people. 21. Accordingly the Committee found Allegation 2(b)(i) not proved, but found Allegation 2(b)(ii) proved. Allegation 3 22. The Committee next considered whether Mr Thompson's failure to bring his conviction to the attention of ACCA was a breach of Bye Law 10(b), namely his obligation to bring to the attention of ACCA "any facts or matters indicating that [he] may have become liable to disciplinary action." The Committee was in no doubt that, as a very experienced member of ACCA, Mr Thompson ought to have known that he was under a duty to bring his conviction to the attention of ACCA and that his conviction was a matter that "may" render him liable to disciplinary action. 23. The Committee also bore in mind its findings in relation to Allegation 2(a), namely that his particular failures to disclose his conviction in 8 separate documents amounted to misconduct on the part of Mr Thompson. The Committee was satisfied that Mr Thompson's failure to bring his conviction to the attention of ACCA in any way at all was conduct that amounted to misconduct. It was behaviour falling short of what is expected of an ACCA member and to characterise it as other than misconduct would fail to uphold proper professional standards and would undermine public confidence in the profession and in the regulatory function of ACCA.
24. Accordingly, the Committee found Allegation 3 (a) proved. In the light of that finding, no determination is necessary upon the alternative Allegation 3(b). SANCTION AND REASONS 25. The Committee had regard to ACCA's "Guidance For Disciplinary Sanctions." The Committee was cognisant of the fact that the purpose of sanctions was not to punish Mr Thompson, even though it may have that effect. It had at the forefront of its considerations the public interest, which included not only the protection of members of the public, but also the maintenance of public confidence in the profession and in ACCA, and the declaring and upholding of proper standards of conduct and behaviour. 26. The Committee accepted the advice of the Legal Adviser that any sanction must be proportionate and that the Committee should consider sanction starting with the least restrictive and moving upwards. 27. The Committee considered that Mr Thompson's misconduct and proven behaviour which was contrary to the Fundamental Principle of Integrity amounted to significant departures from the standards expected of an ACCA member. The allegations concerned not only an assault in a domestic setting that led to a criminal conviction, but also failures by a repeated error of judgment over a prolonged period thereafter to disclose that conviction to his regulator in important professional documentation. There is no evidence of client harm or direct damage to the reputation of ACCA, but the Committee was satisfied that Mr Thompson's behaviour had the clear potential to undermine public confidence in the profession. 28. By way of mitigation, the Committee acknowledged that the misconduct giving rise to Allegation 1 was borne of strained and clearly volatile domestic circumstances. There has been no suggestion of any previous incidents or a repetition of such behaviour in the period of almost 6 years that have now elapsed. No issue of professional integrity is raised by the allegation. 29. Furthermore, the Committee had particular regard to Mr Thompson's previous unblemished professional record. It bore in mind the testimonial from Person B placed before the Committee today. It also bore in mind Mr
Thompson's acknowledgement in his evidence that, with hindsight, his failure to disclose his conviction had been foolish, and that he regrets his behaviour. The Committee accepted that this misconduct took place over a period in which he was suffering from a health issue, albeit that it has been provided with no independent evidence in relation to this, and when he was being placed under a degree of financial and emotional pressure by his partner. 30. Finally, the Committee bore in mind Mr Thompson's engagement with the regulatory process, his full admissions to ACCA at the earliest opportunity, the admissions that he now has made before the Committee, and the level of insight that Mr Thompson has now displayed. In all the circumstances the Committee assessed the risk of repetition of misconduct on the part of the Mr Thompson to be negligible. 31. The Committee first considered taking no further action in this case. It was in no doubt that to do so would fail to mark the gravity of Mr Thompson's misconduct and would undermine confidence in ACCA as a regulator. 32. Having decided that it was necessary to impose a sanction in this case, it considered the question of sanction in ascending order, starting with the least restrictive. 33. The Committee considered carefully whether the appropriate and proportionate sanction in Mr Thompson's case would be either an Admonishment or a Reprimand. In the light of the aggravating features which the Committee had identified it was in no doubt that none of these sanctions were sufficient. The Committee determined that to impose either of these sanctions would not adequately reflect the seriousness of the misconduct in this case. 34. The Committee concluded that the appropriate and proportionate sanction to impose upon Mr Thompson was a Severe Reprimand and that no lesser sanction could be justified. The Committee had regard to the applicable sections of the Guidance for disciplinary sanctions and found that detailed consideration of the aggravating and mitigating factors present in Mr Thompson's case enabled it to conclude that no greater sanction is
warranted. The Committee was satisfied that a Severe Reprimand is the appropriate sanction, reflecting the seriousness of the misconduct and lack of integrity, whilst maintaining public confidence and upholding proper standards in the profession. COSTS 35. ACCA claimed costs in the sum of 2,720. This figure had been specified in the papers, a copy of which was sent to Mr Thompson by post and email on 5 September 2014 when he was also advised of the Committee's power to award costs in the event of the allegations being proved. 36. Mr Thompson invited the Committee to find the amount of costs claimed to be excessive. Furthermore, he provided evidence of his earnings for the years 2011, 2012 and 2013, and the assets which he held. The Committee decided that this case has been properly brought and that it was appropriate to award costs. As to the sum claimed, the Committee considered that the sum claimed was fair and reasonable. It rejected Mr Thompson's submission that there had been an increase in the costs due to the instruction of a second Counsel or by third party delays for which the ACCA should bear a degree of responsibility. Accordingly, the Committee ordered that the Mr Thompson pay ACCA s costs in the amount claimed. EFFECTIVE DATE OF ORDER 37. This order shall take effect from the date of the expiry of the appeal period unless Mr Thompson gives notice of appeal prior to the expiry of that period, in which case it shall become effective (if at all) as described in the Appeal Regulations. PUBLICITY 38. ACCA s regulations require ACCA to publish the Committee s finding and orders by way of a press release, as soon as practicable. The Committee has discretion as regards to which publications the press release should be sent and discretion, in exceptional circumstances, to direct that the relevant person is not named.
39. Mr Thompson submitted that he had already been subject to adverse publicity due to an earlier error by ACCA and that he should not be subjected to further publicity. He submitted that the previous publicity amounted to an exceptional circumstance. The Committee had been provided with little information relating to the previous incident. The Committee also noted that there had been publicity in the local press arising from the conviction. The Committee found no exceptional circumstances in this case. It ordered that the press release should be issued to ACCA s website and to the local press, referring to Mr Thompson by name. Mrs Lubna Shuja Chairman 6 January 2015