21 APR 2011
Mr Richard Probert [ 1127733 ], Hereford, HR3
Wednesday 20 April 2011
RICS, Parliament Square, London, UK
Anne Seifert (Lay)
Barry Picken (Lay)
Rob Swan FRICS
RICS has received notification of your conviction by Worcester Crown Court on 24 March 2010 for the following: Making false instrument.
At the beginning of today’s hearing the Panel had to determine whether to proceed in the absence of Mr Probert who was not present and was not represented. Under Rule 30 the Panel first considered whether it could be satisfied that notification of today’s hearing had been properly served. It noted that the Notice dated 21 March 2011 was sent by Special Delivery and that RICS has submitted that the Notice was signed for. The Panel was satisfied that the Notice had been sent according to the Rules.
The Panel then considered whether to exercise its discretion to proceed, bearing in mind the various factors set out by the Legal Assessor. On balance the Panel concluded it was appropriate and reasonable to proceed having concluded that Mr Probert’s absence today was voluntary. The Panel had regard to the telephone attendance note of a call with Mr Probert on 18 April which indicated that he was aware of the hearing but did not intend to attend. There was reference to him sending further documents but it appears nothing has been received. The Panel considered that Mr Probert had been given adequate opportunity to make any representations or supply further information.
It was in the public interest and the interests of Mr Probert to proceed with today’s hearing.
Findings of Fact
The Panel finds as a fact that Mr Probert was convicted on 24 March 2010 at Worcester Crown Court upon indictment of making a false instrument under section 3 of the Forgery and Counterfeiting Act 1981. He was sentenced on 23 April 2010 to a Community Sentence of 250 hours and payment of costs.
The Panel was advised that this was a criminal offence which could result in a custodial sentence with a maximum penalty of 10 years imprisonment.
The Panel noted that it had very limited information about the circumstances of the conviction. It determined to give little weight to the newspaper report of the offence as it could not be satisfied that such a document would be accurate.
It was therefore not clear whether Mr Probert had personally gained from the false instrument although it appears he did not. It is suggested that the false instrument was produced to cover mistakes made in the course of his role managing a flat on behalf of a local businessman.
The Panel noted that Mr Probert did not receive a custodial sentence but did receive a significant community service order. Given the serious nature of the conviction, which must have involved the deliberate falsification of a document, the Panel was satisfied that Mr Probert should be liable for disciplinary action pursuant to Byelaw 5.2.2.
Having concluded that Mr Probert was liable for disciplinary action the Panel noted that he had no previous disciplinary history. They noted that after his conviction he had written to RICS to ask to resign his membership as a Trainee Member of RICS. Under Byelaw 5.2.3 a Member is not entitled to resign from membership until all disciplinary proceedings have been concluded (other than in exceptional cases at the discretion of the Head of Regulation). Mr Probert was not permitted to resign.
Mr Probert has not provided any further information about the circumstances of his conviction nor has he provided any details of mitigation or testimonials. Mr Probert could have afforded RICS better co-operation in relation to this matter with a clear indication of whether he admitted the charge and by providing details of the offence.
In his letter dated 4 May 2010 Mr Probert indicated that he had had full support from his employers, however the Panel has no further information as to the current position.
The Panel has concluded that this was a serious criminal conviction and accordingly neither a caution nor a reprimand would be sufficient to mark the gravity of the matter.
The Panel considered both conditions and undertakings but concluded that, in cases involving dishonesty, these are rarely appropriate; it must be a fundamental principle of membership of RICS that Members act with integrity and convictions such as this are likely to attract serious sanctions in the public interest.
In relation to a fine the Panel noted that no compensation order was made by the Court. It considered that a fine might be appropriate and sufficient in cases where the documentation was false or misleading as a result of omission or recklessness, or where it was prepared under duress. There was no suggestion that this was the case. The Panel concluded that a fine would not address the public interest concerns raised by this case.
After careful consideration the Panel concluded that, in this serious case, the only proportionate sanction is to expel Mr Probert from membership of RICS. Mr Probert is therefore expelled from membership with immediate effect.
Determination on Publication and Costs
The Panel directs publication in accordance with Supplement 3 to the Sanctions policy.
The Panel orders that Mr Probert pay the costs of RICS in this case of £3,445.
Mr Probert has 28 days to appeal this decision in accordance with Rule 59 of the Disciplinary, Registration and Appeal Panel Rules.