2 SET 2013
Mr Rowland Saunders
Disciplinary Panel hearing - 28 August 2013
This is an Appeal Panel convened to hear the appeal of Mr Rowland Saunders from a decision of the Disciplinary Panel to expel him from membership of the RICS. As such, the Panel is governed by Rules 59 to 70 of the Disciplinary, Registration and Appeal Panel Rules 2009.
A preliminary issue has arisen in that the Panel has been asked to consider new evidence in the form of a medical report which, the Panel is informed, speaks of the state of mind of Mr Saunders at the time that the breaches (which are admitted) occurred.
Rule 64 provides, inter alia, that the Appeal Panel shall review the decision of the Disciplinary Panel. The proceedings are not strictly a rehearing. Rule 65 provides that new evidence may only be adduced with the leave of the Panel.
There is no guidance as to how Panels should exercise their discretion, though skeleton arguments and submissions helpfully provided by Mr Aldred on behalf of Mr Saunders and by Mr Gutteridge on behalf of the RICS have drawn the Panel’s attention to a number of cases in this regard.
The Panel does not propose in this ruling to refer to those cases or to rehearse every argument presented to it.
The Panel has decided to admit the new evidence. This is an appeal against penalty and the state of mind of Mr Saunders at the time of the breaches may be relevant to penalty. It can be argued that Mr Saunders could and should have obtained this evidence earlier, and especially having regard to the strictures of the disciplinary Panel that he should do so. The Panel is mindful, however, that Mr Saunders was not represented and that, by reason of the very nature of the issues raised in the fresh evidence, there may be some doubt as to whether he appreciated the importance of adducing evidence of this nature. Mr Saunders informed the Disciplinary Panel that he went to his GP to obtain some evidence of what he believed would fulfil the Disciplinary Panel’s expectations, but was informed by the GP that it was not necessary.
The bottom line for this Panel is whether the new material is going to assist it in the fair determination of this appeal, and the Panel believes that it is.
This is the resumed hearing of the appeal of Mr Rowland Saunders.
The Appeal Panel has considered the new evidence, and has reached the view that it would have been material to, though not necessarily determinative of, the decision of the Disciplinary Panel as to penalty. The Panel believes that, had it been aware of the new evidence, the Disciplinary Panel may well have held back from expelling Mr Saunders.
The Appeal Panel has therefore reconsidered the penalty in the light of the Sanctions Policy. It should be said at this stage that under the Policy, a breach of an undertaking imposed by a Disciplinary Panel is normally met with expulsion, except where extenuating circumstances are present. The Appeal Panel is satisfied that the medical condition which affected Mr Saunders was such as to amount to an extenuating circumstance. The Appeal Panel believes that the Disciplinary Panel was wrong within the meaning of the Rules, though through no fault of its own, in its decision to expel Mr Saunders. That is not necessarily the end of the matter. The medical evidence now before the Panel reflects that Mr Saunders still has serious medical issues and it must remain for the Appeal Panel to consider whether, in the light of the new evidence, it remains of the view that expulsion is still appropriate as a continuing measure to protect the public.
The Appeal Panel believes that the public interest can properly be served by the imposition of conditions on Mr Saunders membership. The Appeal Panel also believes this may be conducive to Mr Saunders’ recovery and it will mean that he remains within the jurisdiction of, and is regulated by, the RICS in the performance of any further surveying activity. The Appeal Panel has reached the view that Mr Saunders may retain his membership, but on condition that he shall not practise as a Chartered Surveyor as a sole practitioner or as a director or controller or other officer of a company or firm engaged in the provision of surveying services to the public.