In R v Andrewes, the Supreme Court considered the rules about confiscating money under the Proceeds of Crime Act and how it should be applied to an individual who fraudulently obtained employment, having lied on their CV. After considering what sum was proportionate to repay, the court decided that it should confiscate the difference between the higher earnings and the lower earnings Mr Andrewes would have received if there had been no fraud.
Basic facts
When applying for the post of chief executive at St Margaret’s Hospice in Taunton in 2004, Mr Andrewes claimed on his CV that he had a first-class degree as well as two postgraduate qualifications. In addition, he claimed that he was studying for a PhD. In terms of his employment history, he alleged that he had significant relevant work experience, which included being the chief executive at a number of different charities.
Although none of this history was true, he was appointed CEO of the hospice in December 2004. He then told staff in 2006 that he had obtained his PhD and should thereafter be referred to as Dr Jon Andrewes. Using the same or similar lies, he was appointed to two remunerated roles as a director and then chair of the Torbay NHS Care Trust and chair of the Royal Cornwall NHS Hospital Trust. In annual reviews, his performance was assessed as strong or outstanding.
Mr Andrewes’ employment by St Margaret’s Hospice and his two trust appointments came to an end in 2015 when the truth about his background emerged.
Confiscation hearing
Following his conviction in January 2017 for obtaining a pecuniary advantage by deception and two counts of fraud, a confiscation order under the Proceeds of Crime Act 2002 was made against Mr Andrewes ordering him to pay just under £97,000. This was the sum assessed to be the benefit that was recoverable for his crime, based on a proportion of the total earnings he had received from his employment and the two NHS appointments.
Decision of Court of Appeal
Mr Andrewes’ appealed, arguing that as he had actually carried out the role of chief executive at the hospice, he had given full value for the remuneration he had received and the court’s decision, therefore, amounted to a “double recovery”. The Court of Appeal agreed and the Crown appealed.
Supreme Court decision
As its starting point, the Supreme Court held that it would be disproportionate to make a confiscation order of Mr Andrewes’ full net earnings over the relevant period (almost £650,000) because that would not take into account the value of the services he had provided before the crime was discovered. To do so would amount to a “double recovery” as Mr Andrewes had argued.
However, contrary to the decision of the Court of Appeal, the Supreme Court also held that it was unacceptable for no confiscation order to be made. Instead, the proportionate approach was to confiscate the difference between the higher earnings and the lower earnings Mr Andrewes would have received if there had been no fraud. This way, he would be forced to give up any “profit” he made through his lies but account would be taken of the fact that his employers benefitted from the services he rendered. As such, it constituted a principled middle way between the take-all approach of the Crown and the take-nothing approach adopted by the Court of Appeal.
The court made clear, however, that this reasoning would not extend to cases where it would constitute a criminal offence to be appointed to a job, such as that of a surgeon, pilot or HGV driver. In those circumstances where the person had lied about their qualifications or licence in order to be appointed, it would be appropriate to confiscate the full net earnings.
The Supreme Court, therefore, allowed the Crown’s appeal and restored the confiscation order for just under £97,000 originally made by the judge.
Comment
This case is an extreme example of CV fraud in which the employee had lied about their qualifications and experience to obtain a high-level post in the public sector.
As readers may remember, we reported on it as a news item in weekly LELR 787, stating that we would provide a fuller summary in due course.