R v Andrewes (Rev1) [2022] UKSC 24

Andrewes obtained senior positions at a hospice and NHS trusts through CV fraud, lying about qualifications and experience. He performed his roles satisfactorily for over 10 years. The Supreme Court established that in CV fraud cases, confiscation should be limited to the profit gained—the difference between fraudulently obtained earnings and what the defendant would otherwise have earned.

Facts

Jon Andrewes applied for the position of Chief Executive Officer at St Margaret’s Hospice in 2004, falsely claiming to have multiple academic qualifications including degrees from Bristol and Edinburgh Universities, an MBA, and professional accounting qualifications. He also misrepresented his employment history extensively. Based on these false representations, he was appointed at a salary of £75,000. He subsequently obtained additional remunerated positions at Torbay NHS Care Trust (2007) and Royal Cornwall NHS Hospital Trust (2015) using similar false claims. Throughout his employment, Andrewes performed his roles satisfactorily, receiving positive appraisals. His fraud was discovered in 2015.

Criminal Proceedings

Andrewes pleaded guilty to one count of obtaining a pecuniary advantage by deception (Theft Act 1968) regarding the hospice position, and two counts of fraud (Fraud Act 2006) regarding the NHS positions. He was sentenced to two years’ imprisonment.

Issues

The certified question before the Supreme Court was:

Where a defendant obtains remuneration as a result of or in connection with an offence of fraud based upon the obtaining of employment by false representations or non-disclosure, in what circumstances (if any) will a confiscation order based on the wages earned be disproportionate within the terms of section 6(5) of the Proceeds of Crime Act 2002, or contrary to Article 1, Protocol 1 of the European Convention on Human Rights?

Judgment

The Supreme Court, in a judgment delivered by Lord Hodge and Lord Burrows (with whom Lord Kitchin, Lord Hamblen and Lord Stephens agreed), allowed the Crown’s appeal and restored the confiscation order of £96,737.24.

Rejection of the ‘Take All’ Approach

The Court rejected the Crown’s primary submission that full net earnings should be confiscated. Lord Hodge and Lord Burrows stated:

If the confiscation order did not reflect a deduction for the value of the services rendered, while requiring the defendant to repay the net earnings, the order would constitute double recovery or what can most accurately be labelled double disgorgement. Double disgorgement goes beyond disgorgement and constitutes a penalty. That would be disproportionate.

Rejection of the ‘Take Nothing’ Approach

The Court also rejected the respondent’s submission that no confiscation order should be made, noting that Andrewes would not have obtained the positions if the truth had been known, and that making no order would allow the fraudster to profit from his crime.

The Middle Way

The Court established a principled middle approach:

In our view, the answer in principle is that, at this stage in the analysis, where one is considering proportionality, the relevant benefit from the fraud that it is proportionate to disgorge is not the full net earnings but rather the difference between the higher earnings that Mr Andrewes has obtained and the lower earnings that he would have obtained had he not used fraud and hence had not been offered the particular job.

Exception for Criminal Services

The Court distinguished cases where the performance of services itself constitutes a criminal offence (such as practising as a surgeon without qualifications), where full confiscation would be proportionate because such services have no lawful value.

Implications

This judgment provides important guidance on confiscation orders in CV fraud cases under POCA 2002. It establishes that:

• Full net earnings confiscation would be disproportionate where the defendant has provided lawful services of full value
• No confiscation at all would improperly allow the fraudster to profit from crime
• The proportionate approach is to confiscate the profit from the fraud—the difference between actual earnings and what the defendant would otherwise have earned
• A broad-brush approach is appropriate, typically based on the percentage difference between the initial fraudulent salary and prior earnings
• Where the performance of services is itself criminal, full confiscation remains appropriate

The decision clarifies the application of the proportionality proviso in section 6(5) POCA, confirming it does not permit a general discretionary balancing exercise but focuses specifically on avoiding double disgorgement that would constitute an impermissible penalty.

Verdict: Appeal allowed. The Supreme Court restored the confiscation order of £96,737.24 made by Recorder Meeke QC. The linked compensation order was not upheld as there was no clear evidence of relevant loss.

Source: R v Andrewes (Rev1) [2022] UKSC 24