Typically, confiscation orders, as set out in the Proceeds of Crime Act 2002 (POCA), are issued to recoup the fruits of a so-called ‘criminal lifestyle’ and locate substantial hidden assets. But this was turned on its head in the case of Jon Andrewes when The Supreme Court overturned a Court of Appeal decision that he should not receive a confiscation order.
The case surrounds a CV fraud, where in 2004, Andrewes applied for the role of chief executive of a hospice in Taunton. Alongside declaring he held a slew of relevant qualifications, he also claimed to have attained a PhD and a background of related work experience. The hospice subsequently offered Andrewes the role, which he performed successfully until 2015 when the truth began to emerge.
Remarkably, during his employment, his work was described in regular appraisals as either ‘strong’ or ‘outstanding’. When Andrewes left the hospice, he then employed similar tactics to be appointed to roles as director and chair of Torbay NHS Care Trust and chair of the Royal Cornwall NHS Hospital Trust.
In 2017, after a lengthy investigation, Andrewes pleaded guilty to one count of obtaining a pecuniary advantage by deception and two counts of fraud, whereupon he received a custodial sentence of two years. But what of the performance of duties which did not amount to a criminal offence? This case has important implications for confiscation orders, particularly payments ordered against someone who otherwise performed their job to an acceptable level.
The Supreme Court re-emphasised the significance of maintaining a proportionate response regarding the confiscation of the proceeds of crime, deciding it would be disproportionate to confiscate Andrewes full earnings procured during the course of the fraud. But that it would not be disproportionate to expect him to pay something back. Instead, the court found it was equitable to confiscate the difference between the lower level of earnings Andrewes would have received had he not lied and the higher earnings he actually received because of his false representations. This ‘middle way’ was a proportionate compromise between making a confiscation order requiring Andrewes to pay back every penny of his earnings and the alternative of making no order at all.
The Court determined Andrewes had provided his employers with services of economic value, and the fraud had not rendered those services inconsequential. However, it could not be forgotten that although Andrewes had done a good job, his employers believed they had hired someone with honesty and integrity. And save for Andrewes fraud, they would have chosen an alternative candidate.
Distinguishing between this case and those cases where the performance of services is unlawful (for example, where an individual is appointed to a role as an airline pilot or surgeon having lied about their licences or qualifications), the performance of services would likely constitute a criminal offence. In such circumstances, therefore, confiscating an individual's full earnings would not be considered disproportionate because carrying out those services has no real value that the law should recognise as valid.
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