R v Andrewes (Respondent) - [2022] UKSC 24

Trinity Term
[2022] UKSC 24
On appeal from: 2020 EWCA Crim 1055

JUDGMENT

R v Andrewes (Respondent)

before

Lord Hodge, Deputy President
Lord Kitchin
Lord Hamblen
Lord Burrows
Lord Stephens

JUDGMENT GIVEN ON
18 August 2022

Heard on 22 June 2022

Appellant
Martin Evans QC
Cameron Brown QC
(Instructed by CPS Appeals and Review Unit)

Respondent
Jonathan Ashley-Norman QC
Richard Reynolds
(Instructed by Harris Cuffaro & Nichols)

LORD HODGE AND LORD BURROWS (with whom Lord Kitchin, Lord Hamblen and Lord Stephens agree):

1.The question on this appeal

This appeal raises an important issue on the confiscation regime laid down by the Proceeds of Crime Act 2002 (“POCA”). It concerns what is often referred to as “cv fraud” (“cv” being shorthand for “curriculum vitae”). Typically, as in this case, this occurs where a fraudster includes lies on his or her application form for a job (for example, by including qualifications or experience which he or she does not have) and, as a result, is appointed to the job. The fraudster performs the agreed services satisfactorily and is paid the agreed salary until the fraud is discovered. On a conviction for fraud, should there be a confiscation order stripping the fraudster of his or her earnings (net of tax and national insurance)? In particular, would such a confiscation order be disproportionate under the proviso in section 6(5) of POCA?

The point of law certified by the Court of Appeal, which it is for this court to answer, is as follows:

“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?”

2.The factual background

In September 2004 the post of Chief Executive Officer at St Margaret's Hospice, Taunton (a registered charity) was advertised. It was specified in the application pack that, as regards qualifications, a first degree was “essential” and an MBA “desirable”. In terms of experience, ten years of management experience, with three years in a senior position, were specified as “essential” and five years in a senior appointment as “desirable”.

In his application form, dated 3 October 2004, Jon Andrewes claimed to have obtained a first degree from Bristol University in Social Policy and Politics (1976-1978) and an MPhil in Poverty and Social Justice from the same university. He claimed to have an MBA from Edinburgh University in Management Science (1982-1984) and to be in the course of studying for a PhD in Ethics and Management at Plymouth University (from 2003). Under the heading of Professional Qualifications, he claimed to have an Advanced Diploma in Management Accounting (CIMA). None of this was true.

As regards his employment history he stated that he had been on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Andrewes (Respondent)

Details

AGLC: R v Andrewes (Respondent) [2022] UKSC 24
Case: [2022] UKSC 24
Decision Date

CaseChat Overview and Summary

The case of R v Andrewes (Respondent) [2022] UKSC 24 involves an appeal against a confiscation order made under the Proceeds of Crime Act 2002 (POCA). The appellant, Mr Andrewes, was convicted of fraud and deception in obtaining employment and various senior positions in charitable and health trusts. The central legal issue was whether a confiscation order stripping the appellant of his earnings was disproportionate under section 6(5) of POCA. The Supreme Court had to decide on the correct approach to disproportionality in "cv fraud" cases, where the fraudster obtains employment by falsely representing their qualifications and experience.

The court rejected the Crown's argument that the full net earnings should be confiscated as it would amount to "double disgorgement" and constitute a penalty. The court also rejected the respondent's argument that no confiscation order should be made as it would be disproportionate. Instead, the court adopted a "middle way" approach. It held that it would be proportionate to confiscate the difference between the higher earnings obtained as a result of the fraud and the lower earnings the appellant would have made had he not committed the fraud. This approach reflects the profit made from the fraud. The court emphasised that this "middle way" requires some evidential basis for comparing earnings but does not require a detailed evidential or accounting exercise. The appropriate confiscation order in this case was the recoverable amount of £96,737.24, which the court would restore.

The final orders of the court were to allow the appeal and restore the confiscation order made by Recorder Meeke QC. No compensation order should be made as there was no clear evidence as to relevant loss. The decision provides guidance on how courts should approach disproportionality in cv fraud cases under POCA.

Orders