In R v Andrewes, the Supreme Court held that profits made by an employee who committed CV fraud to gain a senior position should be confiscated. However, it went on to say that it would be disproportionate to make a confiscation order for the employee’s full net earnings during the relevant employment as this would not take account of the services he provided during that time.
The Crown Sought A Confiscation Order
Mr Andrewes applied for the position of CEO at St Margaret’s Hospice, claiming to have relevant qualifications, including university degrees, and experience considered essential to that role. In reality, the claims on his CV were false; he did not have these qualifications or experience and would not have been employed without them. He nevertheless performed well and remained in that role until March 2015 when his employment was terminated after the truth about his qualifications and experience started to emerge.
In 2017, Mr Andrewes was convicted of obtaining a pecuniary advantage by deception and two counts of fraud. He was sentenced to two years of imprisonment and following this conviction, the Crown sought a confiscation order under the Proceeds of Crime Act 2002 against him for the full amount of his net earnings during the relevant period. Mr Andrewes appealed, arguing that he had not benefited from his criminal conduct because he had earned the remuneration from the work he did and the Court of Appeal allowed that appeal.
Repayment of Wages
The Supreme Court restored the confiscation order on appeal. Nevertheless, it held that it would be disproportionate to make a confiscation order for Mr Andrewes’ full net earnings over the relevant period as there had been valuing in the services he performed for the hospice. However, he would not have obtained the position of CEO if he had been truthful about his qualifications. The proportionate approach was to calculate the difference between the lower-income job role, which was obtained without fraud, and the higher-income CEO position secured through fraud. The Supreme Court calculated a proportion confiscation order of approximately £245,000; however, a lower, recoverable amount of about £97,000 was made.
The Court made it clear that this reasoning would not extend to cases where it would be a criminal offence to be appointed to a job (for example, a surgeon operating without the required qualifications). Due to the circumstances, it was appropriate for the full net earnings to be confiscated.
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