R v Andrewes (Respondent)

The judgment was given on the 18th of August, 2022, and the hearing and proceedings were conducted on the 22nd of June, 2022. 

Background 

In September 2004, St Margaret’s Hospice advertised for the Chief Executive Officer position.  The qualification required that the applicant should have a first degree. However, if they also have an MBA degree, it will be considered a plus point.  Furthermore, under the heading of experience, St Margaret Hospice mentioned that the applicant should have ten years of experience in management, in addition to three years in a senior position.  Which was considered a mandatory requirement of the candidate—however, five years of experience in senior appointment was desirable.

Mr Andrewes applied for the position in 2004, with an annual salary of £75,000. Still, it turns out that the qualification and experience he had claimed on his CV was false or exaggerated. Furthermore, working as a CEO at ST Margaret’s Hospice, he applied for additional roles in Torbay NHS and Chair of the Royal Cornwall NHS Hospital Trust as an indemnified officer, where he once again submitted false qualifications and experience.

Eventually, in March 2015, it was found that Mr Andrewes had lied on his CV.  Therefore, on 17th of January 2017, he pleaded guilty to one count under section 16 of the Theft  Act 1968 (as regards his position in St Margaret’s Hospice) while two counts under section 1 of the Fraud Act 2006 (as regards to his appointments at, the abovementioned NHS Trust). It is crucial to mention that Mr Andrewes was an employee of St Margaret’s Hospice. Therefore, he was charged under the Theft Act; on the other hand, he was only a remunerated officer in both NHS Trusts;  hence, he was charged under the Fraud Act.

As Mr Andrewes was found guilty of his offence, the HH Mercer QC prosecuted him for two years of imprisonment and issued a confiscation proceeding. 

Confiscation Proceedings 

Upon HH Mercer QC’s order, the confiscation proceedings were conducted in two stages, on the 8th  of June 2018 and the 26th of July 2018. The profited amount was £643,602.91, while the available amount for the confiscation order was £96,737.24. In response to the confiscation order, Mr Andrewes Counsel contended that he had not benefited from criminal conduct but instead received the remuneration for his work. As a result, remarks were passed by the judge (Recorder Meeks QC) where he stated, “Given that the recoverable amount is £96,737.24, I have determined that it would not be disproportionate to order (Mr Andrewes) to pay a confiscation order in that sum and accordingly I make such an order. It represents less than  15% of the benefit figure as I have found it to be…..” 

Court of Appeal Decision on Confiscation Order.

Mr Andrewes appealed against the decision in the Court of Appeal. Both parties were against the Crown’s Court decision. Therefore, the question of law was set out by Court of Appeal 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 of Human Rights”. The Defence Counsel stated that making a confiscation order under section 6(5) of the POCA would be disproportionate to the recoverable amount of £643,603.91. As it was lawful for him to carry out his services despite submitting false documents, he had given total value for his remuneration. Therefore, the confiscation value of the benefit amount, where a benefit has already been availed, will result in a double recovery effect. Thus, regarding the argument mentioned above by Mr Andrewes, the Court of Appeal upheld and proved that the confiscation order made by the Crown Court was disproportionate. 

Supreme Court Decision 

However, the decision was appealed to the Apex Court, which overruled the conclusion set out by the Court of Appeal and reinstated the confiscation order. 

Mr Andrewes Counsel presented his argument, differentiating the legal services in the eyes of the law and, on the other hand, those jobs with no legal requirement, e.g., a person is appointed to a job as a surgeon, airline pilot, or HGV driver. As these jobs require a license to perform, if they lie in their job application, it will constitute a criminal offence. It would be proportionate to confiscate the total net earnings because the services have no value that should be recognised. On the other hand, the job which requires no lawful market performance of those services by that person, confiscation of the entire net earnings, in that case, would be double disgorgement.

On the contrary, the prosecution argued that although they had benefited from the services provided by Mr Andrewes when he was an employee of St Margaret’s Hospice and a remunerated officer to both NHS Trust. However, in the advertisement, they mentioned the eligibility criteria of the applicant, and despite that, Mr Andrewes applied and signed the form confirming that the information was accurate. Secondly, if they knew that Mr. Andrewes did not fall under the eligibility criteria, they wouldn’t have selected him in the first place.

Hearing both of the Counsel’s arguments, the Apex Court came up with a middle-way approach where they decreased the recoverable amount to £244,568 and the available amount of  £96,737.24. The Judges stated that it would be proportionate to pass a confiscation order,  “as the fraudster would be profiting from his crimes if no confiscation order was made, and would set injustice in the society ( by passing a no confiscation precedent). 

They stated that it was appropriate to pass a confiscation order by confiscating the difference between the higher earnings made due to the CV fraud and the lower earnings that he would have made if they had not committed the CV fraud.

Article by: Burhanuddin Yousuf