R v Andrewes: The Supreme Court’s Middle‑Way Approach to CV Fraud and Confiscation

Background

In September 2004, St Margaret’s Hospice advertised for a Chief Executive Officer. The role required a first degree and ten years of management experience, including three years in a senior position. Five years in a senior role was desirable. An MBA was considered advantageous.

Mr Andrewes applied for the role with a salary of £75,000. His CV contained false qualifications and exaggerated experience. While serving as CEO, he applied for further remunerated roles at Torbay NHS and the Royal Cornwall NHS Hospital Trust, again relying on false credentials.

In March 2015, authorities uncovered the fraud. On 17 January 2017, he pleaded guilty to one count under section 16 of the Theft Act 1968 for his employment at St Margaret’s Hospice, and two counts under section 1 of the Fraud Act 2006 for his NHS appointments. He was an employee of the Hospice, hence the charge under the Theft Act, and a remunerated officer at the NHS Trusts, hence the Fraud Act charges.

HH Mercer QC sentenced him to two years’ imprisonment and initiated confiscation proceedings.

Confiscation Proceedings

Confiscation hearings took place on 8 June 2018 and 26 July 2018. The benefit figure was assessed at £643,602.91. The available amount was £96,737.24.

Counsel for Mr Andrewes argued that he had not “benefited” from criminal conduct because he performed the work lawfully and competently. Recorder Meeks QC rejected this argument, stating:

The Court made a confiscation order for the available amount.

Court of Appeal Decision

Mr Andrewes appealed. The Court of Appeal framed the legal question as:

The defence argued that confiscation of the full benefit figure would be disproportionate because he had provided full value for his remuneration. Confiscation would amount to double recovery.

The Court of Appeal agreed. It held that the Crown Court’s order was disproportionate and should be quashed.

Supreme Court Decision

The case was appealed to the Supreme Court, which unanimously reinstated the confiscation order but modified the approach.

Arguments Presented

Defence argument: Jobs requiring legal certification, such as surgeons or airline pilots, justify full confiscation because the defendant cannot lawfully perform the work. In roles without legal licensing requirements, confiscating full earnings would be disproportionate because the defendant provided value.

Prosecution argument: St Margaret’s Hospice and the NHS Trusts set clear eligibility criteria. Had they known the truth, they would not have appointed him. He obtained his earnings through fraud, regardless of competence.

The Supreme Court’s Middle‑Way Approach

The Court rejected both extremes. It held that:

• Full confiscation of all earnings would be disproportionate.
• No confiscation would allow fraudsters to profit from crime.

The Court therefore adopted a hybrid model: confiscation should reflect the difference between the higher earnings obtained through fraud and the lower earnings he would have received had he applied truthfully.

The Court recalculated the recoverable amount at £244,568. The available amount remained £96,737.24.

The Court emphasised that failing to confiscate any benefit would “set injustice in society” by allowing fraudsters to retain profits from deception.