Andrewes, R. v

Under Proceeds of Crime Act 2002, a confiscation order is disproportionate only where it is disproportionate to the statutory aim of depriving a criminal of the proceeds of crime. The inquiry does not confer a residual discretion, require a general balancing exercise, or depend on the ratio between benefit and available assets.

Remuneration obtained through continuing dishonest representations may be benefit from particular criminal conduct. However, where a person was otherwise lawfully entitled to hold the post and gave full value by properly performing the work, that value may amount to full restoration. A confiscation order would then be a disproportionate double penalty.

The appellant pleaded guilty to obtaining a pecuniary advantage by deception and to two frauds. He had secured a chief executive post at a hospice and remunerated NHS appointments by falsely claiming qualifications and senior experience.

At Exeter Crown Court, the Recorder assessed benefit from the appellant’s net remuneration at £643,602.91 and made a confiscation order for the agreed available amount of £96,737.24. The appellant had performed his duties competently, but his employers would not have appointed him had they known the truth.

The appeal concerned whether the remuneration was benefit obtained as a result of or in connection with the offending and, if so, whether a confiscation order was disproportionate under Proceeds of Crime Act 2002.

1. The appeal was allowed. The court quashed the confiscation order. Although the Recorder correctly assessed benefit and the available amount, an order for the recoverable amount was disproportionate under section 6(5) of the Proceeds of Crime Act 2002.
2. The appellant’s remuneration was benefit obtained as a result of or in connection with his criminal conduct. His dishonest statements caused the appointments: but for them he would not have obtained the posts or their remuneration. The representations continued throughout the employment and appointments. The breadth of section 76 was consistent with that conclusion.
3. The proportionality question is whether making the confiscation order would be disproportionate to the statutory aim of removing the proceeds of crime. Following Waya [2012] UKSC 51, it is not a residual discretion, a general merits balance, or an assessment based on the proportion of benefit represented by available assets. A confiscation order is restorative rather than punitive. It becomes disproportionate where it exacts a second recovery or a further financial penalty without removing criminal proceeds.
4. Full restoration need not always consist of repaying the same money received. Where services were lawfully performed and gave the payer full value, their performance may be analogous to restoration, as illustrated by Sale [2013] EWCA Crim 1306. The court should ordinarily be satisfied that claimed restoration was lawful, while leaving exceptional cases to their facts.
5. Here the appellant was otherwise lawfully entitled to hold the posts and had properly performed his duties. He therefore gave full value for his remuneration and was to be treated as having made full restoration. Confiscation would be a double penalty, rather than an order advancing the statutory purpose.

• Court of Appeal (Criminal Division) In [2020] EWCA Crim 1055, allowed the appeal and quashed the confiscation order.
• Exeter Crown Court On 26 July 2018, the Recorder assessed benefit at £643,602.91, the available amount at £96,737.24, and made a confiscation order for that available amount.