R v Andrewes

In curriculum vitae fraud cases, confiscating all net earnings will normally be disproportionate where the offender lawfully performed the services and, viewed solely in that respect, gave full value. The proportionate order ordinarily confiscates the profit from the fraud: the difference between the higher net earnings obtained through fraud and the lower net earnings otherwise likely to have been received.

The court may estimate that difference broadly, commonly by comparing the initial salaries before and after the fraud. Full net earnings may be confiscated where performing the services was itself criminal, because the law recognises no valid value in those services. The prosecution must establish that requiring payment of the recoverable amount would not be disproportionate.

The respondent obtained a senior hospice position and two remunerated NHS offices after making extensive false representations about his qualifications and experience. He nevertheless performed the roles successfully. Following convictions under the Theft Act 1968 and the Fraud Act 2006, the Crown Court found that his net earnings of £643,602.91 constituted his benefit. It made a confiscation order for the available and recoverable amount of £96,737.24.

The Court of Appeal, in [2020] EWCA Crim 1055, held that confiscation was disproportionate because the respondent had provided full value through his services. It therefore set aside the order. On the Crown’s appeal, benefit and causation were conceded. The central issue was when confiscating remuneration obtained through curriculum vitae fraud is disproportionate under section 6(5) of the Proceeds of Crime Act 2002 or Article 1 of Protocol 1 to the European Convention on Human Rights.

1. The appeal was allowed and the confiscation order of £96,737.24 restored. Lord Hodge and Lord Burrows gave the judgment, with which Lord Kitchin, Lord Hamblen and Lord Stephens agreed.

2. The proportionality proviso in section 6(5) of the Proceeds of Crime Act 2002 embraces the protection afforded by Article 1 of Protocol 1. It does not establish a separate test. The relevant question is whether confiscating the recoverable amount is a proportionate means of stripping the offender of the fruits of crime. The proviso creates no general discretion to balance hardship or other wide-ranging considerations. The prosecution bears the legal burden of showing that payment of the recoverable amount would not be disproportionate: paras 38–39.

3. Where the offender has lawfully performed valuable services and, viewed solely through that performance, has given full value for the remuneration, confiscation of all net earnings would normally be disproportionate. Failure to deduct the value of those services would produce double disgorgement and therefore a penalty. The Crown’s “take all” approach was rejected: paras 41–42.

4. The Court of Appeal’s “take nothing” approach was also rejected. The offender would retain a profit obtained through fraud because the position would otherwise have gone to another candidate. The proportionate middle way is to confiscate the difference between the higher net earnings obtained through the fraud and the lower net earnings which the offender would otherwise have received: paras 44–47.

5. The comparison requires an evidential basis, but not a precise accounting exercise. Crown Courts should use a pragmatic, broad-brush assessment. Ordinarily, the percentage difference between the initial salary in the fraudulently obtained post and the salary in the prior employment will provide a suitable approximation. Temporary unemployment, part-time work or other transient circumstances are not necessarily the correct comparator: paras 48–51.

6. The proportionality inquiry concerns the recoverable amount. Where the estimated fraudulent profit plainly exceeds that amount, further calculation is unnecessary and the recoverable amount should be ordered. Here, the estimated profit was £244,569, substantially exceeding £96,737.24: paras 50–52.

7. The middle way generally does not apply where performing the services was itself criminal. Such services have no value which the law should recognise, so confiscation of the full net earnings may be proportionate. A mere legal bar to appointment does not produce that result where performance remains lawful: paras 42, 53–54. The position where remuneration is paid substantially upfront was left open: para 55.

8. The linked compensation order was not restored because its basis had not been explained and there was no clear evidence of relevant loss: para 58.

1. United Kingdom Supreme Court: In [2022] UKSC 24, unanimously allowed the Crown’s appeal and restored the confiscation order of £96,737.24. It did not restore the linked compensation order.

2. Court of Appeal (Criminal Division): In [2020] EWCA Crim 1055, reported at [2020] Lloyd’s Rep FC 557, allowed the respondent’s appeal. It held that confiscation was disproportionate because his lawful services had provided full value for his remuneration, and set aside the confiscation order.

3. Exeter Crown Court: Recorder Meeke QC found a benefit of £643,602.91 and made a confiscation order for the agreed recoverable amount of £96,737.24. He also made a linked compensation order.