Confiscation Orders: Finding a Middle Way Between Two Extremes
| Author | Christopher Kirkbride |
| DOI | http://doi.org/10.1177/00220183221138402 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
Confiscation Orders: Finding a
Middle Way Between Two Extremes
R v Andrewes [2022] UKSC 24
Keywords
Confiscation, all or nothing, proportionality, middle way
Facts
Jon Andrewes was a Chief Executive Officer of St Margaret’s Hospice from 2004 until 2015. In 2007,
he was appointed as non-executive director of Torbay NHS Care Trust, and then in 2015, Chair of the
Royal Cornwall NHS Hospital Trust. All the positions were remunerated. Andrewes claimed an
impressive education with undergraduate honours, MPhil, MBA, and by 2007, a doctorate. Allied
to the impressive set of qualifications was equally impressive work experience. It was all untrue.
Andrewes had told, ‘a series of staggering lies’([2020] EWCA Crim 1055, at [21])) in the course
of a sophisticated ‘CV fraud’. He was charged with obtaining a pecuniary advantage by deception
under section 16(1), Theft Act 1968 in relation to the St Margaret’s Hospice role, and two counts
of fraud by false representation under section 2, Fraud Act 2006, in relation to the Torbay NHS
role, and the Royal Cornwall role.
At trial, Andrewes entered a guilty plea for which he received two years’imprisonment. The confis-
cation hearings were in June and July 2018. It was determined that Andrewes did not have a criminal
lifestyle, so focus shifted to whether Andrewes benefited from the particular criminal conduct. He did,
so the court calculated the value of the benefit, and the sum which should be recovered from the defend-
ant. Here, in determining whether the defendant must pay the amount, the court considered whether it
would not be disproportionate. The proportionality ‘proviso’, as the Supreme Court termed it, was an
insert to the PoCA 2002 by sch 4, para 19, Serious Crime Act 2015, following the Supreme Court deci-
sion in R v Waya [2012] UKSC 51.
For the 11 years of his fraud, from 2004 to 2015, his net benefit assessed by reference to the particular
criminal conduct, was calculated to be £643,602.91. As it was employment income, albeit fraudulently
obtained, the sum was net of income tax and national insurance contributions. The final recoverable
amount, in fact the amount Andrewes had available, was calculated at £96,737.24. This was very slightly
over 15% of the total net benefit from the particular criminal conduct. This sum pleased neither prosecu-
tion nor defence. Andrewes appealed.
On appeal ([2020] EWCA Crim 1055), as might be unsurprising, the opposing arguments of the
Crown and Andrewes might neatly be summed up in the title of The Small Faces 1966 hit, All or
Nothing. The Crown argued for it ‘all’. Andrewes argued for ‘nothing’. The Court of Appeal allowed
the appeal, finding for Andrewes, preferring nothing. The confiscation order was disproportionate,
under a proper application of section 6(5), Proceeds of Crime Act (‘PoCA’) 2002. While Andrewes
had obtained the employments by dishonest representations, and benefited thereby, he had, by accounts,
performed his duties properly, ‘regularly appraised as either strong or outstanding in annual reviews’
(at [17]). Further, there was no legal bar on his appointments, nor any legal bar to any of the three employ-
ers waiving their essential or desirable requirements. That is, the roles were not subject to regulatory or
statutory thresholds. He had given full value for his earnings and, therefore, provided full restoration.
Case Note
The Journal of Criminal Law
2022, Vol. 86(6) 488–491
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183221138402
journals.sagepub.com/home/clj
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