R v Andrewes
| Jurisdiction | England & Wales |
| Judge | Lord Hodge,Lord Burrows,Lord Kitchin,Lord Hamblen,Lord Stephens |
| Judgment Date | 18 August 2022 |
| Neutral Citation | [2022] UKSC 24 |
| Court | Supreme Court |
| Year | 2022 |
[2022] UKSC 24
Lord Hodge, Deputy President
Lord Kitchin
Lord Hamblen
Lord Burrows
Lord Stephens
Appellant
Martin Evans QC
Cameron Brown QC
(Instructed by CPS Appeals and Review Unit)
Respondent
Jonathan Ashley-Norman QC
Richard Reynolds
(Instructed by Harris Cuffaro & Nichols)
Heard on 22 June 2022
Lord Hodge AND Lord Burrows ( with whom Lord Kitchin, Lord Hamblen and Lord Stephens agree):
This appeal raises an important issue on the confiscation regime laid down by the Proceeds of Crime Act 2002 (“ POCA”). It concerns what is often referred to as “cv fraud” (“cv” being shorthand for “curriculum vitae”). Typically, as in this case, this occurs where a fraudster includes lies on his or her application form for a job (for example, by including qualifications or experience which he or she does not have) and, as a result, is appointed to the job. The fraudster performs the agreed services satisfactorily and is paid the agreed salary until the fraud is discovered. On a conviction for fraud, should there be a confiscation order stripping the fraudster of his or her earnings (net of tax and national insurance)? In particular, would such a confiscation order be disproportionate under the proviso in section 6(5) of POCA?
The point of law certified by the Court of Appeal, which it is for this court to answer, is 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 on Human Rights?”
In September 2004 the post of Chief Executive Officer at St Margaret's Hospice, Taunton (a registered charity) was advertised. It was specified in the application pack that, as regards qualifications, a first degree was “essential” and an MBA “desirable”. In terms of experience, ten years of management experience, with three years in a senior position, were specified as “essential” and five years in a senior appointment as “desirable”.
In his application form, dated 3 October 2004, Jon Andrewes claimed to have obtained a first degree from Bristol University in Social Policy and Politics (1976–1978) and an MPhil in Poverty and Social Justice from the same university. He claimed to have an MBA from Edinburgh University in Management Science (1982–1984) and to be in the course of studying for a PhD in Ethics and Management at Plymouth University (from 2003). Under the heading of Professional Qualifications, he claimed to have an Advanced Diploma in Management Accounting (CIMA). None of this was true.
As regards his employment history he stated that he had been on secondment at the Home Office between 1979 and 1982; chief executive of the Barand Partnership between 1985 and 1993; Managing Director of the Sydenham Charitable Trust between 1993 and 1998; Chief Executive of the Groundwork Devon and Cornwall charity between 1998 and 2002 and Chief Executive of Groundwork South West from 2002. The truth was very different. He had not been seconded to the Home Office. He had worked as a social worker between 1975 and 1984. Between 1990 and 1995 he had been employed by Somerset County Council and then by Plymouth Council. Between 1999 and 2000 he had been employed at Plymouth Groundwork Trust for one year, with no record of him being designated Chief Executive. He was then employed between 2003 and 2004 by Groundwork Plymouth (at a salary of £54,361). Although having claimed to be Chief Executive of the Groundwork Charity between 1998 and 2004, he was not registered with the Charity Commissioners until 2004. There was no record of him having worked at the Sydenham Charitable Trust. Overall, therefore, his representations as to the essential requirements of management experience were either false or inflated.
By signing his application form, Mr Andrewes confirmed that the information contained in it was correct. Mr Andrewes was one of two candidates to be interviewed. He was offered, and accepted, the post of Chief Executive Officer of the St Margaret's Hospice in December 2004 at an initial annual salary of £75,000. He remained in that post until March 2015 when his employment was terminated.
In 2006, he told staff that he had obtained the PhD from Plymouth University that he had been working towards. This was untrue. He insisted that he should thereafter be referred to as Dr Jon Andrewes, a title which in due course appeared in, for example, staff structure diagrams and his email footers.
In a witness statement dated 24 November 2016 Mr Michael Clark, Chair of the Trustees of St Margaret's Hospice at the time of Mr Andrewes' appointment, explained that significant relevant previous experience had been viewed as essential: had candidates not had such experience, the post would have been re-advertised. He confirmed that Mr Andrewes would not have been offered the role if it had been known that he was lying about his previous education and experience. The need for integrity and honesty had been emphasised. However, Mr Clark did make clear that, at all events until Mr Clark himself retired in November 2008, the hospice had made significant progress and that he had never entertained any doubts about Mr Andrewes' ability to carry out his role as Chief Executive Officer. In annual reviews, Mr Andrewes was regularly appraised as either strong or outstanding.
In July 2007 Mr Andrewes applied for the additional role of non-executive director (a remunerated office) at Torbay NHS Care Trust. His application form was certified by him to be complete and correct. It contained the same false academic qualifications as he had used in relation to the application to St Margaret's Hospice. But now he added a PhD qualification and styled himself “Dr.” His application also contained the same falsehoods as to his employment history. He was appointed on 19 September 2007 for an initial term of four years which was subsequently extended and, from February 2012, he was appointed Chair. When reappointed in March 2015, he was told that his continued appointment was conditional on his being a “fit and proper person” and in an email in the previous month he had given his assurance that he complied with the fit and proper person criteria.
On 1 July 2015 Mr Andrewes was additionally appointed as Chair of the Royal Cornwall NHS Hospital Trust, which was another remunerated office. His application for that position had included corresponding (albeit not identical) lies as to his academic qualifications and employment history. Five candidates had been interviewed. Requirements of honesty and integrity were explicit requirements for the post. As part of the “fit and proper person” self-declaration, he confirmed that he had the necessary qualifications, competence, skills and experience and there were no other grounds under which he would be ineligible for appointment. A review of Mr Andrewes' work in this role, conducted approximately a month before the termination of his appointment, gave a glowing account of his skills in all areas.
Mr Andrewes' employment by St Margaret's Hospice, and his two appointments at Torbay NHS Care Trust and the Royal Cornwall NHS Hospital Trust, came to an end in 2015 when the truth started to emerge.
It should be noted that the certified question, in para 2, refers to employment only. But while Mr Andrewes was an employee of the hospice, he was not an employee, but rather a remunerated office-holder, of the two trusts. Nothing of any significance turns on that distinction in this case.
In January 2017 Mr Andrewes pleaded guilty to one count of obtaining a pecuniary advantage by deception under section 16 of the Theft Act 1968 (as regards his position at St Margaret's Hospice) and two counts of fraud under section 1 of the Fraud Act 2006 (as regards his appointments at, respectively, the Torbay NHS Care Trust and the Royal Cornwall NHS Hospital Trust). The explanation for why the first count was based on the Theft Act 1968, whereas the second and third counts were based on the Fraud Act 2006, is that the Fraud Act 2006 came into effect, and repealed section 16 of the Theft Act 1968, after the appointment in 2004 of Mr Andrewes to St Margaret's Hospice.
Mr Andrewes was sentenced at Exeter Crown Court on 6 March 2017 by His Honour Judge Mercer QC. Mr Andrewes was 63 years old at the time and had no previous convictions. The judge remarked that for a period of over 10 years his “outwardly prestigious life” had been based on “a series of staggering lies”. The judge said that it was by reason of those lies that Mr Andrewes had secured responsible positions, in which honesty and integrity were essential qualities: positions which he “at least probably, if not certainly, would not otherwise have obtained”. While HHJ Mercer QC was prepared to assume that Mr Andrewes had worked hard in all the dishonestly obtained posts and had achieved success, his appointments meant, “of course”, that he had received income which he should not have received and that his dishonesty had denied others the positions which he had obtained. The judge went on to stress that his performing of roles that he should not have been performing would inevitably have caused damage to the public's confidence in the organisations which he deceived.
Giving full credit for the guilty pleas, and having regard to other mitigation, the judge imposed a sentence of two years'...
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