R v Jon Andrewes

Hearing date: 24 th July 2020

Approved Judgment

Introduction

In the aftermath of the decision of the Supreme Court in Waya [2012] UKSC 51, [2013] 1 AC 1028, s.6 (5) of the Proceeds of Crime Act 2002 (“the 2002 Act”) was amended so as to add the words: “Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.” But what does the word “disproportionate” connote in this context? That question, and questions of causation, fall to be answered in this case in circumstances where the appellant obtained remunerative employment and appointments after having made dishonest statements as to his qualifications and experience. This is a case of a kind expressly left open by the Supreme Court in Waya for decision in an appeal in which such issues directly arise. Here such issues do directly arise.

In confiscation proceedings in the Crown Court, the Recorder on 26 July 2018 assessed benefit in the sum of £643,602.91: representing the amount of pay (net of Income Tax and National Insurance Contributions) received by the appellant in the years of his employment and appointments before his dishonesty was discovered and he was dismissed. The available amount was assessed in the sum of £96,737.24. The recoverable amount was thus assessed in the latter sum: and the Recorder decided that it would not be disproportionate to order the appellant to pay that sum. A term of one year's imprisonment in default of payment was set.

Leave to appeal was granted by the Full Court on a previous occasion. At the appeal hearing before us, the appellant was represented by Mrs Nadine Radford QC and Mr Richard Reynolds. The respondent was represented by Mr Martin Evans QC and Mr Cameron Brown QC. Of counsel, only Mr Brown had appeared in the proceedings below. We are grateful to counsel for their careful and skilfully presented submissions, both written and oral.

Background Facts

We will give a relatively short summary of the background facts.

In September 2004 the post of Chief Executive Officer at St Margaret's Hospice, Taunton (a registered charity) was advertised in the national press, following the retirement of the previous Chief Executive Officer. The appellant was one of those who applied for the post. A detailed application pack was provided to him and to other candidates. It was among other things made clear that, in addition to his other duties, the Chief Executive Officer would act as the Responsible Person in accordance with the National Care Standards Act 2001. The tasks and responsibilities attached to the post were fully set out.

Of the requirements described as “Essential” in the “Person Specification”, there was included the requirement, as being “necessary for effective performance in the job”, of a first degree. Also described as “Essential” were, among other things: “10 years management experience with 3 years in senior appointment. Wide experience.” Attributes listed as “Desirable” included holding an MBA and 5 years in senior appointment.

In his signed application form, dated 3 October 2004, the appellant expressly acknowledged that the appointment, if offered, would be subject to the information given on the form being correct.

In that form he claimed, under the heading of University Education, a joint honours degree from Bristol University in Social Policy and Politics (1976–1979) 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.

In addition, in giving details of his employment history he variously stated that he had been on secondment at the Home Office between 1979 and 1982; chief executive of the Barrand 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 actuality was very different. The appellant 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 subsequently had been employed 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 £54,631. 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 continuous and senior management experience in the charitable sector, as well as to his educational qualifications, were false or dishonestly inflated and were misleading.

Unfortunately, these falsehoods were not picked up at the time. The appellant 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 2015.

In 2006, the appellant falsely told staff that he had obtained a PhD from Plymouth University (he had not). He required that he be addressed as Dr Jon Andrewes, a title which in due course appeared in, for example, staff structure diagrams and his email footers.

In July 2007 the appellant applied for the role of non-executive director at Torbay NHS Care Trust, a remunerated position. His application form was certified by him to be complete and correct. It contained the like falsehoods as to his academic qualifications. But now he also added a DPhil qualification and styled himself “Dr.” His application also contained the like falsehoods as to his employment history. He was appointed – this being a public appointment – on 19 September 2007 for an initial four year term which thereafter was periodically renewed until termination on 30 September 2015. He was also appointed Chair from February 2012.

On 1 July 2015 the appellant was further appointed as Chair of the Royal Cornwall NHS Hospital Trust, a remunerated position. His application for that position had included corresponding (even if not identical) falsehoods as to his academic qualifications and his employment history. Five candidates had been interviewed; he was successful. Requirements of honesty and integrity were explicit requirements for the post. He subsequently resigned when he was challenged about his academic history.

In a witness statement dated 24 November 2016 Mr Michael Clark, Chair of the Trustees of St Margaret's Hospice at the time of the appellant's appointment, stressed 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 the appellant would not have been offered the role if it had been known that he was lying about his previous experience and education. The need for integrity and honesty was emphasised. Mr Clark did, however, 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 the appellant's ability to carry out his role as Chief Executive Officer. It seems, in fact, that the appellant throughout was regularly appraised as either strong or outstanding in annual reviews.

His employment, and his two appointments, came to an end in 2015 when the truth started to emerge. In fact, criminal proceedings were then also commenced against the appellant, and others, in respect of the procurement of certain contracts placed by the hospice. In the event, the appellant was acquitted on those matters and, as we see it, they are irrelevant to the present appeal.

The Crown Court Proceedings

The present proceedings were instituted in 2016. There were three counts on the indictment which were pursued. Count 1 (which related to the St Margaret's Hospice job application) was charged as obtaining a pecuniary advantage by deception, contrary to s.16 (1) of the Theft Act 1968: the pecuniary advantage being particularised as the opportunity to earn remuneration or greater remuneration in an office or employment, by deception. Counts 2 and 3 related to the application to the Torbay Care NHS Trust and Royal Cornwall NHS Hospital Trust. Those counts were charged as fraud (by false representation) under the Fraud Act 2006, which statute had in the meantime been introduced.

The appellant pleaded guilty to those three counts. (A further count of possessing an article for use in fraud was left to lie on the file.) He was sentenced in the Exeter Crown Court on 6 March 2017 by His Honour Judge Mercer QC. A very detailed (amended) Basis of Plea had been...