The Supreme Court has held in the case of R v Andrewes that people who lie on their CVs can be stripped of the earnings they gained through the fraud, albeit calculated only on the “profit” they received. That is, the difference between their earnings and what they would otherwise have obtained.
In this case, Mr Andrewes was appointed to the CEO role at St Margaret’s Hospice, Taunton in December 2004, having lied on his CV that he had university degrees, as well as significant work experience.
He then told staff in 2006 that he had obtained a PhD and should thereafter be referred to as Dr Jon Andrewes. This title was subsequently attributed to him in staff diagram structures and his email footers. Using the same or similar lies, he was appointed to two remunerated roles as a director and then chair of the Torbay NHS Care Trust and chair of the Royal Cornwall NHS Hospital Trust.
His employment was terminated in March 2015. Following his conviction in January 2017 for obtaining a pecuniary advantage by deception and two counts of fraud, a confiscation order under the Proceeds of Crime Act 2002 was made ordering him to pay £96,737.24 which was assessed to be the benefit that was recoverable for his crime. This was a proportion of the total earnings he had received from his employment and the two NHS appointments.
Mr Andrewes appealed to the Court of Appeal, which held that no confiscation order should be made. The Crown appealed against that decision.
The Supreme Court held that it would be disproportionate to make a confiscation order for his full net earnings over the relevant period (almost £650,000) because that would not take account into the value of the services he had in fact provided before the crime was discovered. To do so would amount to a penalty.
The court held that the proportionate approach was to confiscate the difference between the higher earnings obtained through fraud and the lower earnings he would have received, had he not lied on his CV. This would take away the “profit” made by the fraud and was a middle way between the take all or take nothing approach to confiscation in CV fraud cases.
The court made clear that this reasoning would not extend to cases where it would constitute a criminal offence to be appointed to a job, such as a surgeon, pilot or HGV driver because they had lied about the qualifications or licence in order to be appointed. In those circumstances, it would be appropriate to confiscate the full net earnings.
Thompsons will provide a fuller summary of this case in a future LELR.