An eye catching case recently came before the Court of Appeal. The main facts are interesting enough on their own, but those involved in confiscation cases will find it especially noteworthy.
In the wake of a Supreme Court case called Waya, changes were made to the Proceeds of Crime Act. A key amendment was made to s.6(5) meaning that where applicable, a court had to make a Confiscation Order only if it was not disproportionate to do so. What was less clear was when it would be disproportionate.
Enter R v Andrewes. Mr Andrewes had been made Chief Executive of a hospice, on a salary of £75,000. Shortly after, he had been appointed Chair of a local NHS hospital trust- also a paid position. When applying, he had claimed to hold a number of high level qualifications and to have an extensive, employment history. He had lied on his CV, to a substantial degree.
Mr Andrewes left both positions in 2015 when the truth became known, and was prosecuted the following year. He entered guilty pleas to three offences:-
- Obtaining a pecuniary advantage by deception, (i.e. the job at the hospice had allowed him to earn/bolster his salary by way of his deception);
- and (iii) were counts of Fraud by False Representation (relating to two hospital trust applications).
Stating that Mr Andrewes’ life had for 10 years been ‘a series of staggering lies,’ the Judge sentenced him to two years’ imprisonment. Confiscation proceedings were then brought on the basis that Mr Andrewes had benefited from ‘particular criminal conduct.’ (For more on what this means, the blog post here has more information.)
What was said in the appeal?
Mr Andrewes’ main argument was that in accordance with s.6(5) of POCA, the making of a Confiscation Order was disproportionate, because he had given ‘full value’ for his appointments- even if he had lied to gain them. It would be double punishment, because he had already served a prison sentence as a consequence of his lies.
In its decision, the Court emphasised that a Confiscation Order is not meant to act as a further punishment, though it somewhat wryly observed that defendants may not agree with them.
It went on to say that in these cases, ‘careful consideration’ must be given before confiscation proceedings are brought. It stated that:-
- Although Mr Andrewes obtained his roles dishonestly, he was otherwise legally entitled to hold them;
- Agreeing with his main argument, he had given ‘full value’ on exchange for the monies he had received, and so he was taken to have ‘made full restoration’
- A Confiscation Order would be disproportionate. The Order already made (in July 2018) was quashed.
What does this mean for the future?
In cases of so-called ‘CV fraud,’ defendants would have received advice that confiscation proceedings were a given. That no longer seems feasible. Mr Andrewes was able to persuade the Court of Appeal that he had done such a good job that he had been worth the money (indeed, the court in his main case had heard evidence from a witness to this effect).
There is a possibility that the case could end up in the Supreme Court but for now, we at least have one example of when it would be disproportionate for a Confiscation Order to be made.
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