Andrewes, R. v (Rev1) [2022] UKSC 24 (18 August 2022)
Citation:Andrewes, R. v (Rev1) [2022] UKSC 24 (18 August 2022).
Subjects invoked: 86. 'Criminal 5 - Police Process'.
Rule of thumb:If you are found guilty of CV fraud or crime, how much of your money can Proceed of Crime Act take off you? All of it?! How much money can POCA take back If you carry out CV fraud to obtain a highly paid senior management position in an organisation, and you are eventually caught after a number of years, do you have to pay back all the money that you were paid in salary from the position to the Proceeds of Crime Authority (POCA)? 2 parts to this answer: (1) If you committed CV fraud to obtain a job that you needed a professional license for such as a surgeon, yes, you need to pay absolutely everything you were paid to POCA. (2) If, however, it was just a general management job you committed CV fraud to get, which no license was actually needed for, and you still did an okay job, you do not need to pay everything back, rather you only need to pay back everything you were paid from the job which was over the £35k-£40k mark. For example, if you committed CV fraud to get a £50k per year management job, and were caught after 2 years, you would only need to pay back 2 years’ worth £15k the extra pay to POCA, so 2 years x £15k extra = £30k in total to POCA.
Background facts:
This case invoked the subject of ‘Police Process’. It invoked the principle of ‘repayment of illegally obtained income’ in CV fraud cases to obtain a management job. It particularly considered whether in CV fraud to obtain management positions every penny earned had to be repaid by the CV fraudster under a ‘confiscation order’ to POCA, or whether it was just the money the CV fraudster earned from the position above the £35k-£40k mark.
The facts of this case were that Mr Andrewes obtained senior management positions on boards of NHS hospitals between 2005-2014. Andrewes obtained these positions by and large through lying on his CV and during interviews about senior management positions he had held in previous organisations on his CV. Andrewes did a good interview and his qualifications were not checked up on before he was appointed to the roles. Andrewes laterally also started to lie about having a PhD, which proved to be his undoing and largely led him to get caught. Andrewes nonetheless did a reasonable enough job in these management positions, and was fairly well liked and respected by people he worked with, and at various times in official audits assessing his work was rated as strong, excellent or outstanding in doing these positions over the course of these 9 years. However suspicions did begin to grow strongly about Andrewes’ qualifications after 9 years in 2014. This led to an investigation and it was discovered that Andrewes had indeed lied on his CV. He was eventually prosecuted and in 2017 and Andrewes pled guilty to CV fraud. It was calculated that Andrews had made around £650,000 in income from working in these management positions he had committed CV fraud to get – making an average salary of around £70k per year for the 9 years (9 x £70k = £630k) - before he was eventually caught. When Andrewes was caught he had around £95,000 left in the bank. The Proceeds of Crime Authority (POCA) Department of the Prosecution system came after Andrewes looking for him to repay them the full £650k he had made in these roles, including the £95k that he had left in his bank account. Andrewes disputed that he had to pay this. This matter came down to a dispute over how s6(5) of the Proceeds of Crime Act 2002 (POCA) applied.
Andrewes argued that even although he had indeed lied on his CV to get the management job, he was still entitled to a management salary of around £40,000 for doing it to a decent standard, which is what he would have been entitled to be paid for working these management roles if he had been up-front about his qualifications and still got the job. Andrewes argued that the principle of proportionality applied to ensure that he had only had to repay everything that he had earned above £360,000 (9 x £40k per year) – his base salary that his qualifications entitled him to for doing the management job. Andrewes argued that this proportionality principle therefore meant that his current savings were still under this £360k mark and he therefore did not have to pay any money under POCA. The Prosecution Service argued that the principle of illegality applied. They argued that Andrewes had committed fraud, all the contract he entered into were done so by fraud, and he was not entitled to keep any money obtained under these fraudulent contract. They argued Andrewes had to pay everything back, all £650k, and argued that if Andrewes did not have to pay then it would encourage others to commit CV fraud as well.
Judgment:
The Court held that Andrewes only had to pay £250,000 back, and not the full £650,000. They held that with the proportionality principle applied to s6(5) of POCA Andrewes was entitled to keep a remuneration for the management job which his actual more modest qualifications entitled him to – namely the £35k-£40k per year, but he had to pay back everything he made above that figure, namely the roughly £30k per year extra he made. The Court did emphasise that this only applied to Andrewes because he was working in a management position that he did not actually need a professional qualification & license to perform, and he actually did an okay job as it turned out. The Court affirmed that if Andrewes had committed CV fraud to obtain a position requiring a professional license, like a surgeon for example, which requires a medical degree and other specialist medical qualifications, then all £650,000 would have had to have been repaid. All in all, although Andrewes did have something of a moral victory as part of his argument had actually been upheld, Andrewes still nonetheless had to pay the £95,000 he had left in his bank because he did still owe POCA a bill of £250k for his additional earnings over £40k per year obtained through CV fraud. In short, Andrewes was all in all left with £0 in his bank account.
Ratio-decidendi:
‘Although we are not attempting to deal with all possible circumstances, the answer to the question certified (see para 2) is that in cv fraud cases, where, focusing solely on the performance of services, the fraudster has given full value for the earnings received — and putting to one side where the performance of the services constitutes a criminal offence — it will normally be disproportionate under the proviso in section 6(5) to confiscate all the net earnings made. But it will be proportionate to confiscate the difference between the higher earnings made as a result of the cv fraud and the lower earnings that the defendant would have made had he or she not committed the cv fraud. In many situations of cv fraud, it will be appropriate, as a pragmatic approximation of that profit, simply to base it on the percentage difference between the fraudster’s initial salary in the new job obtained by fraud and the fraudster’s salary in his or her prior job. Moreover, there is no need for much time and effort to be expended in assessing, even in a broad-brush way, the difference between the earnings with and without the cv fraud if it is clear that, in any event, that difference will exceed the recoverable amount’, Lord Hodge at 56
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.