As long ago as 2012, the Supreme Court in the case of R v Waya [2012] UKSC 51 (para 34) addressed the question of proportionality in confiscation proceedings. The Supreme Court identified that it would one day be necessary to decide whether it was proportionate to confiscate wages earned by offenders who had obtained employment by deception, but where they had properly performed their jobs thereafter. The Court of Appeal now appears to have definitively answered this question with its judgement in R v Andrewes [2020] EWCA Crim 1055. 

Mr Andrewes obtained in 2004 a position as a Chief Executive Officer at St Margaret’s Hospice in Taunton. He got that role at least in part by lying about his qualifications, falsely claiming to hold degrees from the Universities of Bristol and Edinburgh, as well as other management qualifications. He also lied in part about his employment history. 

In 2006 Mr Andrewes went further, falsely claiming to have completed a PhD and requiring that he be referred to as ‘Dr Andrewes’ by colleagues. In 2007, he moved jobs to become a non-executive director at Torbay NHS trust, where he repeated his lies. In part on the back of those lies, he also became Chair of the Royal Cornwall NHS Hospital Trust in 2015. That same year though, his lies began to be uncovered and he was subsequently prosecuted for offences under the Theft and Fraud Act. Importantly though, it appears that during his time in both jobs, there was nothing untoward about Mr Andrewes work in itself. He had obtained work by deception, but he carried it out properly. 

Proceeds of Crime Act proceedings were commenced against Mr Andrewes following his guilty plea, and the Crown Court subsequently made a confiscation order based on the finding that the wages he received during his employment were a criminal benefit for the purposes of POCA, and this was appealed. 

The findings of the Court of Appeal in paragraphs 98-100 of their judgement in this case are unambiguous. Quashing the confiscation order made by the Crown Court in its entirety, they said: 

“…the proper outcome is, in our view, clear enough. The appellant made dishonest representations causative of his obtaining remunerative employment and appointments. He thereby benefited as a result of or in connection with his particular conduct. But throughout, as is to be taken, he properly performed his duties. Further, whilst he had obtained the positions dishonestly, they were positions which he was otherwise lawfully entitled to hold. There was, for example, no legal bar on his being employed or appointed as he was, and indeed no legal bar in principle on the hospice and Trusts waiving their requirements as to what they considered to be essential or desirable attributes. In all the circumstances, he is, in our judgment, to be taken as having given full value for his remuneration. He thereby is to be taken to have made full restoration. A confiscation order would accordingly be disproportionate to the aim of the 2002 Act: it would involve a double penalty.”

The law has now moved on from the ambiguity of R v Waya and moved on clearly. Where a defendant has obtained work by deception, but in all other respects the performance of that work is lawful, it is disproportionate to order confiscation of the wages they earned in that role.