Fake NHS boss to pay £96,000 confiscation order after lying about qualifications, Supreme Court rules

The Supreme Court has unanimously ruled that a man, 63, from Totnes will have to pay £96,000 after lying about his qualifications to secure top jobs within the NHS, overturning his successful appeal against the order at the Court of Appeal.

The man, John Andrewes, falsely claimed himself to be a Doctor, despite not having a PHD, and said he had degrees from three universities.

He secured himself roles at a hospice and two South West health trusts where he earned over £643,000.

In 2017, he admitted in Exeter Crown Court to obtaining money by deception when he got a job at St Margaret's Hospice in Somerset where he was chief executive from 2004.

The court heard that for over a decade he led an "outwardly prestigious life based on a staggering series of lies".

He also pleaded guilty to two counts of fraud relating to his appointments as chairman of the Torbay Care Trust and of the Royal Cornwall Hospitals Trust (RCHT) and was jailed for two years. 

Following his conviction, the Crown sought a confiscation order against him. Mr Andrewes’ full net earnings during the relevant period were £643,602.91 and given a confiscation order of £96,737.24 under under section 6(5) of the Proceeds of Crime Act (POCA).

Mr Andewes successfully appealed this at the Court of Appeal, arguing that the confiscation order was disproportionate.

The Director of Public Prosecutions appealed this decison to the Supreme Court to consider whether the imposition of a confiscation order following a conviction for fraud of this type was proportionate. Yesterday (18th August), the Supreme Court unanimously allowed the appeal. Lord Hodge and Lord Burrows give the judgment, with which Lord Kitchin, Lord Hamblen and Lord Stephens agreed.

The Supreme Court found that while it would be disproportionate to make a confiscation order of the full net earnings in this case (i.e. of £643,602.91). Without making any deduction for the value of the services rendered would amount to “double confiscation” and a penalty. However, the Supreme Court said that when considering proportionality, the court should seek to confiscate the difference between the higher earnings obtained through fraud and the lower earnings that would have been obtained if there had been no fraud.

Mr Andrewes would therefore have to give up any “profit” he made through his lies, but account would be taken of the fact that his employers did receive value in the form of services rendered, in exchange for paying his salary. This, the Supreme Court said, is to adopt a principled “middle way” in contrast to either a “take all” approach (as advocated by the Crown) or a “take nothing” approach (as adopted by the Court of Appeal).

Applying this approach to the facts, the Supreme Court said that a confiscation order of £244,568 would be proportionate (assuming that it did not exceed the recoverable amount). In Mr Andrewes case', as the recoverable amount is only £96,737.24, the Supreme Court held that a confiscation order in the amount of £96,737.24 to be proportionate.

The Supreme Court stressed that this reasoning does not extend to cases where (unlike in this case) the actual rendering of services was illegal, for example, if a surgeon performed operations without the required qualifications. In such a scenario, it would not be disproportionate to confiscate the full net earnings.

Lottie Winson

They "certified the question of whether or not a confiscation order in such circumstances would be disproportionate as a point of law of general public importance", a Supreme Court spokesman said.

He was also appointed to two remunerated roles as a director and then Chair of the Torbay NHS Care Trust and as Chair of the Royal Cornwall NHS Hospital Trust. In January 2017 Mr Andrewes pleaded guilty to one count of obtaining a pecuniary advantage by deception and two counts of fraud. He was sentenced to two years’ imprisonment. Following his conviction, the Crown sought a confiscation order against him. Mr Andrewes’ full net earnings during the relevant period were £643,602.91. The “available amount” (which, somewhat simplified, is the amount which the criminal has free to pay a confiscation order) and hence the “recoverable amount” was agreed to be £96,737.24, and the judge ordered confiscation of that sum. Mr Andrewes appealed. The Court of Appeal allowed Mr Andrewes’ appeal, making no confiscation order, and certified the question of whether or not a confiscation order in such circumstances would be disproportionate as a point of law of general public importance. The Crown appealed to the Supreme Court.