The defendant obtained employment as the Chief Executive Officer of a Hospice in 2004.  Between 2007 and 2015 he was also successful in being placed on NHS Boards.  The issue arising was that the defendant had obtained these positions through false statements in relation to his experience and qualifications. He had given details of degrees which were not accurate, as well as job titles and employers which were not true either. As a result of the work on the NHS Boards criminal proceedings were brought against the defendant, namely a charge of obtaining a pecuniary advantage by deception, to which the defendant pled guilty. 

The issue arising in this part of the case was a confiscation order sought by the Crown. At first instance, the confiscation was allowed. It was found that the defendant had made a benefit of £643,602.91; that being the net earnings in relation to the jobs he had obtained through his deception. However, the order made was for £96,737.24 in relation to the available and recoverable amount from the defendant. The defendant appealed this decision to the Court of Appeal where it was found that the confiscation order made was disproportionate.  The reasoning of the Court of Appeal was that he had performed the services through his employment and it was lawful for him to carry out the activities.  

The Crown appealed to the Supreme Court. The Supreme Court outlined that it was for the prosecution to prove that it was not disproportionate to require the offender to pay the amount back. When it came to confiscating the full net earnings of the defendant, the Supreme Court made a distinction between those carrying out the job lawfully, compared to where it would be illegal. For example, a surgeon lying about their qualifications would be committing a criminal offence by that very fact and therefore it would not be disproportionate to confiscate the full earnings. However, where the performance was lawful then it may be regarded as disproportionate as it would be a penalty when the work had been carried out. The Supreme Court, however, rejected the defendant’s argument that there should be no confiscation order. He had profited from his crime, and the court could not allow that to be the case. 

The Supreme Court found that it was proportionate to find a ‘middle way’. This was the difference between the higher earnings that were obtained by the defendant compared to the lower earnings that he would have likely obtained had he been truthful about his experience and qualifications in seeking employment. The Supreme Court stated that no accounting exercise was needed and that in most cases of ‘CV fraud’ it would be appropriate to take the starting salary from the new job obtained through the deception and comparing it to the defendant’s salary from their previous job. On that basis, it was found that the difference in earnings obtained by the defendant was greater than the £96,737.24 available and so that should be the amount of the confiscation order.  

Practical Lessons

It is rare to be covering a criminal case when it comes to employment matters. Ordinarily, such matters are dealt with through the Industrial Tribunal.  However, this case demonstrates the potential effect of being deceptive and dishonest when it comes to job applications and CVs. Where such deception is egregious and there is a profit made as a result of obtaining the job on that basis then it should be noted that it does constitute a criminal offence and the Supreme Court has made it clear that a confiscation order can be allowed depending on the ‘profit’ that has been made by the offender. It is hopeful that this will work as a deterrent for any budding job applicant thinking about lying on their application or their CV. 
https://www.supremecourt.uk/cases/docs/uksc-2020-0166-judgment.pdf