CV fraud: should someone who lied about their qualifications and experience in job applications, and was later convicted of fraud, be subject to a confiscation order stripping them of their fraudulent earnings?
‘CV fraud’ occurs where a job applicant includes lies on their curriculum vitae or job application form (eg by including qualifications or experience which they do not have) and, as a result, they are appointed to the job. Where an individual has lied on job applications in this way, this can amount to a fraud offence. The Supreme Court has recently considered whether, where the individual who has lied on their CV or application is later convicted for fraud, there should be a confiscation order stripping them of the earnings/remuneration earned as a result of, or in connection with, the fraud offence they committed.
A had lied about his qualifications and experience to secure three roles: (1) Chief Executive Officer of a hospice in 2004; (2) Non-executive director (a remunerated office) at Torbay NHS Care Trust in July 2007; and (3) Chair (a remunerated office) of the Royal Cornwall NHS Hospital Trust in 2015. A did not have the qualifications, nor experience, that he claimed when he had applied for these roles. A’s employment at the hospice, and his two NHS appointments, came to an end in 2015 when the truth started to emerge. A police investigation followed. In January 2017, A pleaded guilty to one count of obtaining a pecuniary advantage by deception under section 16 of the Theft Act 1968 (as regards his position at the hospice) and two counts of fraud under section 1 of the Fraud Act 2006 (as regards his NHS appointments). A, who had no prior convictions and was by then 63 years old, was sentenced to two years imprisonment.
The Crown sought a confiscation order against A, whose net earnings during the relevant period were £643,602.91. The judge ordered confiscation of the available amount, which was agreed to be £96,737.24. The Court of Appeal allowed A’s appeal and made no confiscation order, holding that to impose such would be disproportionate. The Crown appealed.
The Supreme Court allowed the Crown’s appeal and restored the confiscation order, albeit for different reasons. The Supreme Court held:
- As a starting point, it would be disproportionate to make a confiscation order of A’s full net earnings (ie of £643,602.91). To do so without making any deduction for the value of the services rendered by A over the years he held the relevant roles would amount to ‘double confiscation’ and a penalty. Importantly, this reasoning does not extend to cases where, different to the present case, the actual rendering of services was illegal. This would arise, 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.
- However, it is unacceptable for no confiscation order to be made. 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. A fraudster such as A should have to give up any ‘profit’ he made through his lies, but account should be taken of the fact that his employers did receive value in the form of services rendered, in exchange for paying his salary. The Supreme Court thus chose to adopt a principled ‘middle way’, in contrast to either a ‘take it all’ approach (advocated by the Crown) or a ‘take nothing’ approach (adopted by the Court of Appeal).
- Applying this principled middle way to the facts, a confiscation order of £244,568 would be proportionate (assuming this did not exceed the recoverable amount). But as, on the facts, the recoverable amount was only £96,737.24, the Supreme Court held that a confiscation order in the amount of £96,737.24 was proportionate. The Supreme Court therefore allowed the Crown’s appeal and restored, albeit for different reasoning, the confiscation order originally made.