Nadine Radford QC and Richard Reynolds successfully argue a hospice CEO and NHS chairman can keep his salary despite having lied to get the job. The case was deemed by the Court of Appeal as a decision raising a point of "general public importance". It is understood the Crown will be seeking leave to appeal to the Supreme Court. On any view it is a significant judgment for POCA practitioners and those who may find otherwise lawful endeavours procured by criminality.
Gordon Ross and Richard Reynolds previous represented the same defendant successfully in Bristol Crown Court last year (see link here) where he was acquitted, alongside some of the other senior managers of Saint Margaret's Hospice, of a complex fraud alleging misappropriation of hundreds of thousands of pounds of Department of Health grants. The investigation into this uncovered that Mr Andrewes had given false details of his qualifications on his application for the role of CEO and various other senior roles in the NHS in the South West. Charges relating to the CV were brought some years before the main prosecution, and Mr Andrewes pleaded guilty to those matters. Proceeds of Crime Act 2002 proceedings followed in which Mr Andrewes criminal benefit was assessed as his entire income received from his roles. He was ordered to repay all he could of these monies. No member of 3TG appeared in this case, until the appeal.
Leave having been refused by the Single Judge on the written advice of counsel instructed in the CV matter, Mr Reynolds made the application for leave before the Full Court. He was successful in that application, and an application that the case justified the instruction of a silk.
Ms Radford QC and Mr Reynolds acted in the full hearing, where they succeeded in persuading the court that "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, […] 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."
This represents a rare victory for a defendant in POCA proceedings which are generally thought to be a draconian regime, albeit one which has been held, in principle to be consistent with the European Convention on Human Rights.
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