In the aftermath of the decision of the Supreme Court in Waya [2012] UKSC 51 , [2013] 1AC 1028, s.6 (5) of the Proceeds of Crime Act 2002 (“the 2002 Act) was amended so as to add the words: “Paragraph (b) applies only if, or to the extent that, it would not be disproportionate to require the defendant to pay the recoverable amount.”
But what does the word “disproportionate” connote in this context? That question, and questions of causation, fall to be answered in this case in circumstances where the appellant obtained remunerative employment and appointments after having made dishonest statements as to his qualifications and experience. This is a case of a kind expressly left open by the Supreme Court in Waya for decision in an appeal in which such issues directly arise. Here such issues do directly arise.
Causation
“The arguments of the appellant on this aspect of the appeal are to be rejected. They fail at every level.
It may of course be that in some employment cases, depending on the facts, the false representations, depending on their nature, can be adjudged never to have had or to have ceased to have had operative effect, or to have been implicitly waived. But even if that can be so, this most certainly is not such a case.
We do not propose to say more on this aspect of the appeal. The remuneration derived from the employment and appointments was correctly adjudged by the Recorder in his first ruling to be benefit obtained as a result of or in connection with the conduct.”
Proportionality
“Turning to the facts of the present case, 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.”
