Stripping a Criminal of the Profits of Crime

Abstract

A victim of a crime may claim that the criminal must make restitution of the benefit gained at his expense. The enrichment may arise directly from the criminal act. For example, a criminal demands money with menaces or obtains Property by fraud. No legal system will allow him to retain his enrichment gained at his victim's expense. More difficult problems arise if the criminal's enrichment is an indirect enrichment, for example, if he or members of his family used information relating to his criminal activities and published his story. The victim's common law claim may be defeated by such submissions as: the benefit was not gained at the plaintiff's expense or the criminal did not act wrongfully in using the information so acquired. There is also the forfeiture rule which insures, in England, that neither the legal nor beneficial title to property vests in the criminal; in contrast, in the United States, the criminal will be deemed to hold the property on constructive trust. These issues are discussed in Part I and Part II of the article respectively.

Part III of the article discusses briefly the English legislation which seeks to deprive criminals of the profits of their criminal activities. An important statute, the Criminal Justice Act 1988, is not well drafted. The existence of such statutes should not exclude the possibility of a common law restitutionary claim where no confiscation order has been, or can be, made. This point is examined further in Part IV of the article, which discusses the implications of the important decision of the English Court of Appeal in Attorney-General v. Blake in 1998, where the defendants conduct amounted, not only to a breach of contract, but to a serious criminal offense. Part V of the article asks whether there should be further legislative intervention and suggests that the American statutes provide only limited guidance for the English draftsman. The nature and scope of any future English legislation must now take into account the United Kingdom Human Rights Act 1998. Its possible impact is discussed in the final Part, VI, of the article.