(v) Restitution from Third Parties

Whilst the claimant might be able to establish a restitutionary claim to recover the proceeds of the crime from the criminal, it will be even more difficult to establish such a claim against anybody else who assisted the criminal in obtaining the proceeds without being party to the offence.^[1] For example, a ghost writer or publisher who assists in the writing and publication of the defendant’s story should not be liable to disgorge the benefits they obtained from the publication of the story.^[2] This is because any benefit which the ghost writer or the publisher obtained was surely too remote from the commission of the crime in the first place. The reach of restitution will be too wide if it embraces claims against both the criminal and anybody who assisted the criminal in obtaining an indirect benefit from the crime without themselves being guilty of a crime in their own right.

Where, however, the third party receives property from the criminal which is held on constructive trust for the victim, the victim will be able to bring a restitutionary claim to vindicate his or her proprietary rights.^[3] Where the third party receives property from the criminal in which the victim does not have a continuing proprietary interest, but the third party is aware that the property represents the proceeds of crime, the third party may be considered to have acted unconscionably so that he or she will hold the property on constructive trust for the victim.

• [1] The victim will have a restitutionary claim against an accessory who obtained a benefit as a result of assistingor encouraging the commission of a crime, because the accessory is guilty of a crime in his or her own right.
• [2] Invariably those States in the United States which have statutes prohibiting the criminal from profitingfrom the commission of the crime do not prohibit the publisher, ghost writer, or producer from retainingprofits derived from the criminal’s story: Okuda, ‘Criminal Antiprofit Laws’.
• [3] See Chapter 22. This will be subject to the defence of bona fide purchase: see Chapter 23. The third partycould also be liable for knowingly receiving the proceeds of crime which are subject to a constructive trust (seep 645, below) or dishonestly assisting the criminal in breaching the trust (see p 521, above).