RESTITUTIONARY CLAIMS BROUGHT BY THE STATE
Benefits obtained by an offender as a result of committing a crime may be confiscated by the State by virtue of statutory powers, primarily under the Proceeds of Crime Act 2002.[1] This statutory confiscation scheme does not fall within the private law of restitution since the proceeds of crime are paid to the State and not the victim, so cannot be regarded as involving literal restitution, since nothing is being returned to anyone.[2] Since, however, the law of restitution is preferably defined as involving the law of gain-based responses,[3]
the confiscation regime properly falls within the law of restitution. For the fundamental feature of the statutory confiscation regime is that the defendant is required to give up benefits which can be regarded as having been obtained through the commission of a crime. Consequently, it is only to the extent that the defendant can be regarded as having benefited from the commission of crime that confiscation operates. It is for this reason that confiscation does not involve the imposition of a fine, since that involves the defendant being deprived of something which he or she had not obtained from the crime.[4] Confiscation is not, however, confined to the disgorgement of identifiable criminally-acquired assets,[5] but is concerned with the disgorgement of value.[6] If the defendant no longer has those assets he or she can still be deprived of other assets of equivalent value. So liability is dependent on receipt and not retention of a benefit.[7] Confiscation liability may, therefore, be analysed as either proprietary or personal.
The statutory confiscation regime falls within the law of restitution for wrongs. Where the defendant has been convicted of a crime, the State can ensure that the defendant is deprived of any benefit arising from the commission of that crime and this is motivated by the same principle which underpins the private law of restitution for wrongs, namely that no wrongdoer should be allowed to benefit from the commission of a wrong.[8] As regards the confiscation regime, the offender can be considered to have committed a wrong against the State by breaching the duty to abide by the criminal law of the land. Since detailed analysis of these provisions concerning disgorgement to the State is adequately dealt with in specialized works on the subject,[9] it will be sufficient here simply to identify the key provisions relating to confiscation of the proceeds of crime.
- [1] See generally GJ Virgo, ‘Crime and Restitution Revisited’ [2009] RLR 29.
- [2] Although it has sometimes been suggested that the confiscation regime does involve the restoration ofthe
- [3] status quo existing before a crime was committed. See May [2008] UKHL28, [2008] 1 AC 1028 [7], referring tothe objective of the Hodson Committee (1984) which proposed the enactment of a statutory confiscationregime. 7 See p 3, above.
- [4] May [2008] UKHL28, [2008] 1 AC 1028, [48(1)]; CPSvJennings [2008] UKHL29, [2008] 1 AC 1046, [13].
- [5] Cf civil recovery orders, p 542, below.
- [6] In Waya [2012] UKSC51, [2013] 1 AC294, [2], Lord Walker and Hughes LJ, described ‘confiscation’ asamisnomer.
- [7] Currey (1994) 16 Cr App R (S) 421; Patel [1999] EWCA Crim 2268, [2000] 2 Cr App R (S)10.
- [8] See p 421, above.
- [9] See, in particular, AR Mitchell, SME Taylor, and KV Talbot, Mitchell, Taylor and Talbot on Confiscationand the Proceeds of Crime (3rd edn, London: Sweet and Maxwell).
