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(B) CRIMINAL MEMOIRS

The statutory confiscation regime has been expanded by Part 7 of the Coroners and Justice Act 2009 to confiscate proceeds following a criminal conviction[1] which arises from the exploitation of material relating to a relevant offence, by means of so-called ‘exploitation proceeds orders’.[2] Such orders can be made where the defendant has derived a benefit from the exploitation of any material which pertains to a relevant offence or from steps taken or to be taken with a view to making such exploitation.[3] Exploitation can occur by any means, such as by publication of written or electronic materials, the production of visual images, words or sounds, or live entertainment, representation or interview.1 3 The defendant will be regarded as having derived a benefit if the benefit is secured for another person, such as a payment for an interview which is to be paid to the defendant’s child.124 In determining whether to make an exploitation proceeds order the court must have regard to a variety of factors, including the nature and purpose of the exploitation, whether the activity or product is in the public interest, its social, cultural or educational value, the seriousness of the relevant offence and the offensiveness of exploitation to the victim of the offence, the family of the victim, and the general public.125

The amount which can be recovered must not exceed the lesser of the total value of the benefits obtained and the available amount.126 When assessing the total value of the benefits, where the benefit is in kind, such as goods or services, the objective open market value is to be adopted less the value of any consideration provided for the benefit.127

This regime will clearly be relevant where a defendant writes memoirs about his or her criminal exploits, but it will extend beyond that to encompass potentially any criminal who profits from the exploitation of their crimes in whatever media, including film and journalism. This regime builds on the confiscation regime in the Proceeds of Crime Act 2002 by expanding the net of those profits which derive from the crime, to include indirect profits. It mirrors developments in the law relating to breach of fiduciary duty where expansive notions of causation and remoteness have been adopted.[4]

  • [1] Coroners and Justice Act 2009, s 156(2), or where the defendant is found to be not guilty by reason ofinsanity or to have committed the criminal act under a disability.
  • [2] Ibid, s 155. 5 Ibid, s 155(2). 123 Ibid, s 160(2). 124 Ibid, s 160(3).
  • [3] 125 Ibid, s 162(3). 126 Ibid, s 163(1). 127 Ibid, s 163(4).
  • [4] See p 504, above.
 
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