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DENIAL OF BENEFITS ARISING FROM THE COMMISSION OF CRIMES

(A) DOES THE DENIAL OF BENEFITS TO A CRIMINAL FORM PART OF THE LAW OF RESTITUTION?

Where one consequence of an offender committing a crime is that he or she is entitled to receive a benefit, the general principle that no offender should profit from wrongdoing means that the benefit should be denied to him or her. But does the analysis of this application of the no-profit principle properly fall within a work on the law of restitution? Burrows suggests that it does not, simply because the law of restitution is concerned with the transfer of benefits to the claimant, whereas the question which is being considered here is whether the conduct of the offender is such as to prevent the benefit from being received by the criminal in the first place.[1] But this is an unnecessarily restrictive interpretation of the ambit of the law of restitution. Although the denial of benefits to a criminal is not restitutionary in the sense that it does not involve the application of gain-based remedies, it is appropriate to examine the rules relating to the denial of benefits to a criminal in a book on restitution.[2] [3] This is because both preventing the defendant from receiving the proceeds of the crime and transferring the proceeds of crime to the victim or to the State are motivated by the same policy consideration, namely that no criminal should be allowed to profit from the crime. The same question of public policy arises regardless of whether it is considered before or after the defendant has obtained the proceeds of the crime.

In Attorney-General v Blake140 the House of Lords recognized that the State has no specific power at common law to prevent a criminal from obtaining the proceeds of a crime; such a power can only exist by virtue of legislation.[4] Instead, a private law power was developed which had the effect of preventing Blake from profiting from his crime, by means of the remedy of an account of profits which lay only because Blake had committed a breach of contract. But where there is no contract to be breached, the common law recognizes another private law doctrine to prevent a criminal from profiting from his or her crime, in the form of the forfeiture principle.

  • [1] AS Burrows, The Law of Restitution (3rd edn, Oxford: Oxford University Press, 2011), 641.
  • [2] It is consistent with the expansive interpretation of restitution encompassing the giving up of rights: seep 6, above. Depriving the defendant of benefits from crime is included within the American Law Institute’sRestatement Third on Restitution and Unjust Enrichment (St Paul, MN: American Law Institute Publishing,2011).
  • [3] Attorney-General v Blake [2001] 1 AC 268. See p 473, above.
  • [4] Following the enactment of Part 7 of the Coroners and Justice Act 2009 an exploitation proceeds ordercould be made against a defendant such as Blake. See p 541, above.
 
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