(ii) The Relationship Between the Forfeiture Principle and the Illegality Defence
The principle that criminals, or those claiming through criminals, are not able to obtain benefits arising from a crime, is closely related to the principle that a court will not enable a party to obtain restitution of benefits transferred pursuant to an illegal transaction.[1] Indeed, both of these principles are founded on the same general principle of ex turpi causa non oritur actio, namely that the courts will not assist criminals and similar wrongdoers.[2] Also both principles are principles of public policy rather than principles of justice.[3]
Nevertheless, the forfeiture principle and the illegality defence remain distinct, there being a number of important differences between them. For example, a transaction may be illegal without necessarily involving the commission of a crime. Also the illegality defence is only applicable once a benefit has been transferred, whereas the forfeiture principle applies before any benefit has been received. Most importantly, it is much easier to defend the strict application of the forfeiture principle because the criminal is clearly a wrongdoer, whereas the claimant who seeks to recover a benefit which has been obtained by the defendant under an illegal transaction may have been an innocent party or less tainted by the illegality than the defendant. The effect of these differences is that, whilst it is necessary to acknowledge the common policy behind the forfeiture principle and the principle denying restitution on the ground of illegality, the two principles should be kept separate because they apply in different circumstances.
