» Appendix: Queensland Crimes (Confiscation of Profits) Act No. 60 (Endnote 1)
» Endnotes
I have been asked by the Lord Chancellor:
"To review, and to make recommendations on, the law governing the management of the estates of deceased persons in relation to assets whose value is affected by criminal activity associated with the deceased, in particular to examine:
the extent, if any, to which beneficiaries of estates should be permitted to profit from the sale of property, or other rights, the value of which has been affected by criminal activity by the deceased person or others associated with the deceased;
the extent, if any, to which executors and administrators should be allowed or required to take into account of the effect on the public of decisions taken in the administration;
the extent, if any, to which special considerations should apply in respect of particular classes of beneficiaries and others with claims against the estate, for example, associates of the deceased, and victims of crimes associated with the deceased;
whether any, and if so what, special considerations should apply where the Official Solicitor is appointed to administer the estate; and
the implications of any changes recommended for other branches of the law, in particular the law of trusts.
Any review must, of course, take into account existing and proposed legislation, as well as the present common law. I first turn to an analysis of existing legislation.
There are a number of statutory provisions which seek to deprive criminals of the profits of their criminal activity. They include: the Criminal Justice Act 1988 (Endnote 2) [CJA] (as amended); the Prevention of Terrorism (Temporary Provisions) Act 1989 (Endnote 3); the Proceeds of Crime Act 1995 (Endnote 4); and the Drug Trafficking Act 1994 (Endnote 5)
For example, under the CJA the courts are, in certain circumstances, under a duty to confiscate the proceeds of indictable offences (Endnote 6). A person benefits from an offence if he obtains property as "a result of, or in connection with", the commission of the crime; "and his benefit is the value of the property so obtained": s. 71(4). The court is also empowered to make certain assumptions to determine whether the defendant has benefited and the value of that benefit (Endnote 7).
The phrase "in connection with" lacks precision. For example, it is doubtful whether it catches advances made by publishers to criminals for the story of the crime (Endnote 8). Pat Pottle and Michael Randle were paid £30,000 for their book, The Blake Escape: How We Freed George Blake and Why. Having been indicted for offences relating to the escape, the Crown obtained a charging order over their homes. Their application to discharge it on the ground that it was not a benefit within s. 71(4) was unsuccessful. It was held that the £30,000 was property connected with the alleged offences. Potter and Randle were later acquitted, and, with their acquittal, the charging order was discharged. Arguably, the £30,000, paid to Potter and Randle was not property obtained "in connection with" the "commission" of the crime within s. 71(4) of CJA, but was made from their contract with their publisher (Endnote 9).
Many of the criminal activities, against which these statutes are directed, have victims who may not be identifiable. This class includes the clientele of drug dealers. Again, it is society who is the victim of those who assist a criminal to escape from prison, who deal in arms, or who evade taxes. In such situations a confiscation order is an appropriate remedy.
But the victim of a crime may be identifiable. He may institute civil proceedings against the criminal (Endnote 10). Again, the court has power to make, but is not obliged to make, a confiscation order (Endnote 11); and all courts have power to make a compensation order in respect of loss of, or damage to, property (Endnote 12). These statutory provisions do not enable the victim, as distinct from the Crown, to claim property obtained "as a result of or in connection with [the] commission..." of the crime, or the value of any "pecuniary advantage" thereby obtained. There may be a tension between the statutory right of the Crown and any restitutionary claim of the victim. If there is a conflict, the Crown's statutory right should prevail. Indeed there are dicta which say that the "courts should not indulge in parallel creativity by the extension of general common law principles." (Endnote 13) These dicta may be said to lead to a conclusion that the common law should never contemplate any restitutionary claim (Endnote 14). But, in principle, there should be a restitutionary claim where no confiscation order has been, or can be, made. This conclusion is supported by dicta of the Court of Appeal in Attorney- General v Blake (Endnote 15), where no confiscation order could be made. The Court was prepared to hold that a restitutionary claim may lie for profits gained from a breach of contract, which also amounts to a serious breach of the criminal law. If the Solicitor-General had accepted the Court's pressing invitation to argue this point, then it may well have been that Blake would not have been enjoined (Endnote 16).
2. The implications of the decision of the Court of Appeal in Attorney-General v Blake (Jonathan Cape, third party) (Endnote 17)
The Attorney-General intervenes:
In Attorney-General v Blake the Court of Appeal held that the Attorney-General was entitled, on "extremely rare" occasions, to intervene by instituting civil proceedings to prevent the criminal law being flouted, and to uphold the public policy embodied in the Criminal Justice Act 1988 (Part IV) (Endnote 18). The remedy, which would have "prospective effect...and is a lesser penalty than a confiscation order under the legislation", should be fashioned "to achieve that public law policy of aiming to prevent the offender from profiting as a result of, or in connection with, his crime." (Endnote 19) The facts of Attorney-General v Blake were indeed exceptional. Blake wrote "No Other Choice", describing his life as a spy, and had earned royalties which had not yet been paid to him. But he had committed a serious criminal offence, a breach of section 1(1) of the Official Secrets Act 1989; and there was no likelihood that he would return to England from Russia to stand trial. In particular, he was in breach of his undertaking not to divulge any official information gained as a result of his employment (Endnote 20). In these circumstances, the court has power to grant an injunction if "it appears to be just and convenient to do so" (Endnote 21) ; and the Attorney-General has a "legal right in public law to apply to the court for an injunction in a case of this kind." (Endnote 22) Unless Blake was restrained "from receiving or from authorising any person to receive on his behalf any payment or other benefit resulting from or in connection with the exploitation of No Other Choice in any form or of any information therein relating to security and intelligence which is or has been in his possession by virtue of his position as a member of the Secret Intelligence Services" (Endnote 23), he would benefit from the commission of his serious crime.
A court has then a common law jurisdiction to fashion a remedy to effect the public policy of the Criminal Justice Act 1988 [CJA], as amended. But neither common law nor the CJA grants the victim of a serious criminal offence any claim against any property confiscated. However, although it is doubtful whether the CJA gives a court the power, in the event of Blake's conviction, to confiscate royalties earned by him from the publication of his book (Endnote 24), the common law jurisdiction, not constrained by the language of the statute, prevents a criminal from enjoying the fruits of the crime but does not confiscate those fruits. In Blake the royalties were therefore retained by his publisher (Endnote 25).
The boundaries of this common law jurisdiction are very uncertain. For example, the Court of Appeal emphasised that the occasions on which the Attorney-General should seek to intervene to uphold the criminal law are "extremely rare." Although it is the Attorney- General, and not the court, who determines that the crime is so serious as to compel his intervention (Endnote 26), "the court will carefully scrutinise the application to ensure that it is in the interests of justice that the application should be granted." The Court of Appeal surmised, adopting the submission of the Solicitor-General, that it is unlikely to be granted unless it is "providing carefully targeted support to the enforcement of substantive legislation enacted by Parliament." (Endnote 27) The judgment of the Court of Appeal in Attorney-General v Blake is important for another reason. For the Court expressed the tentative view, even though obiter and without benefit of argument, that restitutionary damages could be awarded in at least two situations, one of which is "where the defendant has obtained his profit by doing the very thing which he contracted not to do" (Endnote 28), which "covers the present case exactly." However, the Attorney-General declined to advance the claim before the Court of Appeal. If he had done so, the Crown would have succeeded in establishing a private law claim for restitutionary damages for breach of contract.
(a) The Forfeiture Principle: Succession rights on death and claims for an indemnity
With a few exceptions (Endnote 29), the common law decisions concern two situations:
(i) Where the criminal (Endnote 30), having been found guilty of murder or manslaughter, seeks to inherit the estate of his/her victim or to claim other benefits (Endnote 31), such as a widow's pensions, invalid care allowances or other social welfare benefits, payable in consequence of the victim's death or injury (Endnote 32).
(ii) Where the criminal claims an indemnity under an insurance policy (Endnote 33).
The guiding principle of the common law is well established: "no system of jurisprudence can with reason include among the rights which it enforces rights directly resulting to the person asserting them from the crime of that person." (Endnote 34) But this emotive principle is imprecise, and it is not clear what is its rationale (Endnote 35). "The result has been controversy as to the scope, uncertainty about the exceptions, and confusion as to the rationale." (Endnote 36) In particular, it is not at all clear whether the forfeiture principle applies if the criminal has no mens rea, but is nevertheless found guilty of a criminal offence; for example, if the criminal is found guilty of involuntary manslaughter (Endnote 37). However, the Forfeiture Act 1982 has now given the court power to make an order modifying the effect of the forfeiture rule if it is just to do so (Endnote 38).
Conviction may be conclusive of guilt in subsequent civil proceedings. But an acquittal in criminal proceedings, where the burden of proof is beyond reasonable doubt, is not necessarily conclusive in civil proceedings. In civil proceedings it may be established that, on the preponderance of evidence, the claimant had committed the crime (Endnote 39); similarly, if the accused committed suicide before his trial for murder (Endnote 40).
(b) Claims based on the Defendant's Unjust Enrichment
It is my view that such claims may lie even though there is legislation which empowers the courts to confiscate the proceeds of crime (Endnote 41).
(i) Direct enrichment
Many crimes cause harm to a known victim and from some of these crimes a criminal may gain a benefit. It would be strange if the criminal act could not ground a restitutionary claim. There is little direct authority to support a principle, which seems so obvious, that a criminal act is a wrongful act which may ground a restitutionary claim. For the victim will be content to rely on established grounds, such as duress (Endnote 42), conversion, deceit, breach of contract (Endnote 43) and breach of fiduciary duty.
(ii) Indirect enrichment
(A) The restitutionary claim against the criminal
The problem is very different if the criminal seeks to exploit his own property
(including information acquired) or his own personality to make a profit
either for himself or his family. The victim, or, more frequently, those
claiming through him, may then seek to recover the profit from the exploitation.
In other common law jurisdictions their claim has failed. Such were the
extraordinary facts of Rosenfeld v Olsen (Endnote
44). The plaintiffs, the parents of children murdered by Olsen, had
obtained an unsatisfied judgment against him (Endnote 45).
In this action they claimed funds which were held on trust for Olsen's wife
and children. The source of the trust funds were payments made to the trustees
by the Royal Canadian Mounted Police (RCMP) in return for information from
Olsen, namely, where he had buried the murdered children. The Court of Appeal
of British Columbia held that the restitutionary claim must fail. The trust
fund was not a benefit gained at the plaintiffs' expense, since they had
not suffered a "corresponding deprivation".
It is difficult to support the decision on this ground, for a restitutionary claim may be based on another's wrongful act. In such situations there is no necessary equation between benefit gained and loss suffered (Endnote 46). However, even if it can be said that the plaintiffs were wronged, there is no English authority which holds that a tort to the person, as distinct from the wrongful infringement of another's property, can ground a restitutionary claim (Endnote 47). Furthermore, it is not clear that Olsen did act wrongfully in giving the information. Finally, it is arguable that the defendants' benefit was gained not at the plaintiffs' expense but at the expense of the RCMP (Endnote 48). For these reasons, it is most doubtful whether a common law restitutionary claim would succeed if facts comparable to the Olsen case were to arise in England.
(B) The restitutionary claim against those who succeed to the criminal's own property
If the difficulties facing the victim (or those claiming through him) in establishing his restitutionary claim against the criminal are formidable, the difficulties in establishing his claim against those claiming through a deceased criminal, who use their own property (Endnote 49), to which they have legitimately succeeded (Endnote 50), to tell their own story or who sell their property or licence its use, are even more formidable. It cannot be wrongful to use your own property for your own benefit, if you choose to do so (Endnote 51).
Have the courts reached a different conclusion if the property is held on trust for those claiming through the criminal?
It would be strange if they had, and that the beneficiaries of a trust are in a worse position than persons legally and beneficially entitled. As the law now stands, they are not.
Fiduciaries must exercise their powers in the best interests of the present and future beneficiaries of the trust. Trustees and personal representatives (Endnote 52) are fiduciaries, and must act in the best interests of those beneficially entitled under the trust or in the best interests of the estate respectively (Endnote 53). Their best interests have been held to be their financial interests. Consequently, they must make profitable use of trust property. The moral reservations of the fiduciaries are neither here nor there; indeed if fiduciaries were allowed (or indeed required) to override their business judgments, they would be exposed to an action for breach of trust. It is true that if all the beneficiaries are adult they may decide to ignore their financial interests, for example, because they hold certain moral views. And there may be "very rare" "circumstances in which arrangements which work to the financial disadvantage of a beneficiary may yet be for his benefit: see, for example, Re Towler's Settlement Trusts [1964] Ch. 158; Re C L [1969] 1 Ch. 587." (Endnote 54)
The duties and responsibility of the Official Trustee are no different from those of any other fiduciary. As the Official Solicitor wrote to me, in a letter of 8 January 1998:
"The Official Solicitor is an administrator or trustee of last resort. He should only act when appointed by the court because there is no other person who is either suitable or willing to act...
“Where the purpose of the appointment of the Official Solicitor is to ensure that the interests of all potential beneficiaries are properly protected, it would be unjust to the beneficiaries if the administrator appointed by the court, by virtue of his office, were to be constrained in pursuing their interests by limitations which would not apply to any other fiduciary. The court, in considering appointment, would have to decide whether the disadvantages of appointing the Official Solicitor because of the limitations which the law imposed upon him outweighed the other considerations."
In my view, the Official Solicitor's letter is a clear and accurate statement of the nature and scope of the Official Solicitor's fiduciary duties and powers. When he and other fiduciaries are exercising their investment powers, they are not consciously profiting from the misery and sufferings of the families of victims, of which they may be painfully aware. But they have no option but to do the best they can financially for the beneficiaries.
I understand and deeply sympathise with the deep feelings of anger and frustration at the invasion, by certain organs of the media, of the privacy of the families of the victims of crime, particularly violent crime. As one member of that class movingly wrote: (Endnote 55)
"The nature of violent crimes, (for example rape, murder and sexual abuse), represents the ultimate invasion of the human right to privacy. Yet the 'secondary victims' become doubly deprived. Not only do they lose a loved one but also their right to find a way of coming to terms with this atrocity in the privacy that is required during the grieving/healing process. The law as it stands is not balanced in favour of those who are most in need of protection."
However, English law does not, as yet, recognise a right to privacy. And I am not asked to enquire into whether it is desirable for English law to recognise such a right (Endnote 56). If it were one day to be recognised, the legislature and the courts will have to resolve the tension which exists between the rights of 'secondary victims' and the rights of those beneficially entitled to property. My enquiry is a more limited and different one, as my terms of reference demonstrate.
In formulating my conclusions and the advice I offer to the Lord Chancellor, I have borne in mind that the Human Rights Bill may soon receive the royal assent.
The Lord Chancellor has asked me:
a) "to examine the extent, if any, to which beneficiaries of the estates of deceased persons should be permitted to profit from the sale of property, or other rights, the value of which has been affected by criminal activity by the deceased person or others associated with the deceased..."
I have interpreted the phrase beneficiaries of the estates of deceased persons to embrace the situations where the legal and beneficial title to "property or other rights" is vested in those beneficiaries; and also where the "property or other rights" are held by trustees on trust for those beneficiaries.
As has been seen (Endnote 57), it is very doubtful whether the common law will compel a criminal, who profits "from the sale of property or other rights, the value of which has been affected by criminal activity", to disgorge those profits. It is even more doubtful whether those claiming through the criminal and are innocent of the crime will have to do so. It is true that at common law a person convicted of murder or manslaughter, and those claiming through him under his will or on his intestacy, cannot succeed to the estate of his victim (Endnote 58). In contrast, there is no common law authority to suggest that those claiming through the criminal cannot succeed to, and exploit, the property of the criminal which was not acquired from his victim. Furthermore, it does not matter whether that property is or is not held on trust for the "beneficiaries of the estates of deceased persons".
Parliament would, therefore, have to act in order to strip the criminal "or others associated with the deceased" (Endnote 59) of his profits from "the sale of property or other rights, the value of which has been enhanced by criminal activity...". However, there is the Human Rights Bill, which states, inter alia, that it "is unlawful for a public authority to act in a way which is incompatible with one or more Convention rights." (Endnote 60) Moreover, the relevant Minister of the Crown must make a statement that the provisions of any proposed Bill are, in his view, "compatible with the Convention rights." (Endnote 61)
Article 1 of the First Protocol to the European Convention on Human Rights, entitled Protection of property, reads (in part) as follows:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. Noone shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principle of international law."
So, only if it is in the public interest may a person be "deprived of his possessions". It is most doubtful whether it is in the public interest (even if that nebulous phrase is given its most generous meaning) to restrict the use by the innocent beneficiaries of the estates of deceased criminals of their own property, without adequate compensation. The relevant Minister would have to state that it is in public interest to deprive a person of his possessions.
Article 10 of the European Convention protects freedom of expression, including the right "to receive and impart information and ideas without interference by public authority" (Endnote 62). But the right "may be subject to such formalities, conditions restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the production of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
Again, the Minister would have to make a statement that the proposed Bill was compatible with this Article (Endnote 63).
Notwithstanding such a statement, the court may make a declaration of incompatibility (Endnote 64).
Furthermore, even if any proposed legislation is deemed to be compatible with Convention rights, there are formidable difficulties in drafting legislation to achieve the object of stripping the "beneficiaries of estates" of the profits of crime, as the experience of the United States demonstrates.
The experience of the United States (Endnote 65)
But the analogy of the United States legislation must be invoked with caution, for more than one reason. This legislation gives victims of a crime the right to satisfy, from the "profits" of crime, an award of damages (Endnote 66). This is the limit of their right to "compensation". But the legislation does not otherwise contemplate any claim against the "beneficiaries of estates" of the criminal. With these significant reservations, the United States experience is not unhelpful.
The American legislation poses questions (Endnote 67) which must be answered before any legislation is contemplated in this country. It is based on the assumption, which some may well question (see above), that public policy demands that a criminal be stripped of his profits, even if this means restricting his right to exploit his own property, experience and personality (Endnote 68).
(i)
(a) Who should be deemed to be a "criminal"?
(b) Are some crimes less heinous than others, and consequently those criminals
should not be stripped of any profits?
(c) Should a self-confessed criminal who is never tried and convicted be
treated as a "criminal" for the purpose of the legislation? (Endnote
69)
(d) Should any statutory provision apply to a person who subsequently admits
guilt but is not indicted (Endnote 70), as well as to
a person convicted?
(e) Should the court have power to grant an interlocutory injunction against
an accused if there is probable cause to believe that the profits of the
crime are likely to be disposed of or dissipated before trial? (Endnote
71)
(ii) How wide-reaching should the terms of its statutory provisions be? What "activities" of the criminal should it cover?
(iii) What are profits which are the product of (or obtained as "result of or in connection with") the crime? When does a criminal obtain a "pecuniary advantage"?
(iv)
(a) Should persons claiming through the criminal, for example, his heirs
or those entitled under his will, be compelled to disgorge their profits?
(b) Should he who contracts with the criminal be compelled to disgorge his
profits? (Endnote 72)
(c) Is the person who has not contracted with the criminal but has interviewed
the criminal and has had access to data supplied by the criminal's family
in a significantly different position from the contractor? Is it acceptable
to restrain the rights of innocent parties, publisher and non-contractor?
There are then formidable difficulties in drafting legislation which answers all these questions satisfactorily.
In summary: Such legislation would significantly restrict the rights of persons, innocent of any crime, to exploit their own property, albeit inherited from the criminal. They are not exploiting property inherited from any of the criminal's victims. (Endnote 73) To prevent them from doing so may well be an unacceptable encroachment on an individual's fundamental rights, in particular, the right to the peaceful enjoyment of one's possessions and the right to freedom of expression (Endnote 74). These rights are not directly incorporated into English law. But even if a Minister makes a statement of compatibility, "If the court is satisfied that the provision is incompatible with one or more of the Convention rights, it may make a declaration of that incompatibility." (Endnote 75)
I therefore conclude that the objections to the introduction of legislation to restrain the use of property or other rights by the beneficiaries of the estate, the value of which has been affected by criminal activity by the deceased person or others associated with the deceased", are persuasive.
b) "the extent, if any, to which executors and administrators should be allowed to take account of the effect on the public of decisions taken in the administration..."
The executors' or administrators' fiduciary duty of loyalty is owed to those entitled under the will or intestacy respectively. They may have no idea what may be the "effect on the public" of their decisions; for example, if they decide to publish, or not to publish, the diary of a convicted murderer. "The effect on the public" is a concept which gives reasonable fiduciaries little or no sensible guidance when deciding to exercise their duties and powers. To compel them to take into account the public interest may well lead them to apply to the court for guidance, with all the attendant costs, to protect themselves from any subsequent claim that they had acted in breach of trust (Endnote 76).
If fiduciaries are required to take into account "other" interests, such as, the psychological impact of their decisions on those entitled to the estate (or the beneficiaries of the trust) or the feelings of the members of the families of victims, their fiduciary responsibilities will become even more difficult to discharge. It will become impossible for them to exercise reasonably their fiduciary duties and powers. Some who will become, or are, beneficially entitled may be concerned to protect their financial interests; some family members of victims may be resilient and may not care, while others may not be identifiable. If the fiduciaries act without seeking the guidance of the court, they will be exposed to the suits of those who have standing to complain of breach of trust. This will lead cautious fiduciaries to make, possibly repeatedly, applications to the court for guidance.
Finally, there is the consideration of fairness. If executors and administrators (and trustees) are under a duty to consider the above considerations, then the beneficiaries may not stand to benefit financially; valuable property rights, for example, literary rights, may not then be exploited. However, if both the legal and equitable title to the same literary rights is vested in those beneficially entitled, they will be able to do so. They are not fiduciaries, and are simply making profitable use of their own property. To draw such a distinction is indefensible.
I conclude that it would not be wise to allow or require "executors and administrators...to take account of the effect on the public of decisions taken in the administration."
c) "the extent, if any, to which special considerations should apply in respect of particular classes of beneficiaries and others with claims against the estate, for example, associates of the deceased, and victims of crimes associated with the deceased;"
This question has largely been answered. For reasons stated in a) above, my view is that the victims of crime should have no restitutionary claim against the descendants of the criminal who exploit their own property.
d) "whether any, and is so what, special considerations should apply where the Official Solicitor is appointed to administer the estate;"
The Official Solicitor is, and should be, in no different position from other fiduciaries.
Like them he must act for the benefit of those entitled to the estate when administration is complete or for the benefit of the beneficiaries whose property is held on trust. To require him to take into account, in making his decisions, the "interests of the public" may result in him making repeated applications to the court for guidance and in him overriding property rights which he holds on trust for others.
e) "The implications of any changes recommended for other branches of the law, in particular the law of trusts."
For the reasons set out in a) to d) this question does not arise.
Appendix Queensland Crimes (Confiscation of Profits) Act No. 60 (Endnote 77)
The Supreme Court may make an order that a person convicted of a "serious offence" forfeit to the Crown the proceeds from a contract relating to:
"(a) a depiction of a serious offence or alleged serious offence in a movie, book, newspaper, magazine, radio or television production, or a live entertainment of any kind;
or
(b) an expression of the person's thoughts, opinions or emotions regarding the serious offence or alleged serious offence."
The other contracting party may be directed to pay the contract moneys to the Treasury on behalf of the Crown. The Treasurer may, if directed by the Governor in Council on the recommendation of the Attorney-General, apply the money to satisfy a court order that the defendant make restitution or that the defendant pay damages to a person for injury suffered (Endnote 78).
| 1 | Cf. the terms of South Australia Crimes (Confiscation
of Profits) Act, No. 17 of 1986, s. 4(2), which reads:
"(2) Where- (a) there has been an accretion to a person's property in consequence of the commission of a prescribed offence (either by that person or some other person); but (b) identification of specific property as being liable to forfeiture under subsection (1) is not possible (either because the property has been dissipated or for any other reason), the whole of the person's property is liable to forfeiture under this Act but, on an application for forfeiture, only so much of the property as is necessary to realize a sum equal to the value of the accretion shall be forfeited." |
| 2 | c. 33. |
| 3 | c. 4. |
| 4 | c. 11. |
| 5 | c. 37. |
| 6 | A confiscation order must also be made if the criminal is found guilty of one of a limited number of summary offences. |
| 7 | s. 72AA (3)(4)(5). |
| 8 | See Freiburg, Confiscating the Literary Proceeds of Crime [1992] Crim.L.R. 96. |
| 9 | For the same reason it is doubtful whether the facts of Rosenfeld v Olsen (1986) 25 D.L.R. (4th) 472 (see below p. 15) would fall within the sub-section. |
| 10 | Below p. 14 et seq. |
| 11 | CJA, s. 71(1)(C). |
| 12 | Powers of Criminal Courts Act 1973, s. 35. |
| 13 | Chief Constable of Leicestshire v M [1989] 1 W.L.R. 20, 23, per Hoffmann J., cited with approval in Halifax Building Society v Thomas [1995] 4 All E R 673, 682, per Peter Gibson L.J. But see below p. 6 n. 18. |
| 14 | It is arguable that if the criminal is a constructive trustee of his profits for the benefit of his victim, then the Crown cannot confiscate property to which the criminal is not beneficially entitled. I do not find this argument persuasive. The confiscation order will normally be made before any civil suit is brought; and even if the victim is successful, his beneficial title may vest only at the date of judgment: cf. Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] A.C. 669, 716, per Lord Browne-Wilkinson. |
| 15 | [1998] 1 All E R 833, 843-846, per curiam: below p. 6. |
| 16 | Below p. 10. |
| 17 | [1998] 1 All E R 833 (C.A.). |
| 18 | As amended by the Proceeds of Crime Act 1995 |
| 19 | [1998] 1 All E R 833, 850, distinguishing Chief Constable of Leicestershire v M [1989] 1 W.L.R. 20, 23. (The Attorney-General was in a different legal and constitutional position from the Chief Constable; and it was in the context of a claim by the Chief Constable to freeze assets that Hoffmann J. had said that the "courts should not indulge in parallel creativity [referring to the interventions of Parliament] by the extension of general common law principles." |
| 20 | This undertaking applied, not only during the period of his service, but after he had ceased to be in the service of the Crown. |
| 21 | Supreme Court Act 1981, s. 37(1). |
| 22 | [1998] 1 All E R 833, 852. |
| 23 | This was the form of the injunction. |
| 24 | Above pp. 2-4. |
| 25 | No injunction was claimed against the publisher.
Could the publisher appropriate the royalties for its own benefit, as distinct from "retaining" them? (For the wording of the injunction, see the text accompanying n. 22 above.) The Court of Appeal does not give a clear answer. But the Court did say that if there is a use proposed for the unpaid royalties, which is not contrary to the public interest, then the court can authorise that use, by way of variation of the terms of the injunction, on the application of the Attorney-General, having given notice to Blake and his publisher: [1998] 1 All E R 833, 852. |
| 26 | "The Attorney, because of his central role in the enforcement of the criminal law, is in a peculiarly appropriate position to judge when to make an application to a court for a remedy": [1998] 1 All E R 833, 851. |
| 27 | [1998] 1 All E R 833, 851. The proposed injunction
was said to be justified under the European Convention on Human Rights
"as being a necessary and proportionate measure adopted in the interests
of national security." The Court of Appeal appears to be referring to
Article 10.
Cf. now the Human Rights Bill, presented to Parliament 23 October 1997, which "renders it unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights": clause 6. |
| 28 | [1998] 1 All E R 833, 846. |
| 29 | Rosenfeld v Olsen (1986) 25 D.L.R. (4th) 472 (B.C.C.A.) (below p. 15) is the one Commonwealth authority. In the United States there is a sprinkling of decisions: Fasching v Kallinger and others, 510 A. 2d 694 (1986) is representative. In all of these decisions the victim's claim (or the claim of those claiming through him), based on the unjust enrichment of the criminal (or those claiming through him), failed. |
| 30 | Or those claiming through him. |
| 31 | See Goff and Jones, The Law of Restitution (4th ed.) Chap. 37. |
| 32 | See, for example, the decisions of the Social Security Commissioners in [1991] Jo. of Social Welfare and Family Law, 144 et seq. |
| 33 | See, for example: Tinline v White Cross Insurance Association Ltd [1921] 3 K.B. 327; Haseldine v Hosken [1933] 1 K.B. 822. For a helpful discussion of this line of cases, see Maddaugh and McCamus, The Law of Restitution, 497 et seq. |
| 34 | Cleaver v Mutual Reserve Fund Life Association [1892] 1 Q.B. 147, 156, per Fry L.J., quoted with approval by Lord Atkin in Beresford v Royal Insurance Co. [1938] A.C. 586, 596. |
| 35 | "The so-called "forfeiture rule" was one of the solutions devised to fill the gaps left following the abolition of the old rule [criminal forfeiture]. The difficulty was that the new rule was devised by judges to solve the necessities of particular cases. It developed without a great deal of consideration, either of its scope, or of its exceptions, or of its fundamental underlying rationale": Troja v Troja (1994) 33 NSWLR 269, 278, per Kirby P, cited with approval in Dunbar v Plant [1997] 4 All E R 289, 305, per Phillips L.J. |
| 36 | Troja v Troja (1994) 33 NSWLR 269, 278, per Kirby P. |
| 37 | See: Re Giles [1972] Ch. 544; Gray
v Barr (Prudential Assurance Co. Ltd., third party) [1970] 2 Q.B.
626, 640, per Geoffrey Lane J., [1971] 2 Q.B. 554. 581, per
Salmon L.J.; Re K (deceased) [1985] Ch. 85 (C.A.); Re H (deceased)
[1990] Fam.L.R. 175.
But it does apply to the offence of aiding and abetting a suicide, contrary to s. 2(1) of the Suicide Act 1961: Dunbar v Plant [1997] 4 All E R 289 (CA). |
| 38 | But the court shall not do so "unless it is
satisfied that, having regard to the conduct of the offender and of
the deceased and to such other circumstances as appear to the court
to be material, the justice of the case requires the effect of the rule
to be so modified in that case": s. 2(2).
In Dunbar v Plant [1997] 4 All E R 289 Mummery and Phillips L.JJ. discussed the factors which a court should take into account in determining whether or not to exercise its discretion under s. 2(2). But nothing in the Act "shall affect the application of the forfeiture rule in the case of a person who stands convicted of murder": s. 5. |
| 39 | Gray v Barr (Prudential Assurance Co.Ltd., third party) [1971] 2 Q.B. 554. |
| 40 | Re Sigsworth [1935] Ch. 89. |
| 41 | Above pp. 4-5. |
| 42 | It is said that duress is not a tort per se: see The Universe Sentinel [1983] 1 A.C. 366, 395, per Lord Diplock; The Evia Luck [1992] A.C. 152, 165-167, per Lord Goff. |
| 43 | Attorney-General v Blake [1998] 1 All E R 833: below p. 18. |
| 44 | (1986) 25 D.L.R. (4th) 472. |
| 45 | The judgments had been obtained under the Family Compensation Act. |
| 46 | Mason v The State of New South Wales (1959) 102 C.L.R. 108, 146, per Windeyer J. (High Ct of Aust.). |
| 47 | See Goff & Jones, The Law of Restitution, Chap. 38. |
| 48 | Cf. Halifax Building Society v Thomas [1995] 4 All E.R. 673, where a mortgagee, who had not elected to avoid the mortgage on the ground of the mortgagor's deception, was not entitled to the surplus proceeds of the sale of the mortgaged property, the mortgage debt having been satisfied. |
| 49 | For example, diary and photographs bequeathed to them by the criminal. |
| 50 | As distinct from property inherited from the criminal's victim. |
| 51 | Article 1 of the First Protocol of the European Convention on Human Rights; the Human Rights Bill, clauses 1-6. |
| 52 | ""Personal representative" means the executor, original or by representation, or administrator for the time being of a deceased person...": Administration of Estates Act 1925, s. 55(1)(xi). |
| 53 | The trustees' fiduciary duties are owed to
the beneficiaries.
In contrast, the personal representatives' duty is to liquidate the estate and distribute the assets to those beneficially entitled or to trustees, if a trust is established by the will. While the estate is administered, their fiduciary duties are therefore owed to the estate: Re Hayes' Will Trusts [1971] 1 W.L.R. 758. |
| 54 | The principal authorities, which support these principles, are: Cowan v Scargill [1985] Ch. 270, 288, per Sir Robert Megarry V.-C.; Harries v Church Commissioners for England [1992] 1 W.L.R. 1241, 1246, per Sir Donald Nicholls V.-C. See also Buttle v Saunders [1950] 2 All E R 193. |
| 55 | In a letter to me. |
| 56 | Cf. Article 8 of the European Convention on Human Rights, (Right to respect for private and family life); and Human Rights Bill, clauses 1-6. |
| 57 | Above p. 15 et seq. |
| 58 | See above p. 11 et seq. He is also prevented from enjoying "other benefits", such as a widow's pension: see above p. 11. |
| 59 | I have interpreted this phrase to include those persons claiming through the criminal, for example, those who take under his will or on his intestacy. |
| 60 | Clause 6. |
| 61 | Clause 19(1)(a). |
| 62 | Article 10. |
| 63 | Cf. Attorney-General v Blake [1998] 1 All E R 833, 851 where the proposed injunction was said to be readily justifiable "under the European Convention of Human Rights as being a necessary and proportionate measure adopted in the interests of national security": see above p. 6 et seq. |
| 64 | Clause 4: below p.31 |
| 65 | Cf. the Queensland Crimes (Confiscation of Profits) Act 1989, No. 60, s. 60, which is reproduced in the Appendix. |
| 66 | New York |
| 67 | The statutes of Congress and of the states are largely modelled on the New York statute: Executive Law, Section 632-a. They cannot be easily transplanted, principally, for two very different reasons. First, some of the statutory provisions have been drafted to avoid infringing the First Amendment of the Constitution. Secondly, the amount of civil damages to compensate the victim, for example, for the violation of civil rights, is determined by the jury. Many of the awards would certainly be regarded as excessive in England. In one case the families of a criminal, who had murdered 15 boys and men, were awarded some 80 billion dollars. In comparison, bereavement damages in England are fixed at £7,500: Administration of Justice Act 1982, s. 1(3)(b). |
| 68 | The origin of the New York statute were the
crimes of a serial murderer, David Berkowitz, the self-entitled "Son
of Sam" killer. He was offered a book deal, with a $250,000 advance,
before he had been tried and convicted. The public outrage which followed
led to the statute which took the media profits from him and held them
in escrow for five years to satisfy any civil judgment against him.
(The limitation period governing any civil action was also extended.)
Although the Supreme Court subsequently struck down the statute on the
ground that it was over-inclusive, the Court did acknowledge that the
state did have "an undisputed compelling interest in ensuring that criminals
do not profit from their crimes" and in "ensuring that victims of crime
are compensated by those who harm them": Simon & Schuster, Inc. v
New York State Crime Victims Bd., 502 U.S. 105, 118-119 (1991).
The New York statute had been adopted in many sister states. It was subsequently amended, after the Supreme Court decision. (The state statutes are conveniently collected in 29 Ga. L.R. 1121 note 54 (1995)). |
| 69 | Cf. Re Sigsworth [1935] Ch. 89. |
| 70 | In Simon & Schuster Inc v Members of the New York State Crime Victims Board, 502 U.S. 105, 121-122 (1991), the Supreme Court of the United States, in striking down the New York statute, said: "..the law...would have escrowed payment for such works as The Autobiography of Malcolm X, which describes crimes committed by the civil rights leader before he became a public figure; Civil Disobedience, in which Thoreau acknowledges his refusal to pay taxes and recalls his experience in jail; and even The Confessions of St. Augustine, in which the author laments "my past foulness and carnal corruption of my soul."" |
| 71 | Cf. Cal. Civil Code, §2225(f)(2); and (in England) Chief Constable of Leicestershire v M [1988] 3 All E.R. 1015, distinguished in Att.-Gen. v Blake [1998] 1 All E R 833, 850-851. |
| 72 | The New York statute simply requires the "contractor" to give notice to the Crime Victims Board of any payment or obligation to the criminal. Cf. the New Jersey case of Fasching v Kallinger and others, 510 A. 2d 694 (1986) (where a claim of the families of the murdered victims against an author and publisher failed. The author and her publisher were not unjustly enriched, and could not be said to be the criminal's agent within the meaning of the state's "Son of Sam" statute.) |
| 73 | As has been seen, the American "Son-of-Sam" legislation does not seek to restrict the rights of those claiming through the criminal. |
| 74 | See Article 10 of the European Convention on Human Rights and Article 1 of the First Protocol. |
| 75 | Clause 4. The Minister may make a remedial order: clauses 10-12. |
| 76 | The court will then have the unenviable task of determining whether they have taken into account "the effect on the public" of their decisions. |
| 77 | Cf. the terms of South Australia Crimes
(Confiscation of Profits) Act, No. 17 of 1986, s. 4(2), which reads:
"(2) Where- (a) there has been an accretion to a person's property in consequence of the commission of a prescribed offence (either by that person or some other person); but (b) identification of specific property as being liable to forfeiture under subsection (1) is not possible (either because the property has been dissipated or for any other reason), the whole of the person's property is liable to forfeiture under this Act but, on an application for forfeiture, only so much of the property as is necessary to realize a sum equal to the value of the accretion shall be forfeited." |
| 78 | S. 63. The person in whose favour an order is made may apply within five years that it be satisfied out of the moneys paid to the Crown. After five years all claims are barred, and the moneys are paid to Consolidated Revenue. |