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UK readers may be interested to know that the government introduced a bill last Thursday (Proceeds of Crime Bill) to broaden the law in this area. It is available on the net, and makes interesting reading. It is in pdf format, and is long (444 clauses and 9 schedules).

http://www.parliament.the-stationery-office.co.uk/pa/pabills.htm

In particular:

1/ In any criminal case which ends up before the Crown Court, the court has power to order confiscation of any benefits obtained through the crime (clause 6).

2/ Where the defendant had a "criminal lifestyle" then it is presumed that all property s/he owns was derived from crime, and is therefore forfeit, unless the defendant can prove the contrary. Also, property transferred by the defendant to others for less than full value is a "tainted gift" and is also liable to forfeiture (clauses 77-78). "Criminal lifestyle" is defined in clause 75 as meaning (i) conviction for certain specified offences (specifically drug trafficking and money laundering, though the secretary of state may add to this list as the whim strikes him); or (ii) the offence was "committed over a period of at least 6 months"; or (iii) there is a "course of criminal activity" consisting of at least 3 offences, or at least 2 offences in the last 6 years.

3/ The proceeds of any criminal conduct are subject to a civil claim (by clause 245 et seq). Proof (including proof of criminality) is by the civil standard, not the criminal standard (clause 246(3)). It is irrelevant that the proceeds were only obtained through expenditure of some kind (247(2)(a)) - it is not a "profit" measure in a pure sense. So if (for example) an itinerant hamburger salesman parks his van on a double yellow line for a night of business, then he is liable to an action for his gross receipts for that night's trading (not merely his net receipts or his "profit", however measured).

To say that it takes us back to the medieval position, whereby the assets of a felon were forfeit, is clearly an understatement. It is not entirely clear how any of it relates to other civil claims that may be brought against the defendant, though the overall approach suggests that anyone who cannot assert a proprietary claim over the assets in question can whistle for them. AG v. Blake becomes an easy case, but only because the government is both prosecutor and wronged employer.

Steve Hedley

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FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE

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