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Isn't one answer to Steve this: the policy against allowing me to benefit from my own sin is (or should be) stronger than that against allowing me to benefit from someone else's? I know most confiscation legislation doesn't accept this & says that no-one is allowed to possess property that they know has ever been involved in illegality by anyone: but instinctively there's a good deal to be said for the distinction. For instance, we often say criminals shouldn't be allowed to cash in by writing books about their misdoings: but presumably we don't say the same about crime writers. If so, it begins to look a good deal less odd that I should have a claim against the coke-dealer for his ill-gotten gains.

Andrew

===== Original Message From Steve Hedley =====

At 10:36 23/04/2003 -0400, Jason Neyers wrote:

... does it not still seem that there is an inconsistency in the cocaine situation-- by allowing recovery, the court is saying that my right to property (money or whatever) includes the right to make a profit by deploying it in an illegal manner. Is this not the same inconsistency that worried the court in Hall v. Hebert?

Yes indeed - or (what may be the same point put another way) someone who accepts that the defendant must lose the money might nonetheless be puzzled at the suggestion that it must go to the claimant, via a tracing remedy. If the defendant isn't allowed to profit from wrongdoing, why is the claimant?

The point was (so far as I know) first made by Len Sealy in relation to Reading, though it is equally good in relation to the cocaine example, or for that matter the (very wonderful) Blake case. If the law's attitude is that the cocaine transaction (or whatever) should never have been made, how come the claimant is entitled to the benefit of it? Sealy's view of Reading was (still is?) that while it was argued as a private law case, the result is only convincing because the state was involved. A soldier who gets smugglers through a check-point with his uniform is one thing; but if we imagine purely private law facts (Sealy's example was of a tabloid reporter obtaining benefits through misuse of his press pass) we can't imagine the court being quite so enthusiastic about allowing the employer a remedy.

As to the detail of the cocaine example, rather a lot might depend on why the claimant wanted to trace. If the claimant has lost the money entirely unless tracing is available, I can imagine a court being sympathetic. If however (as the precise terms of the question suggest) the claimant had an alternative remedy but wanted to reap the reward of a fantastically profitable coke deal, that might be another thing .....

Steve Hedley

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FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE

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