Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Wed, 23 Apr 2003 19:25:27 +0100 |
| Re: |
Tracing Into Proceeds of Illegal Investments |
At 18:30 23/04/2003 +0100, Andrew Tettenborn wrote:
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.
Well, this has nothing to do with the point I raised
-- My point was rather the lack of a positive reason why the claimant
should be able to get the money. It doesn't matter how badly the defendant
deserves to lose it, if there is no reason why the claimant should get
it. Public policy only comes into the matter once we have established
some such reason.
But it's an interesting question anyway, of who we regard
as "profiting from the crime of another". Insurance companies, police
officers, criminal barristers, and crime writers all make their money
from the crime of others -- if there were no crime, they would all have
to take up quite different jobs. Yet we don't regard them as "profiting
from the crime of another" for legal purposes, whereas (say) the recipient
of a gift from a career criminal probably would be. This distinction is
intuitively appealing, but I'm finding it hard to put into words, and
Andrew's formulation certainly doesn't explain it. How would someone else
put it?
Steve Hedley
============================================= ansaphone : +44 1223 334931 Christ's College Cambridge CB2 3BU
FACULTY OF LAW, UNIVERSITY OF CAMBRIDGE
www.stevehedley.com
fax : +44 1223 334967
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