Friday, March 02, 2012

Honestly paying for illegal gains

For a 3-2 split on statutory interpretation, involving differences over legislative intent and the scope for application of the principle that property rights are not taken away except where the intention to do so is clear, see Re Peacock [2012] UKSC 5.

The subject of the dispute is not of much interest unless your legislation on recovery of the proceeds of crime leaves it unclear whether property acquired honestly after a recovery order is made can be included within the order. In this case the majority held that the legislature did intend that such honestly and after-acquired property should be recoverable.

The problem arose in Peacock because a confiscation order was made on a calculation which included a reduction to recognise the defendant's means to pay. Subsequently his means legitimately increased. In New Zealand under the Criminal Proceeds (Recovery) Act 2009 a profit forfeiture order does not take into account the defendant's means to pay, and any amount over that actually realised remains owing as a debt to and recoverable by the Crown.