Some reflections on the principle of forfeiture as applied to the administration of estates

12th November 2018

It is a basic principle of social morality that crime should not pay. A crime is a wrong against society that is sufficient serious for its commission to generate a punishment that is (hopefully) a deterrent against such behavior. In relatively recent years, criminal courts have had powers to forfeit criminal benefits (to the state) or to require the payment of compensation for losses caused to third parties by such behavior. But as a matter of policy the legal system has applied a series of rules to private law transactions and events that aim to prevent persons benefiting from their crimes. But these rules do not spring from the same historical roots, and are not consistent in application or effect. The doctrine of illegality as it applies to consensual transactions is pretty much judge made; was a mess; and is now governed by the principles set out in Patel v Mirza [2016] UKSC 42. Watch this space to see how these principles are interpreted in years to come. The doctrine of forfeiture is historically different, based as it was on the principle of escheat, or forfeiture to the Crown of the estates of a convicted felon.

Leslie Blohm QC

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