Deepak Singh finds a criminal doesn't always forfeit all rights

The desire to strip convicted offenders from the benefit of their unlawful activities led Parliament to pass the draconian provisions of the Drug Trafficking Offences Act 1986 and part VI of the Criminal Justice Act 1988 (CJA) which enables courts to make orders to confiscate amounts equal to the value of the benefit derived from crime.

The recent "landmark" Court of Appeal decision in Halifax Building Society v Junior Thomas is of interest because it seemingly accepts that there are circumstances in which the law will allow an offender to claim title to gains made by wrongdoing.

Thomas obtained a mortgage from Halifax Building Society having made false representations to it. He fell into arrears and the society obtained a possession order, sold the property for a sum in excess of that lent and deposited the surplus into a suspense account, in respect of which the Crown obtained a charging order through CJA powers.

The Halifax sought a declaration claiming the profit belonged to it, not Thomas, and the charging order could not affect the profits of sale. To support this it relied on principles of restitution, unjust enrichment and constructive trusts. The court held that these principles could not apply to the case, that the building society had affirmed the mortgage and enforced its rights and was in the position of a secured creditor who had recovered all it was entitled to.

Lord Justice Peter Gibson said that had the society sought to avoid the mortgage instead of affirming it, it may well then have been able to claim the profit.

From a mortgagee's point of view the decision will have particular relevance if a buoyant property market ever returns. Where there are good grounds to suspect mortgagees have been deceived into making an advance they would be well advised to carefully consider whether and how to enforce their security or whether some other form of redress should be sought. Choice of remedies is of crucial importance in this context.

From the defendant's perspective the decision suggests a criminal does not forfeit all rights upon conviction. The decision respects the relationship of debtor and creditor and affirms that so long as such a relationship is continued the court will not indulge in judicial creativity to deprive them of gains, even those derived from a proven wrongdoing.

From the State's view the decision supports legislation aimed at stripping offenders of the profits of crime, consistent with a recognised trend in penal evolution which focuses on financial penalties in a more fiscal society.

Deepak Singh is principal Crown prosecutor at the CPS Central Confiscation Unit.