Date: Thu, 10 May 2007 22:25

From: Andrew Tettenborn

Subject: Illegal gains

The position in England is, as might be expected, much the same on principle as in Canada. In one spectacular case, Costello v Chief Constable of Derbyshire [2001] 1 W.L.R. 1437, the police seized a stolen car from the thief, but while it was clear that the thief was a thief no-one managed to establish whose the car really was. The thief won his action against the police. A similar case is Gough v Chief Constable, West Midlands [2004] EWCA 206, where the Court of Appeal reached the same conclusion although with considerable distaste.

There is a theoretical reason for this rather bizarre rule. Unbelievable as it may seem to a civil lawyer, English law does not have any equivalent of the Roman vindicatio (i.e. a proprietary action to let an owner get his property back from a wrongful possessor). Instead we say that anyone with actual possession of goods can proceed in delict against someone without a better right who takes the goods from him, and can recover the full value of the goods as damages (the court also has a discretion to order the return of the goods themselves). Unlike the position under the vindicatio, where the plaintiff has to prove he is the owner, all that is required is proof of actual possession: the fact that that possession is wrongful as against a third party is therefore irrelevant.

However, one qualification must be noted. Our rules of ordre public / public policy prevent a person suing for the taking of goods where it was actually illegal for him to possess them at all (i.e. if you steal my stock of crack cocaine I can't sue you). Today this may be of more relevance than it seems. Recently we introduced legislation aimed at money-laundering, which is very wide. That legislation makes it illegal (subject to a few exceptions that don't matter here) to possess anything which is the proceeds of crime. This might mean that cases like Costello would be decided differently today, the argument being that the possession of the stolen goods was itself a crime and hence the possessor could not sue someone who took them. There's been no decision yet on this point, but the argument seems pretty unassailable to me.

I hope this helps. If Marten would like further details offlist, I'll be happy to assist.

Andrew Tettenborn

I'm struggling a bit with an article that I am supposed to write on a subject that I believe is rather familiar to many of you but which has not, I think, been dealt with that much in Swedish law before. The issue is whether and to what extent criminals are excluded from the protection of tort law. More specifically I'm dealing with cases of property damage, where the property was in the possession of the criminal as a direct result of the criminal activity.

A neat case dealing with this will be decided by the Swedish Supreme Court soon. The circumstances were something like this: Drug dealer A has made money by selling narcotics. B robs A, and is criminally responsible for the robbery. A wants compensation in tort law for the stolen drug money. Is this situation different if B steals property that A has in her turn stolen from O (owner) (if, say, O is unknown)?

I would be very - very! - interested to see what kind of discussion these kinds of issues have raised in common law.

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