Research Handbooks in Financial Law series
Edited by Barry Rider
Chapter 37: Confiscation and forfeiture
A criminal should not benefit from his crimes. The proposition has long been accepted, but only in the last generation has it translated to an explicit feature of international jurisprudence. A consensus has formed in support of the proposition that ownership of wealth obtained through crime is a rescindable title. The mechanisms designed to bring that proposition to effect can be considered under the headings of confiscation and forfeiture. Sticking with founding principles, there are two issues claiming early consideration. The first relates to the nature of the mechanisms that enable a court to confiscate wealth and force forfeiture. Are they a means of imposing further punishment against the offender? Or are they instead actions to be focussed on the wealth itself, no matter who owns it when the action is enforced? To embrace the Latin: are these actions in personam, that is, against the person; or in rem, that is, against the thing or object or amount of money that embodies the wealth? The answer in practice is both: some of these mechanisms are in personam and some are in rem. The significance of the distinction and how it is applied, however, is a useful way into considering different approaches to confiscation and forfeiture: what unites and what separates them, and what the key differences are. The second issue relates to justification.
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