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I'm writing my law dissertation. Just got a first draft back, and one particular issue, which I'd tried to skirt round, has been highlighted for attention.
Feeling pretty lost about how to approach it, with no help from Westlaw and knowing the staff won't give much help now, I thought about who I could discuss it with.
Then it occured to me I could see what you thought:
I have to establish grounds to argue that a civil law remedy is actually punitive.
It's about civil recovery of proceeds of crime (Proceeds of Crime Act 2002). I need to argue recovery is punitive, then everything else falls into place.
But what indicates that something is Punitive rather than Remedial? What's the difference other than the intention behind it?
So far I figure on:
1. Whether the value / amount of money concerned serves to simply remedy damage caused (remedial) or is of a greater amount (punitive)
(The act recovers property obtained through or intended for use in unlawful conduct)
2. Whether the money goes to someone who's suffered a loss or not
(Under the Act, property goes to the 'Assets Recovery Body' (new gvt agency) or the police, but rightful owners of property can apply to get it back)
Any help / thoughts on the matter would be hugely appreciated.
Cheers.
Feeling pretty lost about how to approach it, with no help from Westlaw and knowing the staff won't give much help now, I thought about who I could discuss it with.
Then it occured to me I could see what you thought:
I have to establish grounds to argue that a civil law remedy is actually punitive.
It's about civil recovery of proceeds of crime (Proceeds of Crime Act 2002). I need to argue recovery is punitive, then everything else falls into place.
But what indicates that something is Punitive rather than Remedial? What's the difference other than the intention behind it?
So far I figure on:
1. Whether the value / amount of money concerned serves to simply remedy damage caused (remedial) or is of a greater amount (punitive)
(The act recovers property obtained through or intended for use in unlawful conduct)
2. Whether the money goes to someone who's suffered a loss or not
(Under the Act, property goes to the 'Assets Recovery Body' (new gvt agency) or the police, but rightful owners of property can apply to get it back)
Any help / thoughts on the matter would be hugely appreciated.
Cheers.
Hmm. I think I can make it work. I don't need to put forward a totally convincing case, just make enough ground to justify stating that it might be punitive.
I have a case from the ECHR on a similar issue, but their grounds for a test don't seem entirely applicable. Still, I should be able to draw out enough from the ruling to give a little more support...
Thanks for the help.
I have a case from the ECHR on a similar issue, but their grounds for a test don't seem entirely applicable. Still, I should be able to draw out enough from the ruling to give a little more support...
Thanks for the help.
Dr Duck wrote:
>
> Feeling pretty lost about how to approach it, with no help from
> Westlaw and knowing the staff won't give much help now, I thought
> about who I could discuss it with.
> Then it occured to me I could see what you thought:
M'kay, but I give fair warning; I haven't been in the legal profession since 1999!
>
>
> I have to establish grounds to argue that a civil law remedy is
> actually punitive.
> It's about civil recovery of proceeds of crime (Proceeds of Crime Act
> 2002). I need to argue recovery is punitive, then everything else
> falls into place.
>
> But what indicates that something is Punitive rather than Remedial?
> What's the difference other than the intention behind it?
I don't know the specifics of that act, but you've pretty much hit the nail on the head; the intention defines the type of damages. Is there anything in the act, or cases stemming from the act that refers to punitive measures?
>
>
>
> So far I figure on:
>
> 1. Whether the value / amount of money concerned serves to simply
> remedy damage caused (remedial) or is of a greater amount (punitive)
> (The act recovers property obtained through or intended for use in
> unlawful conduct)
'Intended for use...' That would be a punitive measure. To remedy something, the damage must already have been inflicted. Ergo, to award damages before the event is punitive. Well...that's what I'd argue.
>
> 2. Whether the money goes to someone who's suffered a loss or not
> (Under the Act, property goes to the 'Assets Recovery Body' (new gvt
> agency) or the police, but rightful owners of property can apply to
> get it back)
Hmm...a good parallel for point 2 would be the rather draconian federal laws in America concerning drug dealers, whereby anyone convicted of being a dealer forfeits all of their property, regardless of whether it was acquired through profits from selling drugs. The Assets recovery body sounds like a forerunner to a UK version of that federal act.
>
>
>
> Any help / thoughts on the matter would be hugely appreciated.
> Cheers.
Not at all; I hope I've been of some use. The only other thing I'd say is;
Use as many precedents and references to statute as you can. Whenever you make a point of any kind, use a case, statute, or statutory intstrument to back you up. I'm sure you know that, but I was nearing the end of my 3rd year before I'd figured that out!!
>
> Feeling pretty lost about how to approach it, with no help from
> Westlaw and knowing the staff won't give much help now, I thought
> about who I could discuss it with.
> Then it occured to me I could see what you thought:
M'kay, but I give fair warning; I haven't been in the legal profession since 1999!
>
>
> I have to establish grounds to argue that a civil law remedy is
> actually punitive.
> It's about civil recovery of proceeds of crime (Proceeds of Crime Act
> 2002). I need to argue recovery is punitive, then everything else
> falls into place.
>
> But what indicates that something is Punitive rather than Remedial?
> What's the difference other than the intention behind it?
I don't know the specifics of that act, but you've pretty much hit the nail on the head; the intention defines the type of damages. Is there anything in the act, or cases stemming from the act that refers to punitive measures?
>
>
>
> So far I figure on:
>
> 1. Whether the value / amount of money concerned serves to simply
> remedy damage caused (remedial) or is of a greater amount (punitive)
> (The act recovers property obtained through or intended for use in
> unlawful conduct)
'Intended for use...' That would be a punitive measure. To remedy something, the damage must already have been inflicted. Ergo, to award damages before the event is punitive. Well...that's what I'd argue.
>
> 2. Whether the money goes to someone who's suffered a loss or not
> (Under the Act, property goes to the 'Assets Recovery Body' (new gvt
> agency) or the police, but rightful owners of property can apply to
> get it back)
Hmm...a good parallel for point 2 would be the rather draconian federal laws in America concerning drug dealers, whereby anyone convicted of being a dealer forfeits all of their property, regardless of whether it was acquired through profits from selling drugs. The Assets recovery body sounds like a forerunner to a UK version of that federal act.
>
>
>
> Any help / thoughts on the matter would be hugely appreciated.
> Cheers.
Not at all; I hope I've been of some use. The only other thing I'd say is;
Use as many precedents and references to statute as you can. Whenever you make a point of any kind, use a case, statute, or statutory intstrument to back you up. I'm sure you know that, but I was nearing the end of my 3rd year before I'd figured that out!!
I'm writing my law dissertation. Just got a first draft back, and one particular issue, which I'd tried to skirt round, has been highlighted for attention.
Feeling pretty lost about how to approach it, with no help from Westlaw and knowing the staff won't give much help now, I thought about who I could discuss it with.
Then it occured to me I could see what you thought:
I have to establish grounds to argue that a civil law remedy is actually punitive.
It's about civil recovery of proceeds of crime (Proceeds of Crime Act 2002). I need to argue recovery is punitive, then everything else falls into place.
But what indicates that something is Punitive rather than Remedial? What's the difference other than the intention behind it?
So far I figure on:
1. Whether the value / amount of money concerned serves to simply remedy damage caused (remedial) or is of a greater amount (punitive)
(The act recovers property obtained through or intended for use in unlawful conduct)
2. Whether the money goes to someone who's suffered a loss or not
(Under the Act, property goes to the 'Assets Recovery Body' (new gvt agency) or the police, but rightful owners of property can apply to get it back)
Any help / thoughts on the matter would be hugely appreciated.
Cheers.
Feeling pretty lost about how to approach it, with no help from Westlaw and knowing the staff won't give much help now, I thought about who I could discuss it with.
Then it occured to me I could see what you thought:
I have to establish grounds to argue that a civil law remedy is actually punitive.
It's about civil recovery of proceeds of crime (Proceeds of Crime Act 2002). I need to argue recovery is punitive, then everything else falls into place.
But what indicates that something is Punitive rather than Remedial? What's the difference other than the intention behind it?
So far I figure on:
1. Whether the value / amount of money concerned serves to simply remedy damage caused (remedial) or is of a greater amount (punitive)
(The act recovers property obtained through or intended for use in unlawful conduct)
2. Whether the money goes to someone who's suffered a loss or not
(Under the Act, property goes to the 'Assets Recovery Body' (new gvt agency) or the police, but rightful owners of property can apply to get it back)
Any help / thoughts on the matter would be hugely appreciated.
Cheers.