Other forms of penalty
Criminal gain disgorgement penalties
The Criminal Proceeds (Recovery) Act 2009 contains a civil restraint and forfeiture scheme, based on property and profits derived from “significant criminal activity”. Unlike its predecessor (the Proceeds of Crime Act 1991), there is no need for a conviction for the 2009 Act to kick in. A judge can order forfeiture if s/he is satisfied that the property in question is derived from “significant criminal activity”, regardless of whether the offending has been proved beyond reasonable doubt.
The Act declares proceedings for a whole range of orders to be civil (except for instrument forfeiture orders which require a conviction). Forfeiture orders do not involve imposing a pecuniary penalty, but they can have a significantly punitive effect by depriving someone of their property or assets, despite no criminal offence having been proved. Although the purpose clause of the Act makes no reference to punishment, it has been argued that the scheme is punitive because of the stigma that may attach to a person subject to such an order.
A number of specific Acts also contain criminal disgorgement gain penalties. These are dependent on the defendant first being convicted of a criminal offence. But matters such as whether the gain occurred in the course of committing the offence, and the quantum of the gain, are determined on the civil standard of proof. An example is the Fair Trading Act 1986, in which operating a pyramid selling scheme amounts to an offence and defendants can be ordered to pay a financial gain penalty up to the amount of the financial gain. Under the Resource Management Act 1993, offences relating to the discharge of waste in marine coastal areas may be subject to an additional penalty of up to three times the value of the financial gain made from the offence.