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The Law Commission
(LAW COM No 320)




THE ILLEGALITY DEFENCE




Presented to Parliament pursuant to section 3(2) of the Law
Commissions Act 1965




Ordered by The House of Commons to be printed
16 March 2010




HC 412             London: The Stationery Office   £xx.xx

ii

               THE LAW COMMISSION
The Law Commission was set up by the Law Commissions Act 1965 for the purpose of
promoting the reform of the law.

The Law Commissioners are:
        The Right Honourable Lord Justice Munby, Chairman
        Professor Elizabeth Cooke
        Mr David Hertzell
        Professor Jeremy Horder
        Miss Frances Patterson QC

The Chief Executive of the Law Commission is Mr Mark Ormerod CB.

The Law Commission is located at Steel House, 11 Tothill Street, London SW1H 9LJ.

The terms of this report were agreed on 10 February 2010.

The text of this report is available on the Internet at:
http://www.lawcom.gov.uk/illegal.htm




                                            iii

                           THE LAW COMMISSION

                   THE ILLEGALITY DEFENCE
                                    CONTENTS


                                                                       Paragraph   Page


Summary                                                                               vi

PART 1: INTRODUCTION                                                                   1

     What is the illegality defence?                                         1.1      1
     The main problems with the present law                                  1.2      1
     Previous consultation papers                                            1.8      2
     Responses to the consultative report                                   1.15      4
     Summary of our final recommendations                                   1.17      4
     The need for legislation on illegality in trusts                       1.19      5
     Outline of this report                                                 1.31      7

PART 2: ILLEGALITY AND TRUSTS                                                          8

     A brief summary of the present law                                      2.1       8
     Problems with the present law                                          2.13      11
     Rejected reform options                                                2.16      12
     Our recommended solution - a statutory discretion to apply to a        2.24      14
     limited class of trusts
     How is the discretion to operate?                                      2.55      22
     What should be the consequences of the court's decision?               2.81      28
     How would the discretion interact with other legal rules?             2.103      34
     Commencement and extent                                               2.127      39

PART 3: ILLEGALITY AND OTHER CLAIMS                                                   41

     Introduction                                                            3.1      41
     The illegality defence in contract, tort and unjust enrichment          3.2      41
     Claims to recognise legal property rights                              3.42      51




                                            iv

PART 4: LIST OF RECOMMENDATIONS                   53

APPENDIX A: DRAFT BILL                            57

APPENDIX B: EXPLANATORY NOTES ON THE DRAFT BILL   62

APPENDIX C: IMPACT ASSESSMENT                     73

APPENDIX D: LIST OF CONSULTEES                    87




                                  v

      SUMMARY

      WHAT IS THE ILLEGALITY DEFENCE?
1.3   Where people are involved in illegal conduct, the State may prosecute, or
      confiscate or recover assets. This report is not concerned with issues of criminal
      law or with confiscating or recovering the proceeds of crime. It deals with an
      ancillary issue: where claimants are involved in some form of illegal conduct, how
      far should this prevent them from enforcing their normal legal rights?

1.2   The illegality defence arises when the defendant in a private law action argues
      that the claimant should not be entitled to their normal rights or remedies
      because they have been involved in illegal conduct which is linked to the claim. If
      the courts accept the illegality defence, it often involves granting an unjustified
      windfall to the defendant, who may be equally implicated in the illegality.
      However, if the courts refuse, they may be seen to be helping a claimant who has
      behaved illegally.

1.3   The courts have attempted to set out rules to govern this area. However, the
      rules are complex and confused. This is because of the breadth of circumstances
      in which the issue arises. It may arise in many different areas of law, including
      contract, tort, unjust enrichment, property rights or trusts law. It may involve a
      wide variety of illegal behaviour, from parking offences to serious crime. The
      conduct may be integrally linked to the claim (as where a contract is to carry out a
      crime); or it may be just one of many background facts (as where a speed limit is
      broken in the performance of a contract). The consequences may be borne by
      the wrongdoer personally, or by a third party (such as the wrongdoer's creditors).

1.4   We have reached the conclusion that it is not possible to lay down strict rules
      about when the illegality defence should apply. Instead, the courts should
      consider the policy rationales that underlie the defence and apply them to the
      facts of the case. On the one hand, the courts should attempt to do justice
      between the parties, enforcing the rights set down by law. On the other hand, the
      courts must not permit a claimant to profit from a wrong. They should deter illegal
      conduct and not allow the legal system to be abused by criminals.

      OUR REVIEW
1.5   This final report concludes a long-running review of the illegality defence, which
      has considered how the defence applies to the law of contract, unjust enrichment,
      tort and trusts.1




      1
          See Illegal Transactions: The Effect of Illegality on Contracts and Trusts Law (1999)
          Consultation Paper No 154; and The Illegality Defence in Tort (2001) Law Commission
          Consultation Paper No 160.



                                                vi

 1.6   In our 2009 consultative report we argued that in most areas of law, the courts
       could make the law clearer, more certain and less arbitrary simply by explaining
       the policy reasons that underlie their decisions.2 In contract, tort and unjust
       enrichment cases, we thought that the courts were usually applying the illegality
       doctrine in a fair way to reach the right policy outcome. We said that it was open
       to the courts to develop the law by explaining their reasoning in policy terms.

 1.7   In the area of trusts, however, we thought there was a need for legislative reform.
       We provisionally recommended that the courts should be given a statutory
       discretion to decide the effect of illegality on trusts in at least some cases.

 1.8   Our final recommendations follow the provisional recommendations in our 2009
       consultative report. The recent case law shows that the courts have become
       more open in explaining the policy reasons behind the illegality defence.
       Therefore, in most areas of law, we think that the illegality defence should be left
       to developments in the common law.

 1.9   However, for trusts law we think that there is a need for a short, targeted Bill. This
       report therefore includes a draft Bill to be laid before Parliament.

1.10   Given the width of the subject, we have kept this final report fairly short. Those
       looking for a full account of the law should read our 2009 consultative report.
       Those interested in the social effects of our draft Bill should turn to the impact
       assessment at the back of this report.

       DEVELOPMENTS IN CONTRACT AND TORT LAW
1.11   Since January 2009, the House of Lords has heard two cases involving the
       illegality defence. As we explain in Part 3, they show that the law is developing in
       the way we hoped.

1.12   The first, Gray v Thames Trains,3 looked at the illegality defence in tort. The
       judges rejected the mechanical use of a formal test, such as whether a party
       must "rely" on the illegality. As Lord Hoffmann explained, the illegality defence is
       based upon a group of policy reasons, which vary in different situations. In each
       case, the policy reasons must be considered against the facts of the case to
       reach a fair outcome.

1.13   The second case, Stone & Rolls v Moore Stephens,4 concerned the illegality
       defence in both tort and contract. Again, Lord Phillips stressed that it is necessary
       to look at the policy underlying the illegality defence.

1.14   Two subsequent High Court decisions, Nayyar v Denton Wilde Sapte5 and K/S
       Lincoln v CB Richard Ellis Hotels Ltd,6 have applied this reasoning. They seem to
       indicate that incremental change is taking place, as we hoped.

       2
           The Illegality Defence (2009), Consultation Paper No 189.
       3
           [2008] EWCA Civ 713, [2009] 2 WLR 351.
       4
           [2008] EWCA Civ 644, [2008] 3 WLR 1146.
       5
           [2009] EWHC 3218.
       6
           [2009] EWHC 2344.



                                                 vii

       THE ILLEGALITY DEFENCE IN TRUSTS

       Background
1.15   Calls for law reform arose out of the 1994 House of Lords" decision, Tinsley v
       Milligan.7 Here a lesbian couple bought a house together using joint money.
       However, they registered it in the name of only one of them so that the other
       could claim social security benefits to which she was not entitled.

1.16   When the couple fell out, the registered owner (Ms Tinsley) sought to evict her
       former partner (Ms Milligan) from the house. Ms Milligan counterclaimed, on the
       basis that she had contributed half of the purchase money, and was therefore
       entitled to half the house. In legal terms, she argued that she was entitled to a
       beneficial interest under a "resulting trust". Ms Tinsley countered that Ms Milligan
       was not entitled to ask the court to help her enforce the trust because she had
       behaved illegally.

1.17   The House of Lords held that the so-called "reliance principle" applied: Ms
       Milligan won, because she could prove her interest in the property without
       needing to "rely" on her illegal conduct. The outcome of the case depended on
       the legal starting point or "presumption" applied by trust law. In this case, once
       Ms Milligan had shown that she contributed towards the purchase price, the law
       "presumed" a resulting trust.

1.18   However, if the relationship had been different, the courts may have been forced
       to reach the opposite conclusion. For example, if a father had given money to a
       daughter, the "presumption of advancement" would apply. This archaic and
       discriminatory 19th century rule presumes that if a man gives money to his
       fiancée, wife or children, he intends to make a gift. The "reliance principle" means
       that a father could not rely on evidence of his true intention to keep ownership of
       the property where this was based on an illegal motive. However, a mother in the
       same circumstances would be given her property back.

       Problems with the law
1.19   In Tinsley v Milligan, the court was clearly reluctant to deprive Ms Milligan of her
       interest. As Lord Goff pointed out, it seemed harsh to deprive her of her life
       savings for a relatively minor fraud. Equally, it seemed wrong to give an
       unjustified windfall to Ms Tinsley who was implicated in the same fraud. Thus in
       standard cases, the courts tend to ignore the effect of any illegality.

1.20   However, two criticisms are made of this:

       (1)   In some cases the courts may be required to enforce the trusts, despite
             very serious illegality.

       (2)   In a few arbitrary cases, the claimant trying to enforce a beneficial interest
             will lose, even though the illegality is minor. The result depends not on the
             merits of the case, but on obscure legal presumptions, which are often
             outdated and may be discriminatory. Under human rights law, if people are
             to be deprived of valuable property rights, the law should be clear,
             proportionate, and justifiable.




                                            viii

1.21   There are other uncertainties. For example, in some cases, claimants are allowed
       their money back if they withdraw from the trust arrangement before the illegal
       purpose has been carried out. However, the scope of this is unclear.

       Abolishing the presumption of advancement
1.22   In 2006, we considered whether the law could be made fairer simply by
       abolishing the presumption of advancement. However, we concluded that this
       would not solve all the problems.

1.23   In 2007 a House of Lords decision, Stack v Dowden,8 introduced further
       uncertainty into the law. The case appears to overturn the presumption that
       property is held on trust in the proportions to which the parties contributed
       towards the purchase money. Instead, in cases involving a family home, the
       starting point is that the property is owned by the registered owner. The non-
       owner is therefore required to produce evidence that the parties intended this to
       be different, so as to prove a "constructive trust".

1.24   It is difficult to tell what effect this will have where cohabitants have placed the
       property in one of their names for an illegal purpose. It seems that the claimant
       may lead some evidence of a common intention to own property jointly, but not
       the most direct evidence, if this is associated with the illegality. As a result, the
       law is uncertain and complex, and is likely to lead to arbitrary results. Some
       claimants will win and some will lose, depending on how far any given
       conversation or action reveals the illegal intention of the parties.

       The social context of trust disputes
1.25   In Tinsley v Milligan the issue arose in the context of the breakdown of a
       cohabiting relationship. Cohabitants are the group most likely to be affected by
       our recommendations.

1.26   In the case of married couples or civil partners, the court has a general discretion
       to transfer property as it thinks is fair. It does not have this discretion for
       cohabitants. Instead, unmarried couples are forced to rely on the complexities of
       trust law. In our impact assessment, we estimate that around 450,000 couples in
       England and Wales buy property together but place the property into the sole
       name of one partner. In the event of the dispute, it is then up to the party who is
       not the registered owner to argue that they have a beneficial interest. This may
       be on the basis of their contribution to the purchase price (a resulting trust) or a
       common intention to own the property together (a constructive trust).

1.27   However, disputes over trusts of this sort also arise in other contexts, whenever
       family members, friends or business partners own property together.




       7
           [1994] 1 AC 340.
       8
           [2007] UKHL 17, [2007] 2 AC 432.



                                              ix

1.28   There is wide potential for constructive or resulting trusts to raise issues of
       illegality, although the actual number of cases taken to court each year is low.
       The parties may attempt to hide assets from creditors, or potential creditors, or
       from an ex-spouse. People may also use trust arrangements to evade tax or to
       claim state benefits to which they are not entitled.

       Our recommendations
1.29   This report includes a seven-clause draft Bill to reform the law on illegality in
       trusts. This is a limited, targeted reform. The Bill would apply where a trust has
       been created or continued to conceal the beneficiary's interest for a criminal
       purpose. These are the circumstances in which it is easiest to abuse the trust
       mechanism.

1.30   We recommend that in most cases a beneficiary would be able to rely on their
       normal legal rights. However, in "exceptional circumstances" the court would
       have a discretion to deny the beneficiary their normal right to enforce the trust.

1.31   The draft Bill sets out a list of factors that the courts may take into account,
       including the conduct of the parties; the value of the interest at stake; whether
       refusing the claim would act as a deterrent; and the interests of third parties.

1.32   Where the court decides that the beneficiary should not receive the property, the
       court will then have to decide to whom the interest belongs. In a simple case,
       involving a claimant beneficial owner and a defendant legal owner, we
       recommend that the beneficial interest should be transferred to the legal owner.
       In more complex cases we recommend that the court should be given a power to
       decide whether the property should belong to the trustee, the settlor or another
       beneficiary under the trust.

1.33   It is important that the draft Bill should not prejudice the powers of the State to
       confiscate the proceeds of crime. The draft Bill therefore includes a small
       amendment to the Proceeds of Crime Act 2002. This is designed to ensure that
       even if the court exercises its discretion to allow a trustee or other party to keep
       the property, the property can still be recovered by the State.




                                             x

      THE LAW COMMISSION

      THE ILLEGALITY DEFENCE
      To the Right Honourable Jack Straw MP, Lord Chancellor and Secretary of State for Justice


      PART 1
      INTRODUCTION

      WHAT IS THE ILLEGALITY DEFENCE?
1.1   In this report we consider what happens when the claimant in a civil action has
      been involved in criminal activity that is in some way connected to the claim. In
      such cases the defendant may argue that the claim should not succeed because
      of the claimant's criminal conduct or intentions. This argument, known as "the
      illegality defence", can be raised in relation to a wide variety of cases. One
      example is where an employee seeks compensation for unfair dismissal and the
      employer argues that the claim should not be allowed because the employee has
      accepted wages "cash in hand" rather than through the PAYE system.1 Another
      example is where a claimant seeks damages for personal injury inflicted by the
      defendant and the defendant argues that the claim should be denied because the
      claimant was committing an offence at the time the injury occurred.2

      THE MAIN PROBLEMS WITH THE PRESENT LAW
1.2   This area of law purports to be governed by strict rules, which often appear
      arbitrary. Very early on, the case law established that the illegality doctrine is not
      there to find a just resolution to the dispute between the claimant and the
      defendant; rather it is based on "general principles of policy" that might arbitrarily
      apply to the advantage of the defendant.3 As the Chancery Bar Association noted
      in its response to our 2009 consultative report, "the result is a forensic lottery
      depending on the accidents of litigation or the manoeuvrings of the parties".

1.3   Yet illegality may affect a civil claim in numerous ways. The illegality may be
      deliberate and serious, or it may be accidental and technical in nature. It may be
      inextricably linked to the circumstances that give rise to the claim, or it may be
      fairly incidental. The parties may be equally guilty, or one may be more
      responsible than the other. To date, the common law rules have found it difficult
      to cope with such a variety of circumstances.
      1
          In Hall v Woolston Hall Leisure [2001] 1 WLR 225 the Court of Appeal reviewed the case
          law on the unlawful performance of employment contracts.
      2
          For example, Cross v Kirkby The Times, 5 April 2000. The claimant, a hunt saboteur,
          attacked the defendant with a baseball bat. The defendant wrestled the bat from him and,
          in the ensuing fracas, hit him with considerable force.
      3
          Many cases refer back to a defining statement made by Lord Mansfield in Holman v
          Johnson (1775) 1 Cowp 341, 343; 98 ER 1120, 1121: "The objection, that a contract is
          immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the
          mouth of the defendant. It is not for his sake, however, that the objection is ever allowed;
          but it is founded in general principles of policy, which the defendant has the advantage of,
          contrary to the real justice, as between him and the plaintiff".




                                                  1

1.4   In several areas of the law, such as the protection of legal and equitable property
      rights, the illegality doctrine has been interpreted as essentially a question of
      procedure. The issue is governed by the so-called "reliance principle". If the
      claimant needs to "rely on" or bring evidence relating to the illegality in order to
      prove his or her claim, then the claim will fail. However, if the claimant can make
      out the case without relying on such evidence, then regardless of the substantive
      involvement of any serious illegality, the claim can succeed.

1.5   In order to avoid reaching unjust results, the courts have developed various
      exceptions to the basic principle. We described these in detail in our 2009
      consultative report. The result is a body of case law that is complicated and
      uncertain and which lacks transparency.

1.6   We think that, in most areas of law, legislative intervention is not required to solve
      these problems. It is open to the courts to make the law more transparent and
      less apparently arbitrary by doing more to articulate the policy rationales that
      underlie their decisions.

1.7   However, in the area of trusts, we have concluded that legislation is required.
      Here the reliance principle is deeply embedded. It produces complex and
      arbitrary results, depending on the detailed intricacies of trust law.

      PREVIOUS CONSULTATION PAPERS
1.8   We have already published three papers in relation to the illegality defence. In
      1999 we published our first consultation paper, Illegal Transactions: The Effect of
      Illegality on Contracts and Trusts4 ("CP 154"). In 2001 we published our second
      consultation paper, The Illegality Defence in Tort5 ("CP 160").

1.9   In all areas we provisionally proposed legislative reform to give the courts a
      statutory discretion to decide whether the illegality defence should succeed. The
      discretion would have been structured to point the court towards the factors that it
      should take into account. These included the seriousness of the illegality
      involved, the deterrent effect of any decision, and whether allowing the claim
      would further or hinder the illegal purpose involved. Our provisional proposals
      were generally well received by those who responded to the papers.6 However, a
      minority gave us detailed critical and persuasive comments that ultimately led us
      to revise our views as to the best method of reform in relation to claims outside
      the trusts area.




      4
          Law Commission Consultation Paper No 154, BAILII: [1999] EWLC C154  5 Law Commission Consultation Paper No 160, BAILII: [2001] EWLC C160.
      6
          We received nearly 100 responses in total from academics, solicitors, barristers and
          judges, and from various institutions and organisations.




                                                 2

1.10   In January 2009 we published a consultative report, The Illegality Defence7 ("CP
       189"). In this paper we outlined our new provisional recommendations in relation
       to the illegality defence as it applies in contract, tort and unjust enrichment. It is
       unusual for the Law Commission to publish a further consultation paper before
       reaching its final recommendations. However, this project has proved to be
       difficult and we felt that we should consult further, given the length of time since
       the publication of our original consultation papers and the new non-statutory
       approach that we were considering.

1.11   In our 2009 consultative report we provisionally recommended that the illegality
       defence did not need legislative reform as it applied to claims for breach of
       contract, unjust enrichment, tort or legal property rights. In all these areas we
       recommended that any improvements which were needed would be better made
       through case law developments. We explained that there were two main reasons
       for our change in thinking. First, we found that it was difficult to draft a broad
       statutory scheme without introducing new uncertainties into the law. These
       problems could probably have been resolved. However, secondly and more
       importantly, developments in the case law and the critical responses that we
       received to the two consultation papers led us to conclude that it was open to the
       courts to develop the law in ways that would render it considerably clearer, more
       certain and less arbitrary.8

1.12   We also published the consultative report in the knowledge that the House of
       Lords would imminently have the opportunity to consider the illegality defence in
       two cases that were due for hearing in early 2009, Stone & Rolls v Moore
       Stephens9 and Gray v Thames Trains.10 These two cases provided their
       Lordships with an opportunity to consider the illegality defence in tort and contract
       for the first time in many years. We hoped that they might find the research and
       consultation that we had undertaken useful in their deliberations.

1.13   We consider the judgments of the House of Lords in more detail in Part 3. In
       deciding whether the illegality defence should succeed, their Lordships looked at
       the policy reasons that lay behind the existence of the defence in order to
       determine whether those policies applied to the facts. This is exactly the
       approach we suggested would be most helpful.




       7
            Law Commission Consultation Paper No 189, BAILII: [1990] EWLC 189  8 CP 189, paras 1.12 to 1.15.
       9
            The Court of Appeal judgment is at [2008] EWCA Civ 644, [2008] 3 WLR 1146.
       10
            The Court of Appeal judgment is at [2008] EWCA Civ 73, [2009] 2 WLR 351.




                                                 3

1.14   However, there was one area where the consultative report did provisionally
       recommend legislative reform. This was in relation to the illegality defence as it
       applies to trusts. Here, there is a House of Lords" decision, Tinsley v Milligan,11
       which lays down the exact way in which the illegality defence should operate
       where the claimant is seeking to enforce an equitable interest under a trust. The
       ramifications of this decision have been much criticised, but lower courts are of
       course bound by it. We therefore provisionally recommended legislative reform in
       the area of trusts to give the courts a discretion to determine whether the illegality
       defence should succeed in such cases.

       RESPONSES TO THE CONSULTATIVE REPORT
1.15   We received 21 responses to our 2009 consultative report. Nearly everyone who
       commented in relation to trusts agreed that legislative reform of the illegality
       defence was necessary for the reasons that we identified. The majority agreed
       that such reform should be by way of a statutory discretion, although a number
       pointed out that it would be difficult to draft and could lead to unwelcome
       uncertainty. As discussed in Part 2, our draft Bill is limited in its scope. It would
       only apply where a trust has been created or continued to conceal the
       beneficiary's interest for a criminal purpose. Furthermore, the court would only
       have a power to prevent enforcement in exceptional circumstances, bearing in
       mind the factors set out in the Bill. These limitations are designed to address the
       concerns raised.

1.16   There was less consensus in other areas. Opinion was divided over whether
       developments outside the trusts area were best left to the common law or
       whether statutory reform was preferable. While a majority supported our
       recommendation that the common law should be left to develop in these areas, a
       few respondents thought that this approach would not go far enough. In
       particular, they argued for the introduction of a partial illegality defence with
       proportionate remedies, rather than the "all or nothing" present approach. This
       was an approach which we considered, but did not favour, in our 1999
       consultation paper. It was not supported by many consultees, who agreed with us
       that it would result in too much uncertainty and "palm tree" justice.

       SUMMARY OF OUR FINAL RECOMMENDATIONS
1.17   We recommend that legislative reform is needed to provide the courts with a
       discretion to decide the effect of illegality on a limited class of trust. The statutory
       discretion should apply when the trust arrangement is created in order to conceal
       the beneficiary's interest in the trust property in connection with a criminal
       purpose.

1.18   We recommend that no legislative reform is needed in relation to the illegality
       defence as it applies to claims other than those arising under a trust.




       11
            [1994] 1 AC 340.




                                               4

       THE NEED FOR LEGISLATION ON ILLEGALITY IN TRUSTS
1.19   This report includes a short, targeted seven-clause draft Bill to reform the law on
       illegality in trusts. We hope this will make the law clearer, fairer and more
       transparent, and discourage the use of trusts to commit fraud or other crimes. If
       the law is to deprive a claimant of valuable property because of illegal conduct, it
       is particularly important that the law is clear from the outset, proportionate, and
       justifiable. The deprivation must be shown to be for relevant and sufficient
       reasons.

       The social significance of trust disputes
1.20   The issue of illegal trusts typically arises between cohabiting couples who own a
       home. As we explain in the accompanying impact assessment, it is common for
       cohabitants to buy a home together but place the property into the sole name of
       one partner. We estimate that there are over 450,000 couples in England and
       Wales in that position.

1.21   If the relationship breaks down, the court has no general discretion to transfer
       property, as it does on divorce or on the breakup of a civil partnership. Instead,
       any property disputes are treated as matters of trust law. Where the property is in
       the name of only one partner, the other party may claim a beneficial interest in
       the home on the grounds that there was a common intention to own the home
       jointly, or that he or she made a contribution towards the purchase price or
       mortgage payments. Even where the house is jointly owned, it is possible for the
       parties to use the mechanism of a resulting trust to argue that the shares in the
       home should not be divided equally.

1.22   However, disputes over constructive or resulting trusts are not confined to
       cohabitants. Research shows that they may arise in the context of any family
       relationship, or where business partners or friends own property together.12

1.23   There is wide potential for constructive or resulting trusts to be used for a criminal
       purpose. The parties may attempt to hide assets from creditors or potential
       creditors, or from an ex-spouse. For example, one partner may put property in
       the other partner's name because they are engaged in a risky business venture
       and are concerned about possible bankruptcy. People may also attempt to evade
       tax or claim state benefits to which they are not entitled. A parent, for example,
       may put property in the name of their child to evade inheritance tax, even though
       the parent intends that the child should give the property back if the parent needs
       it.13




       12
            T Goriely and P Das Gupta, Breaking the Code: the impact of legal aid reforms on general
            civil litigation (2001), Institute of Advanced Legal Studies.
       13
            At one stage, there was some doubt about whether all these purposes amounted to
            crimes. However, the law has been strengthened and simplified by the Fraud Act 2006,
            and we think all these examples would amount to a criminal offence. Under section 3, for
            example, it is an offence to dishonestly fail to disclose information which you are under a
            legal duty to disclose, if you intend to cause a gain for yourself or loss to another. This
            would cover a case in which a man dishonestly concealed assets from an ex-wife.




                                                    5

1.24   In the impact assessment we explain that the number of trust disputes taken to
       court is low. Research shows that cohabitants are often ignorant of the law,
       confused by legal terminology and fearful of legal costs.14 Despite the potential
       significance of illegality in trusts, only a few cases are brought to court each year.

       Problems with the law
1.25   In 1994, the House of Lords established that a claimant could enforce an illegal
       trust, provided that the claimant was not required to rely on their own illegal
       behaviour.15 In most cases the law presumed that the property was held on trust
       in the proportions to which the parties had contributed towards the purchase
       money. Thus a claimant only needed to show a contribution towards the
       purchase price. At this point, the law would presume that the claimant had an
       enforceable interest, and the claimant would not need to rely on an illegal motive.
       This meant that in most cases the courts would effectively ignore illegal
       behaviour, though there were a few arbitrary exceptions to this rule.

1.26   The law was subject to two criticisms:

            (1)    In some cases the courts were required to enforce the trusts, despite
                   serious criminality. In 1994, Lord Goff highlighted that the protection
                   given to minor fraudsters would also protect terrorists or armed robbers.
                   He therefore called for the Law Commission to review the law.16

            (2)    In a few arbitrary cases, the trust was not enforced and the claimant lost,
                   even though the illegality was minor. The most obvious example was
                   when a man gave property to his son or daughter. Here the courts
                   applied the archaic and discriminatory "presumption of advancement".
                   The law did not allow him to lead evidence of his true (but illegal)
                   intention, namely that the money should be handed back once the
                   creditors had been defeated.

1.27   In 2006, we considered whether this second problem would be solved simply by
       abolishing the presumption of advancement.17 However, in 2007, the House of
       Lords introduced further uncertainty into the law. The case of Stack v Dowden
       appears to overturn the presumption that property is held on trust in the
       proportions to which the parties contributed towards the purchase money.18
       Instead, in cases involving a family home, the starting point appears to be that
       the property is owned by the registered owner. The non-owner is therefore
       required to produce evidence that the parties intended this to be different.



       14
             G Douglas, J Pearce and H Woodward, "A Failure of Trust: Resolving Property Disputes
             on Cohabitation Breakdown" (2007); study conducted jointly by Cardiff University and the
             University of Bristol.
       15
             Tinsley v Milligan [1994] 1 AC 340.
       16
             Above, at 362.
       17
             See short paper, The Presumption of Advancement: does it have any effect in practice?
             December 2006, available at http://www.lawcom.gov.uk/illegal.htm.
       18
             [2007] UKHL 17, [2007] 2 AC 432.




                                                    6

1.28   The implications of Stack v Dowden for the illegality defence are unclear. In our
       2009 consultative report we considered its effect where cohabitants intend to own
       property jointly, but have placed it in one person's name for an illegal purpose, for
       example to conceal it from an ex-spouse. It seems that the claimant may lead
       some evidence of a common intention, but not the most direct evidence, which
       reveals the true reason behind the parties" actions. The law is uncertain and
       complex, and may lead to arbitrary results.

       The new statutory discretion
1.29   In a trust, the person who does not appear to be the legal owner of property may
       claim the benefits of ownership. The trust mechanism therefore provides a
       vehicle for fraudulent behaviour because it offers a unique opportunity to conceal
       the true ownership of the property for criminal purposes. It is therefore important
       that the law should be seen to deter those who may take advantage of this
       opportunity.

1.30   Our draft Bill would apply where a trust has been created or continued to conceal
       the beneficiary's interest for a criminal purpose. We recommend that in most
       cases a beneficiary would be able to rely on their normal legal rights. However, in
       "exceptional circumstances" the court would have discretion to deny the
       beneficiary their normal right to enforce the trust, bearing in mind the factors set
       out in the Bill.

       OUTLINE OF THIS REPORT
1.31   The report is divided into a further three parts:

        (1)    Part 2 contains our recommendations in relation to the illegality defence
               as it applies to claims arising under a trust.

        (2)    Part 3 contains our recommendations in relation to the illegality defence
               as it applies to claims other than those arising under a trust.

        (3)    Part 4 contains a summary of our recommendations.

1.32   Appendix A contains a draft Bill which would implement our recommendations.
       Explanatory notes on the draft Bill are provided at Appendix B.

1.33   Appendix C contains an impact assessment, showing the costs and benefits of
       our draft Bill.

1.34   Finally, Appendix D lists those who responded to the 2009 consultative report.
       We are very grateful to those who took the time and trouble to give us their
       comments. We have found these very helpful in formulating our final policy.




                                              7

      PART 2
      ILLEGALITY AND TRUSTS

      A BRIEF SUMMARY OF THE PRESENT LAW
2.1   In our 2009 consultative report, we set out a detailed account of the present law
      on illegality and trusts.1 There have been a few relevant cases reported since
      then,2 but the legal principles remain the same. To avoid unnecessary repetition,
      here we give only a brief outline of the legal rules and then explain the problems
      that they cause.

      1. The reliance principle
2.2   In Tinsley v Milligan,3 the House of Lords held that for the purposes of
      determining the effect of any illegality, equitable interests were to be treated in
      the same way as legal interests.4 This means that the so-called "reliance
      principle" applies. Under this principle, the claimant is able to enforce his or her
      equitable interest notwithstanding any illegality in the arrangement, provided that
      the claimant does not need to plead or lead evidence of the illegality to prove the
      interest. How this principle works in practice can be shown by two straightforward
      examples.

             Example 1: Mr A transfers some business assets to a friend, Mr B.
             Mr B agrees to hold the assets for Mr A and return them to him when
             requested. The purpose of the arrangement is to hide the assets from
             Mr A's creditors. Once the creditors have left empty-handed Mr A
             asks for the assets back. Mr B refuses to return them, arguing that
             because of the illegal purpose of the arrangement, the trust in Mr A"s
             favour is unenforceable. However, the law presumes that when Mr A
             transferred the assets to Mr B for no consideration, a resulting trust
             arose in Mr A's favour. Mr A can therefore establish this trust by
             relying on the presumption without any need to plead or lead
             evidence of the illegality involved. Under the reliance principle Mr A
             will succeed and the illegality has no effect.




      1
          CP 189, Part 6.
      2
          For example, Bales v Porritt [2008] EWHC 2188.
      3
          [1994] 1 AC 340.
      4
          "If the law is that a party is entitled to enforce a property right acquired under an illegal
          transaction, in my judgment the same rule ought to apply to any property right so acquired,
          whether such right is legal or equitable": Lord Browne-Wilkinson in his leading judgment in
          Tinsley v Milligan [1994] 1 AC 340, 371.



                                                  8

              Example 2: Now suppose that Mr A transferred the assets not to a
              friend but to his wife, Mrs A. Because the transfer is from husband to
              wife, the law presumes that Mr A intended to make a gift. Generally
              Mr A would be able to lead evidence of the arrangement which he
              and Mrs A entered into, in order to rebut this presumption of
              advancement and show that his intention was to create a trust in his
              favour. However, this would involve leading evidence of the illegal
              purpose of his scheme. Under the reliance principle Mr A is not
              permitted to do this and his claim against his wife will fail.

2.3   Many of the cases concerning the reliance principle involve resulting trusts.
      However, it is clear that the reliance principle is used to determine the effect of
      illegality whatever type of trust is in issue. For example, in Collier v Collier,5 the
      claimant was not able to rely on any presumption of resulting trust in his favour
      because his daughter to whom he had transferred two business properties had,
      at least ostensibly, provided consideration.6 He therefore argued that his
      daughter held the properties on express trust for him, pursuant to their agreement
      that they had been transferred into her name only to hide them from potential
      creditors and that she was to hold them on his behalf. The Court of Appeal used
      the reliance principle to hold that the claimant could not prove the express trust in
      his favour. 7 In order to prove the express trust he would have to lead evidence of
      their illegal scheme and this was not permitted.

2.4   The reliance principle has also been used in cases involving constructive trusts.8
      Following the House of Lords" decision in Stack v Dowden,9 it is clear that the
      common intention constructive trust will in future play a greater role in
      determining disputes over equitable interests in the home. What is less clear is
      how the reliance principle will operate in this context. The House of Lords held
      that where a couple were joint legal owners of their home, the presumptions of
      resulting trust and advancement should not be used. Rather, the starting point
      should be that equity follows the law. A claimant attempting to prove otherwise
      must do so by establishing a common intention constructive trust, discerned from
      "the parties" shared intentions, actual, inferred or imputed, with respect to the
      property in the light of their whole course of conduct in relation to it."10 Whether
      the court's examination of the "whole course of conduct" will allow a party to lead
      evidence of illegal behaviour has not yet been determined.




      5
           [2002] EWCA Civ 1095, [2002] BPIR 1057.
      6
           This was the view taken by Aldous and Chadwick LJJ. By contrast, Mance LJ was of the
           view that since the consideration was a sham, the presumption of advancement would
           apply.
      7
           The judgments of the Court of Appeal refer to the alleged trust as an "express trust",
           although given that there was no writing evidencing the trust as required by section
           53(1)(b) of the Law of Property Act 1925, the trust could only be enforceable under the
           equitable doctrine which prevents a statute from being used as an instrument of fraud.
           Such a trust may alternatively be described as a "constructive trust".
      8
           For example, Barrett v Barrett [2008] EWHC 1061 (Ch), [2008] 2 P & CR 17.
      9
           [2007] UKHL 17, [2007] 2 AC 432.
      10
           [2007] UKHL 17, [2007] 2 AC 432 at [60].



                                                   9

      2. The withdrawal exception
2.5   There is one general exception to the application of the reliance principle. In Tribe
      v Tribe,11 the Court of Appeal held that where the claimant was seeking to
      withdraw from the arrangement before the illegal purpose had been wholly or
      partly accomplished, then reliance on the illegality was allowed.

2.6   So, in Example 2 (in paragraph 2.2 above), the outcome would be different if Mr
      A had not yet actually deceived anyone as to his available assets. In that case,
      Mr A would be able to rebut the presumption that he had given the assets to his
      wife by pleading their illegal scheme to defraud the creditors.

2.7   There is some uncertainty as to the exact scope of the withdrawal exception. The
      case law makes it clear that true repentance of the illegal scheme is not required,
      and it is sufficient that the scheme was simply not needed. However, judicial
      statements suggest that forced withdrawal as a result of the discovery of the
      illegal scheme is not sufficient.12 It is unclear how far it is possible to go before
      withdrawal is no longer allowed. Non-binding commentary in Q v Q13 suggests
      that the illegal purpose should be broadly defined and that as soon as any steps
      have been taken towards its accomplishment over and beyond the creation of
      authentic-looking documents kept within the family, then withdrawal is no longer
      allowed.

      3. Consequences that follow from the application of the reliance principle
2.8   Where a claimant is unable to enforce his or her equitable interest because of the
      application of the reliance principle, it is not clear whether this results in a
      substantive or merely procedural bar. The case law suggests that the trust still
      notionally exists, but the beneficiary is under some sort of personal disentitlement
      and therefore unable to enforce it.14

2.9   This leaves open two important questions. First, is it possible for an innocent
      party, often the victim of the arrangement, to claim through the barred
      beneficiary? In one case,15 the Court of Appeal assumed that an executor could
      be in no better position than the deceased beneficiary. However, in a subsequent
      case,16 one Court of Appeal judge suggested that a creditor might be able to
      enforce its interest in the trust property even though the debtor/beneficiary could
      not.




      11
           [1996] Ch 107.
      12
           Tribe v Tribe [1996] Ch 107, 135, by Millett LJ.
      13
           [2008] EWHC 1874 (Fam), [2009] 1 FLR 935.
      14
           See, in particular, the comments of Lord Browne-Wilkinson in Tinsley v Milligan
           [1994] 1 AC 340, 374: "The effect of illegality is not to prevent a proprietary interest 
           in equity from arising or to produce a forfeiture of such a right: the effect is to 
           render the equitable interest unenforceable in certain circumstances. The effect of 
           illegality is not substantive but procedural."
      15
           Silverwood v Silverwood (1997) 74 P & CR 453.
      16
           Collier v Collier [2002] EWCA Civ 1095, at [111].



                                                     10

2.10   The House of Lords recently considered this issue in Stone & Rolls v Moore
       Stephens,17 though not in relation to a trust. In this case, the claimant company
       which had been used as a vehicle to commit fraud was insolvent, meaning that
       any damages recovered would in fact go to the innocent creditors. It was argued
       that even if the claim would ordinarily be barred by illegality, it should succeed on
       this basis. Their Lordships rejected this argument on the ground that the duty the
       defendants owed to the claimant company did not extend to creditors. Allowing
       the claim to succeed would be the equivalent of extending the duty, which the
       majority of judges thought would be wrong.18

2.11   It would seem therefore that in tort (and in concurrent contract) claims creditors
       are unlikely to be in a better position than a claimant unless a defendant owes a
       duty to them directly. However in the area of trusts where the existence of the
       claim does not depend on a duty of care, the outcome could still be different,
       notwithstanding the reasoning in Stone & Rolls.

2.12   Further, if the intended beneficiary is not entitled to enforce the trust, what is the
       position of the trustee? There has been little discussion of this point, but several
       cases assume that the trustee effectively holds the trust property for him or
       herself beneficially.19

       PROBLEMS WITH THE PRESENT LAW

       1. Arbitrariness
2.13   A major problem with the reliance principle is its arbitrariness. Whether or not the
       illegality has any effect on the recognition or enforcement of the trust does not
       depend on the merits of the parties or the policies that underlie the illegality
       defence. The outcome of the case will turn solely on the procedural issue of
       whether any legal presumption is in play and how closely the illegality is tied up
       with any evidence that the parties may wish to rely on. The effect of applying the
       reliance principle to cases involving the presumption of advancement has been to
       give that presumption an overriding importance that it was never intended to
       have. For many years the presumption has been regarded as anachronistic and,
       apart from cases involving illegality, little notice has been paid to it.20

       2. Uncertainty
2.14   We have already highlighted several areas in which the application of the reliance
       principle and withdrawal exception is unclear. In addition, there is much confusion
       over exactly what amounts to "reliance", particularly when the claimant is seeking
       to establish an equitable interest under a constructive trust. How closely
       connected to his or her evidence can any illegality be, before the reliance
       principle makes it inadmissible?



       17
            [2009] UKHL 39, [2009] 1 AC 1391.
       18
            See for example Lord Phillips, Stone & Rolls v Moore Stephens [2009] UKHL 39 at [85].
       19
            For example, Barrett v Barrett [2008] EWHC 1061, [2008] 2 P & CR 17 at [28] and Q v Q
            [2008] EWHC 1874 (Fam), [2009] 1 FLR 935 at [139].
       20
            See, for example, the comments of Lord Diplock in Pettitt v Pettit [1970] AC 777, 824.



                                                   11

       3. Potential injustice
2.15   Because of its arbitrary operation, the reliance principle has the potential to force
       the courts into unjust decisions. We consider that whether or not illegality has any
       effect on a case should be determined by reference to the policies that justify the
       existence of the defence. This will allow the court to take into account such
       matters as the conduct of the parties, the seriousness of the illegality involved
       and the value of the interest at stake. By focusing solely on procedural matters,
       the reliance principle does not permit these issues any relevance.

       REJECTED REFORM OPTIONS
2.16   In our 2009 consultative report21 we explained that we had considered, but
       subsequently rejected, various options for reform. These included:

            (1)   Abolishing the illegality defence in relation to trusts.

            (2)   Abolishing the presumption of advancement.

            (3)   Introducing a broad statutory discretion that would apply to determine the
                  effect of illegality on all trusts.

       Although we accept that strong arguments can be put forward for abolishing the
       illegality defence in relation to the recognition of equitable interests, this is not
       ultimately a view which we endorse. We think that the policy issues that underlie
       the illegality defence may come into play in relation to trusts as much as they do
       in any other area, and should not be completely ignored. There was little support
       from respondents to either our 1999 or 2009 consultations for the complete
       abolition of the illegality defence.

2.17   We were at one stage attracted to the argument that many of the problems in this
       area could be solved by the abolition of the presumption of advancement. It is the
       interaction of the reliance principle with the presumption of advancement that
       causes much of the arbitrariness of the present rules and which has attracted
       much of the criticism. The Government is already committed to its abolition
       because of its discriminatory treatment of husbands and wives.22 We understand
       that legislation is likely in this area.23




       21
             CP 189 at paras 6.89 to 6.101.
       22
             The Government accepts that legislation is needed to amend or abolish the presumption of
             advancement before the Government can carry out its stated commitment to ratify Article 5
             of Protocol 7 of the European Convention of Human Rights: Written Answer, Hansard (HL)
             21 April 1988, vol 588, col 197W.
       23
             An amendment to the Equality Bill 2009 to abolish the presumption of advancement has
             been tabled for debate at the Committee stage in the House of Lords.



                                                   12

2.18   However, following Stack v Dowden, we no longer consider that this is the best
       approach. It is now clear that, where a family home is jointly owned at law, the
       courts will presume that it is jointly owned in equity too.24 A party who wishes to
       prove otherwise must establish a constructive trust in his or her favour. In such
       cases, neither party may rely on a resulting trust and abolishing the presumption
       of advancement will not have any impact.

2.19   In our 1999 consultation paper we provisionally proposed that the reliance
       principle should be abolished and replaced with a broad statutory discretion that
       would apply to all trusts tainted by illegality. Although most respondents
       supported replacing the reliance principle with a statutory discretion, several
       commented that our proposals would introduce a larger degree of uncertainty
       than was acceptable in relation to property rights. Many trusts may involve some
       connection with illegality in their formation, performance or purpose, which under
       the present law would not affect the trust's validity or enforcement.

2.20   Under our 1999 proposals, for example, the discretion would not be confined to
       criminal conduct. It would apply to any trust created to facilitate any legal wrong,
       or which was otherwise contrary to public policy. We considered what should
       happen where, for example, a testator left money under a will subject to a
       condition that was unlawful or contrary to public policy.25 In these cases, the
       courts ask whether the unlawful condition can be severed. In 1999, we proposed
       to reform the law in this area. However, although the law on severance is
       somewhat complex, it usually reaches the right result. As we explore below,26 we
       now think that law in this area is neither so complex nor so significant that it
       requires statutory intervention.

2.21   In our 2009 consultative report we therefore provisionally recommended the
       introduction of a statutory discretion that would apply only to a limited category of
       trusts, where the illegality currently has the most impact. This provisional
       recommendation was very well supported by respondents to that paper.27

2.22   We recommend that legislative reform is needed to provide the courts with
       a discretion to determine the effect of illegality on a limited class of trust.

2.23   In Appendix A we provide a draft Bill to give this recommendation effect. It is
       limited in scope, and only covers cases where a trust is used to conceal the true
       ownership of property for a criminal purpose. Explanatory notes are provided in
       Appendix B. In the paragraphs below we set out our recommendations in more
       detail and explain our reasoning.
       24
            Although the position in relation to a case involving illegality is made more complicated by
            the suggestion in one Court of Appeal decision that a claimant who was the joint legal
            owner of a house might not be able to rely on any presumption of joint beneficial ownership
            where there was an issue of illegality involved: see Gibson v Revenue & Customs
            Prosecution Office [2008] EWCA Civ 645, [2008] All ER 157 at [24].
       25
            An example is Re Beard [1908] 1 Ch 393, where a nephew was left property provided he
            did not "enter military service". The judge declared that few provisions could be "more
            against the public good and the welfare of the state". The condition was severed from the
            trust.
       26
            Paras 2.110 to 2.114.
       27
            For a critical appraisal see P Davies, "The illegality defence - two steps forward, one step
            back?" [2009] Conveyancer and Property Lawyer 182.



                                                    13

       OUR RECOMMENDED SOLUTION - A STATUTORY DISCRETION TO APPLY
       TO A LIMITED CLASS OF TRUSTS

       1. To which trusts should the discretion apply?

       (1) Trusts created in order to conceal beneficial ownership for a criminal
       purpose
2.24   As we explained above, we no longer advocate the broad approach which we put
       forward in 1999. We agree with those respondents who told us that our
       provisional proposals were too broad in scope and would have created too much
       uncertainty. We therefore want to target the discretion at those cases where the
       use of the reliance principle is causing most difficulty. Much of the recent case
       law concerning the effect of illegality on trusts has involved arrangements
       whereby the claimant has transferred or bought assets in the name of an initially
       friendly defendant while intending to retain the beneficial ownership but hide it
       from others for a criminal purpose.28 In these cases, the very purpose of the
       creation of the trust is to conceal the true beneficial ownership. Here the case law
       has bound itself up with rigid rules which are arbitrary and can cause injustice.
       We therefore recommend that it is to this type of "concealment" case only that the
       statutory discretion should apply.

               For example, Mr A wants to protect his estate from any future liability
               to inheritance tax. He therefore transfers his assets into the name of
               his daughter, Miss B, on the understanding she should hold them on
               his behalf. He retains control over them, but they agree to hide this
               arrangement from the tax authorities. Should Mr A and Miss B later
               disagree over the ownership of the assets, the case would fall within
               the scope of our recommended discretion.

2.25   We considered whether the Bill should only apply to purposes which are criminal,
       or whether the Bill should apply to any case involving a legal wrong. At one
       stage, there was some doubt about whether certain frauds (such as concealing
       assets from an ex-spouse) were necessarily criminal.29 However, the Fraud Act
       2006 has clarified the law in this area, and all the examples we considered in
       which property had been concealed from creditors, ex-spouses or the tax
       authorities, are either specific offences or fall within sections 2 or 3 of the Fraud
       Act 2006. It is true that not all concealment is necessarily criminal: a public figure
       may, for example, conceal wealth to prevent media intrusion. However, in such
       cases the law currently permits the trust to be enforced, and we think this is
       correct. The discretion to refuse enforcement should be confined to cases
       revealing a criminal intention.




       28
            For example, Tinsley v Milligan [1994] 1 AC 340; Tribe v Tribe [1996] Ch 107; Silverwood v
            Silverwood (1997) 74 P & CR 453; Lowson v Coombes [1999] Ch 373; Collier v Collier
            [2002] EWCA Civ 1095, [2002] BPIR 1057; Anzal v Ellahi (2001) 82 P & CR DG21; Slater
            v Simm [2007] EWHC 951, [2007] WTLR 1043; Knowlden v Tehrani [2008] EWHC 54;
            Barrett v Barrett [2008] EWHC 1061, [2008] 2 P & CR 17; Q v Q [2008] EWHC 1874 (Fam), 
            [2009] 1 FLR 935 and Bales v Porritt [2008] EWHC 2188.
       29
            For discussion of the law in this area prior to the Fraud Act 2006, see the Law Commission
            report on Fraud (2002; Law Com No 276, BAILII: [2002] EWLC 276 ).



                                                  14

2.26   We also considered limiting the scope of the recommended discretion to cases
       where the claimant's purpose in concealing the ownership was to commit a fraud,
       rather than any type of crime. However, this may not be wide enough. In Tinsley
       v Milligan, Lord Goff was concerned about how the reliance principle supported
       by the majority would apply in cases where the claimant had been involved in
       serious, although not necessarily fraudulent, illegality. He said:

               There may be cases in which a group of terrorists, or armed robbers,
               secure a base for their criminal activities by buying a house in the
               name of a third party not directly implicated in those activities -¦ Is it
               really to be said that criminals such as these, or their personal
               representatives, are entitled to invoke the assistance of a court of
               equity in order to establish an equitable interest in the property?30

2.27   If, as Lord Goff appeared to be suggesting, the house is bought in the name of a
       third party because the terrorist or armed robber wants to hide his or her interest,
       then there seems to be no reason why these cases should not also fall within the
       proposed discretion. We therefore recommend that the discretion should apply
       when the trust has been created to conceal the true beneficial ownership in
       connection with any criminal purpose.

2.28   We did consider whether we should limit the scope of the discretion to cases
       where the purpose was a "serious" crime in order to ensure that we did not
       capture minor technical infringements of the criminal law. However, we found it
       difficult to ring-fence particular "serious" crimes that might be included here. Short
       of trawling through all crimes that exist and listing those that appear in some
       sense worse than others, there is no obvious method of selecting particularly
       serious ones.31 Any such demarcation would be controversial. We consider that,
       by limiting the application of the recommended discretion to cases where the
       purpose was to "conceal" the interest, we have already narrowed it sufficiently.

2.29   We recommend that the discretion should apply whether or not the criminal
       purpose has been acted upon. This means that it will apply to those cases that
       are currently dealt with under the withdrawal exception to the reliance principle.
       Of course, the fact that the intention has not been acted upon will be a very
       relevant factor in deciding what the outcome of the exercise of the discretion
       should be.32




       30
            [1994] 1 AC 340, 362.
       31
            We have considered definitions by reference to method of trial, potential or likely
            punishment, and other legislation such as the Proceeds of Crime Act 2002 and the Serious
            Crime Act 2007. None of these has provided a workable solution.
       32
            For details of the factors that the court should take into account, see paras 2.62 to 2.80
            below.



                                                    15

2.30   We recommend that the discretion should apply whether it is the trustee or the
       beneficiary that is using the trust arrangement to conceal the true ownership. In
       most of the cases that we have discussed, it is the beneficiary who is attempting
       to conceal his or her own interest in order to hide it from those who may have
       claims over it - such as creditors, tax authorities or social security administrators.
       However, there are also cases where it is the trustee who has concealed the trust
       arrangement, in order to give the false impression that he or she has greater
       wealth than is really the case.33

               For example, Ms C wants to set up in business and is seeking
               backers to meet her start up costs. Ms C has few assets herself. To
               appear more creditworthy, she asks her friend, Ms D, to transfer
               funds into her bank account, both agreeing that Ms C holds the funds
               for Ms D and will return them when asked. Although it is the trustee
               who is attempting to conceal the real ownership of the trust property,
               this example still falls within the recommended discretion.

2.31   We recommend that the discretion should also apply where the trust was not only
       entered into to conceal the true ownership of the property but for other purposes
       as well. For example, in Tinsley v Milligan the parties had contributed to the
       purchase of a home together, but transferred the legal title into the name of Miss
       Tinsley only. They believed that this would assist Miss Milligan to claim social
       security benefits on a fraudulent basis. However, as well as having this illegal
       purpose, the trust was also created to provide a home for them.

2.32   We recommend that the statutory discretion should apply when the trust
       arrangement is created in order to conceal the beneficiary's interest in the
       trust property in connection with a criminal purpose.34

2.33   We recommend that the statutory discretion should apply whether or not
       the criminal purpose has been acted upon.35

2.34   We recommend that the statutory discretion should apply whether it is the
       beneficiary or the trustee who intends to use the trust arrangement in order
       to conceal the real ownership of the trust property.36

2.35   We recommend that the statutory discretion should apply when the trust
       arrangement is created for other purposes in addition to the concealment
       of the real ownership.37




       33
            One example is Re Great Berlin Steamboat Co (1884) LR 26 Ch D.
       34
            See clause 2(2) of the draft Bill.
       35
            See clause 2(2) of the draft Bill.
       36
            See clause 2(3)(a) of the draft Bill.
       37
            See clause 2(3)(b) of the draft Bill.



                                                    16

       (2) Trusts already created but subsequently used to conceal beneficial
       ownership for a criminal purpose
2.36   We have considered whether the statutory discretion should cover cases where a
       trust is already in existence and the criminal motive is formed at a later date. It is
       possible that one person may transfer property to another, without intending to
       make a gift to the other, but without at that time having any illicit motive. What if
       the transferor should at a later time decide to conceal his or her beneficial interest
       for a criminal purpose? Say, for example, that in Tinsley v Milligan, Miss Milligan
       had decided to defraud the Department of Social Security regarding the
       ownership of the house only after the conveyance to Miss Tinsley had been
       made. In some cases, particularly those involving a constructive trust, it may be
       difficult to pinpoint the exact time that the trust came into existence.

2.37   Under the present law such a trust would be valid and enforceable, because the
       beneficiary does not need to rely on the subsequent criminal purpose in order to
       establish the claim. In Slater v Simm,38 the claimant was the administratrix of
       Miss Nashida's estate. Miss Nashida was the former partner of the defendant,
       with whom she had bought an investment property. For reasons that are not
       made clear, the title to the property had been registered solely in Miss Nashida"s
       name. The defendant claimed an interest in the property on a resulting trust
       basis, equivalent to the contribution that he had made towards the purchase
       price. The claimant argued that the defendant was unable to enforce this interest
       because five years after the purchase he had concealed the interest in a financial
       statement made under oath relating to his divorce proceedings. The Court upheld
       the defendant's claim. It found that the decision to conceal his interest only arose
       after the purchase had been made. The parties" intentions had to be assessed at
       the time of the purchase. The defendant could rely on the presumption of
       resulting trust, and under the reliance principle he had no need to explain why the
       property was put into Miss Nashida's name only.39




       38
            [2007] EWHC 951 (Ch), [2007] WTLR 1043.
       39
            However, in Collier v Collier the Court of Appeal took an arguably broad view of the
            father's illegal purpose, without which his claim would have succeeded. His subsequent
            fraudulent intention to defraud the mortgagees was caught, because the Court defined his
            original intention at the time of the transfer as deceiving "creditors generally" and not
            simply those in sight at the moment: see, in particular, the reasoning of Mance LJ, 
           [2002] EWCA Civ 1095, [2002] BPIR 1057 at [108] to [109].



                                                   17

2.38   In our 1999 consultation paper, we were unsure whether these cases of
       subsequent unlawful motive should be included within the broad discretion that
       we then proposed. We excluded from our definition of an "illegal trust" cases
       where the beneficiary decided to use the trust property for illegal purposes only
       after the trust had been created. We suggested that this was but one illustration
       of a much more general fact pattern: that is, where a person to whom property is
       given, independently chooses at some later date to use the property to
       accomplish an illegal end.40 The court is not generally able to invalidate property
       rights in all such cases. That would produce an unacceptable degree of
       uncertainty.

2.39   Now that our recommended discretion is limited to cases where the beneficial
       ownership is being concealed in connection with a criminal purpose, there seems
       less reason not to include these cases. Their inclusion would not result in an
       unacceptably wide discretion. In the contract context, we have criticised the
       present position under the common law rules whereby the contract's validity
       depends on whether the intention to perform illegally was formed before or after
       the contract was made.41 We have suggested that the timing of the intention
       should not be the determining factor in deciding its validity. The same arguments
       apply here.

2.40   However, we do not want to include those cases where the trust arrangement is
       merely incidental to the crime that is committed. A person who simply happens to
       hold an interest under a trust arrangement (such as shares) may fail to declare
       that interest when under a duty to do so, for example by failing to disclose a
       shareholding in his or her tax return. The fact that the shares are held under a
       trust is not part and parcel of the fraud - it is simply the mechanism in which the
       vast majority of shares happen to be held. To include all these cases would cover
       a much wider remit than our policy requires. We are concerned here only with
       those cases where the trust institution itself has been used for criminal purposes.
       Where the trust was not created with the criminal purpose in mind, we therefore
       propose to include only those cases where the beneficiary has deliberately
       continued the trust arrangement in order to take advantage of the opportunity for
       criminal behaviour which it offers.

2.41   In addition, in these cases we consider that there should be two limiting factors to
       the application of the discretion. First, it should only apply where the arrangement
       has already been exploited. Secondly, the discretion should only apply where the
       concealment is either by the beneficiary or with the consent or connivance of the
       beneficiary. Otherwise he or she would risk having the beneficial interest in the
       property taken away despite being wholly innocent of the unlawful scheme.




       40
            See CP 154, paras 8.38 to 8.39. However, we expressed doubts about whether this
            argument remained valid where a party decided to use the trust institution itself for a
            fraudulent purpose after the date that the trust was created. Here we thought that it might
            be more sensible to subject such a case to the proposed discretion rather than draw a hard
            and fast line depending on the date on which the criminal intention was created.
       41
            CP 189, para 3.59.



                                                   18

                  For example, suppose that F, a young child, is the beneficiary of a
                  trust fund set up by a wealthy benefactor. On reaching majority, F is
                  asked whether she would like the trust to terminate and have the
                  funds transferred into her name directly. F decides not to take up this
                  option. She wants to claim a student grant to continue her studies and
                  believes that she is more likely to be able to hide her true wealth if the
                  funds are not in her bank account. She completes the application
                  form without revealing her equitable interest. Should a dispute arise
                  at a later date over the ownership of the trust, the case would fall
                  within our recommended discretion.

2.42   We recommend that the discretion should apply where the intention to use
       the trust arrangement to conceal the beneficial ownership for a criminal
       purpose is formed after the trust was created. However, it should be limited
       to cases where:

            (1)     the beneficiary has taken steps to ensure that the trust arrangement
                    continues in place so that the concealment can be made; and

            (2)     the criminal purpose has been carried out either by the beneficiary
                    or by somebody with the beneficiary's consent.42

       (3) Trusts involving some element of illegality but not within the scope of
       our recommended discretion
2.43   The new narrow scope that we have recommended for the statutory discretion
       means that it will not apply to every case in which the reliance principle is
       presently used. For example, the discretion will not apply where the only illegality
       involved is the technical breach of a statutory prohibition relating to the proper
       formation of the trust. There has not been any attempt at concealment here. The
       correct approach to determining the effect of the illegality on the validity or
       enforcement of such a trust will depend on the interpretation of the statute and
       the reliance principle.

2.44   Nor will the discretion apply to cases such as Macdonald v Myerson43 or
       Mortgage Express v McDonnell,44 where the only illegal element in the case is
       the source of the trust property. Here the reliance principle will still be used to
       determine the case, but the effect is that the illegality is simply ignored. We think
       that, in these cases, the statutory provisions for forfeiture and civil recovery
       contained in the Proceeds of Crime Act 2002 are likely to apply. There is
       therefore less need for any civil doctrine of illegality.




       42
             Clause 2(4) of the draft Bill.
       43
             [2001] EWCA Civ 66, [2001] EGCS 15.
       44
             [2001] EWCA Civ 887, (2001) 82 P & CR DG21.



                                                  19

               For example, say that Mr G had benefited from a lifestyle of crime. He
               used his ill-gotten gains to set up a trust fund for the benefit of himself
               and his family. The trust arrangement was used for quite legitimate
               tax purposes and there was no attempt to conceal the ownership.
               Should a dispute later arise in relation to the trust property, the case
               would not fall within our recommended discretion. Any illegality issues
               would be resolved using the reliance principle and the Proceeds of
               Crime Act 2002.

       2. The scope of the discretion

       (1) Cases that will be included within the ambit of the discretion
2.45   We consider that the discretion should apply even where the parties did not
       realise that the concealment would be criminal and where nobody has been
       prosecuted. Of course the court will need to be satisfied to the civil standard of
       proof, that is "on the balance of probabilities", that the purpose of the trust
       arrangement was to conceal the beneficial ownership for a criminal purpose
       before the Bill will apply, and these are factors that may be relevant when the
       discretion is exercised.

2.46   In many cases the concealment of the beneficial interest will in itself constitute
       the criminal purpose. For example, a party may falsely declare that he or she
       does not have any interest in a property in order to continue receiving state
       benefits. We consider that the definition of a criminal purpose within the draft Bill
       should make clear that such cases are included.

2.47   Our recommended discretion would apply whatever type of trust was in issue:
       oral, written, express, resulting or constructive. The same considerations apply in
       each case. The advantage of this approach is that we are not seeking to isolate
       in statutory language the various different types of trust when the boundaries
       between each of them are ever shifting.

2.48   We recommend that the statutory discretion should apply even where the
       parties did not realise that the concealment would be criminal and where
       there has not been any prosecution.45

2.49   We recommend that the statutory discretion should apply when the
       concealment of the beneficial ownership would itself constitute a criminal
       offence.46

2.50   We recommend that the statutory discretion should apply whichever type
       of trust is in issue.47




       45
            See clause 2(5)(a) and (c) of the draft Bill.
       46
            See clause 2(6) of the draft Bill.
       47
            See clause 1(4)(b) of the draft Bill.



                                                     20

       (2) The application of the discretion to trusts where the person creating the
       trust is not also the intended beneficiary
2.51   So far, we have only looked at examples of cases where the settlor, that is the
       person creating the trust, and the beneficiary of the trust are the same person.
       The settlor has devised the scheme so that he or she can remain the real hidden
       owner of the trust property, but another person, the trustee, is to hold the bare
       legal title to the property. It is this type of arrangement that has given rise to
       litigation in the past. However, it is possible to envisage that a similar type of
       scheme might be set up involving three or more parties. Here, for example, the
       settlor may wish to give property to another who, for fraudulent reasons, plans to
       hide the fact that he or she is the true beneficiary of the gift.

               For example, a father wants to give property to his son. However, his
               son is presently going through an acrimonious divorce and does not
               want his wife to benefit from the gift. The father therefore agrees that
               the property should be transferred to a third party to be held on trust
               for the son, thereby making it easier for his son to conceal his interest
               in it. The son fails to disclose his interest in the divorce proceedings.

2.52   In the situation outlined above, the type of behaviour involved - the use of the
       trust institution for an unlawful purpose - is exactly the same as that which occurs
       where the settlor and beneficiary are the same person. We therefore consider
       that these cases should also be included within the scope of the proposed
       discretion. Indeed if they were not included, it would be all too easy for a settlor to
       avoid the application of the proposed discretion simply by inserting a friendly third
       party into the arrangement. Where several people are involved in the trust
       arrangement, there is greater scope for the trust to be used for unlawful
       purposes. We intend that the discretion should apply in all these circumstances.

2.53   We recommend that the statutory discretion should apply to cases both
       where the settlor and beneficiary are the same person and to cases where
       the settlor and beneficiary are different.48




       48
            See clause 2 of the draft Bill.



                                               21

       (3) The different treatment that would be given to equitable and legal
       interests as a result of our recommendations
2.54   If our recommendations are implemented, it would mean that the illegality
       doctrine applies differently to legal interests and (most) equitable interests. In
       relation to legal interests, the reliance principle will continue to apply. This
       discrepancy has caused us concern. The main driving force behind the House of
       Lords" decision in Tinsley v Milligan was its determination that legal and equitable
       interests should be treated in the same way.49 However, we believe that we can
       justify our recommendation for different treatment in relation to the equitable
       interest here. In the cases that fall within the proposed discretion, the trust
       institution is being used to conceal the equitable interest in a way that is simply
       not possible with the legal interest. We are recommending the different treatment
       of the two estates because the claimant has treated them differently. It is the
       intention to conceal the beneficial ownership by splitting the two estates that sets
       this type of case apart.

       HOW IS THE DISCRETION TO OPERATE?

       1. A declaration of entitlement
2.55   We recommend that once the court has determined that the trust falls within the
       scope of the proposed discretion, the court must first declare that the intended
       beneficiary is entitled to the equitable interest. It must do this before it goes on to
       exercise its discretion.

2.56   At first sight such an approach seems unnecessary and counter-intuitive, so why
       do we recommend it? The reason is that this step is needed to cure an
       inconsistency that might otherwise arise between the interaction of the criminal
       and civil law. If the civil courts were simply to declare that the beneficiary was not
       entitled to the equitable interest in question, then the beneficiary could not have
       committed an offence by failing to declare it when asked, or by claiming benefits
       on the basis that it was not owned. Such a declaration would jeopardise any
       criminal prosecution that had been brought or was to be brought against the
       beneficiary. Likewise it might prevent the State from being able to bring any
       successful confiscation proceedings under the Proceeds of Crime Act 2002. The
       case law shows that the courts are already struggling to deal with the interaction
       between the illegality rules and the rules for the confiscation of the proceeds of
       crime.50 We do not intend that the recommended discretion should be used in
       order to legitimise retrospectively the criminal behaviour of any of the parties.

2.57   We recommend that the first step that the court should take in relation to a
       trust to which the discretion applies is to declare that the intended
       beneficiary is entitled to the equitable interest. 51




       49
            See, in particular, the comments of Lord Browne-Wilkinson in [1994] 1 AC 340, 371.
       50
            See, for example, R v David Edward Dale [2006] EWCA Crim 1889.
       51
            See clause 3(1) of the draft Bill.



                                                  22

       2. The need for exceptional circumstances
2.58   The second step for the court to take will be to determine whether it should
       exercise its discretion not to allow the beneficiary to enforce the trust. That is, the
       court will have a discretion to determine that, even though the beneficiary is
       entitled to the equitable interest, the beneficiary ought not to be allowed to
       enforce that interest.

2.59   However, even within the limited scope of our recommended discretion we
       consider that illegality should only affect the beneficial entitlement of a trust
       where there are "exceptional circumstances". To succeed, a beneficiary must
       establish an equitable entitlement to the property. We consider that there will
       need to be strong public policy reasons for the court to decide that the
       beneficiary's usual equitable rights should be denied. We raised this issue in our
       1999 consultation paper when we asked whether there was a need for a "starting
       point" for our proposed discretion. There was strong support for a starting point
       that, notwithstanding the illegality, the trust should be valid.

2.60   Because of the many varied circumstances in which the discretion may come into
       play, we do not think that it is sensible to attempt to set out in legislation what
       might constitute "exceptional circumstances". We think that this matter can be
       safely left to the courts. However, we anticipate that the court might consider that
       the circumstances were exceptional where, for example, the claimant's conduct
       has been particularly blameworthy and the State's powers of confiscation and
       recovery do not apply. What the need for exceptional circumstances does
       indicate is that in the general "run of the mill" type of case we do not expect the
       illegality to have any effect on the beneficiary's entitlement.

2.61   We recommend that the illegality should only have an effect on the
       beneficial entitlement under the trust when the court considers that there
       are exceptional circumstances. 52

       3. The factors the court may take into account when exercising its
       discretion
2.62   Where the court concludes that there are exceptional circumstances, we
       recommend that it should have a discretion to determine that the beneficiary
       ought not to be allowed to enforce the equitable interest.

2.63   In order to provide some guidance to the court on how to exercise its discretion,
       we recommend that the draft Bill sets out a list of factors guiding the court
       towards the relevant points to take into account. As we have seen, some
       respondents were reluctant to endorse the introduction of a statutory discretion
       because of the uncertainty that they believed that it would create. We consider
       that any such uncertainty can be reduced by structuring the discretion in this way.




       52
            See clause 4(1) of the draft Bill.



                                                 23

2.64   The purpose of the statutory discretion is to ensure that the courts" decisions
       reflect the policy issues that underpin the illegality doctrine. We examined these
       in some detail in our 2009 consultative report.53 The relevant factors set out in the
       draft Bill are designed to ensure that these policies are properly reflected in the
       outcome of the particular case. Some factors look at the comparative "guilt" or
       "innocence" of the parties to the dispute and might be regarded as ensuring that
       justice is done between the parties. Others focus on the wider public policy
       issues that come into play when illegality is involved. These may, in certain
       cases, conflict with what would otherwise be the fair resolution of the case. We
       propose that the court should balance all these factors against each other in
       order to reach its decision.

2.65   The list that we recommend here is similar to that which we proposed in both our
       1999 and 2001 consultation papers, when we suggested a more general
       statutory discretion. All respondents who commented on this issue thought that
       the provision of a list of factors would be helpful, and largely agreed with those
       that we had suggested. The main point of difference here is the inclusion of two
       new factors: (1) the conduct of all the parties involved; and (2) the possibility that
       the intended "victim" of the concealment may have an interest in the value of the
       assets of the beneficiary. We look at these issues below.

       (1) The conduct and intention of all the relevant parties
2.66   We recommend that the court may consider the conduct and intention of the
       intended beneficiary. It may look at such issues as whether a crime has actually
       been committed; whether the beneficiary instigated the arrangement; whether he
       or she was aware that the purpose was illegal; and whether the crime involved
       was serious.

2.67   We consider that the conduct and intention of the beneficiary should have a
       prominent impact on the decision whether the various policies which justify the
       illegality doctrine would be effectively advanced by determining that the
       beneficiary ought not to be allowed to enforce the trust. For example, if the
       beneficiary was unaware that the purpose of the arrangement was illegal, or had
       already repented and withdrawn from the crime, then allowing the claim would be
       less likely to abuse the integrity of the legal system. On the other hand, if the
       beneficiary instigated the criminal purpose of the arrangement, then not allowing
       the claim may act as a strong deterrent to others from entering into similar
       schemes.




       53
            CP 189, Part 2.



                                             24

2.68   We also recommend that the court may consider the conduct and intention of the
       trustee and the settlor (where they are not the same person as the beneficiary).
       This is largely because these are the people who are likely to benefit if the
       beneficiary is not allowed to enforce the trust. In the 1999 consultation paper we
       did not include this in our provisional list of factors. However, we did point out
       that, if the trustee were ever to be allowed to benefit from the failure of the trust
       for illegality, it may be necessary to add as a factor whether invalidity would
       "unjustly enrich the trustee".54 Few respondents commented on this point. One
       did not find the terminology of "unjust enrichment" helpful here; and another
       thought that the point was so obvious that it did not require separate mention.

2.69   We have now reconsidered our position, and believe that the court should take
       into account each relevant person's conduct when exercising its discretion. There
       are a limited number of people to whom the beneficial interest can belong, if the
       trust is not enforced in favour of the beneficiary. The trustee, the settlor and any
       other beneficiaries are prime candidates. We discuss this point further (at
       paragraphs 2.87 to 2.99) when we consider what the ramifications might be if the
       court decides not to allow the beneficiary to enforce the trust. We do not suggest
       that the courts should simply compare, for example, the guilt of the beneficiary
       and the trustee and find in favour of whoever is "less" guilty. Yet it seems to us to
       be artificial to look at the claimant's conduct in isolation and ignore the behaviour
       of the other party to the transaction, who may well benefit if the trust is not
       enforced. Therefore, we recommend that the court may consider the conduct of
       all the relevant parties. In particular, were they involved in the illegal purpose,
       were they the instigator of it, or have they even profited from it?

       (2) The value of the equitable interest at stake
2.70   We recommend that the court may consider the value of the interest which the
       beneficiary is trying to enforce, particularly in relation to the seriousness of the
       offence which was committed or intended. A beneficiary who is not allowed to
       enforce the trust will lose the interest to which he or she was otherwise entitled.
       While we have said that the illegality defence should not be used as a means of
       punishing the claimant, the beneficiary might quite understandably regard such
       an outcome as punitive. We therefore believe that the value of the interest is
       relevant to the decision.




       54
            See CP 154, paras 8.80 to 8.81.



                                              25

2.71   This factor may be particularly important if the person claiming the equitable
       interest is also the settlor (or, in the case of a resulting trust, the transferor). In
       such cases, the court's decision not to enforce the trust would result in the
       expropriation of the trust property. Unless the illegality involved was particularly
       serious, the loss caused could vastly exceed any potential gain to be made from
       the illegality or the maximum penalty which could be imposed in criminal
       proceedings. For example, in Tinsley v Milligan,55 Miss Milligan had carried out
       social security fraud for a few years. She had subsequently admitted it and "made
       her peace with the DSS", presumably by the repayment of the amount
       overclaimed and any fines due. Yet she stood to lose her half share in her home.
       While not wanting to detract from the seriousness of the fraud or imply that this
       should be the only relevant factor to take into consideration, we believe that it is
       important for the court to bear in mind the value that the beneficiary stands to
       lose, compared with the seriousness of the conduct involved.

2.72   This factor may be less relevant when the beneficiary is not also the
       settlor/transferor. The beneficiary in this case is the recipient of a gift, and the fact
       that his or her expectations may be defeated by the illegality doctrine would seem
       to bear less weight in reaching the appropriate result. In such a case it would be
       possible for the court to decline to enforce the illegally tainted trust, but return the
       property to the settlor so that he or she has the opportunity of giving it to the
       beneficiary again, but this time in a legitimate manner.

       (3) The effect of allowing the claim on the criminal purpose
2.73   In some cases, allowing the claimant to enforce his or her usual rights would
       defeat the criminal purpose. So, for example, if the claimant had been attempting
       to put assets out of reach of creditors, to return the assets to the claimant might
       make them available to creditors, thereby defeating the purpose of the scheme.
       In other cases, returning the assets might further the criminal purpose. For
       example, if the claimant had "parked" assets in the name of the defendant to
       deceive investors into believing that the defendant was more creditworthy than
       was really the case, and such investments had been made, then returning the
       assets to the claimant would further the fraud. We think that the effect of any
       determination under the Bill on the unlawful act or purpose is a highly relevant
       factor.

2.74   However, the court should also bear in mind the principle that like cases should
       be treated alike. It is possible that allowing the claimant to enforce the trust might
       actually open the door to others to set up similar schemes in the knowledge that
       their assets would not be at risk. This proliferation of schemes might ultimately
       undermine the rule which has been infringed.




       55
            [1994] 1 AC 340.



                                              26

2.75   Where the intended crime involves the breach of a legislative provision, the court
       will need to consider the policy behind the relevant statutory provision to
       determine whether enforcing the trust would further that policy. We can draw
       analogies from the common law approach to the enforcement of illegal contracts,
       where the policy of any legislation infringed plays a central role. In Nelson v
       Nelson,56 the High Court of Australia adopted this approach as its primary test for
       determining the validity of the trust, in place of the reliance principle. Of course, if
       the statute actually provides that the trust is void or ineffective because of a
       breach of its provisions, then the case will not fall within the proposed discretion
       at all.

       (4) Whether refusing the claim would act as a deterrent
2.76   We recommend that the court should consider whether there would be any
       deterrence value in determining that the beneficiary ought not to be allowed to
       enforce the trust. That is, if the court were to deprive the claimant of a valuable
       asset, would that deter others from entering into similar arrangements? Of
       course, this will be difficult for the courts to assess with any degree of precision.
       However, we consider that deterrence is one of the policies that underpins the
       illegality doctrine, and the potential deterrent effect of the decision is another
       factor that the courts may take into account.

       (5) The possibility that the person from whom the equitable interest was
       being concealed may have an interest in the value of the assets of the
       beneficiary
2.77   In some cases the intended victim of the fraudulent scheme may have an interest
       in the value of the assets of the beneficiary. The victim may have a right to bring
       a claim against the beneficiary. In these cases, we recommend that the court
       may consider whether that interest would be unduly prejudiced if the court were
       to determine that the beneficiary could not enforce the trust. For example, a
       husband may transfer the legal title to assets to his mistress in an attempt to hide
       them from his wife. If a dispute were to arise between the husband and mistress
       over the beneficial ownership of those assets, in exercising the discretion
       proposed by our recommendations the court could take into account the
       possibility that the wife might at some point in the future bring a claim for financial
       relief against her husband under the Matrimonial Causes Act 1973. The value of
       that claim might be reduced if the court were to decide that the trust ought not to
       be enforced in the husband's favour.




       56
            (1995) 184 CLR 538.



                                              27

       (6) Other factors
2.78   In most cases we would expect these factors to be the most relevant ones. We
       therefore recommend that they are listed in the draft Bill in order to point the court
       towards the type of matter which may help it to reach a decision. However, we
       also recognise that cases in this area tend to vary significantly in terms of their
       facts and in terms of the type of trust arrangement that can be devised by the
       parties. We do not intend therefore that this list of factors should be exhaustive.
       We do not want to preclude the court from considering any other factors that may
       be relevant to a specific case.57

2.79   We recommend that the legislation should provide a non-exhaustive list of
       the factors that might be relevant for the court to take into account when
       exercising its discretion to determine that the beneficiary ought not to be
       allowed to enforce the equitable interest.58

2.80   We recommend that those factors should be:

            (1)    the conduct and intention of all of the relevant parties;

            (2)    the value of the equitable interest at stake;

            (3)    the effect of allowing the claim on the criminal purpose;

            (4)    whether refusing the claim would act as a deterrent; and

            (5)    the possibility that the person from whom the equitable interest was
                   being concealed may have an interest in the value of the assets of
                   the beneficiary.

       WHAT SHOULD BE THE CONSEQUENCES OF THE COURT'S DECISION?

       1. Where the court does not exercise its discretion, and the beneficiary may
       enforce the trust
2.81   As we have explained, under the draft Bill it is only in exceptional circumstances
       that the court may determine that the beneficiary ought not to be allowed to
       enforce the trust. The court will have already declared that the beneficiary is
       entitled to the equitable interest and the result is that the illegality has no effect on
       the civil claim. There is at present a whole range of equitable remedies that the
       claimant may ask for in order to protect that interest. For example, the claimant
       may ask for a declaration that the trust property is held on trust for him or her.
       The claimant may ask for an order for sale or an order that the property be
       transferred to him or her. We do not intend to create any new remedies for the
       claimant under our proposals. Instead, the claimant will have the usual remedies
       available to enforce an equitable interest.59




       57
             See clause 5(1) of the draft Bill.
       58
             See clause 5(1) of the draft Bill.
       59
             See clause 5(2) of the draft Bill.



                                                  28

2.82   In 1999, we raised the possibility that the court should be given a discretionary
       power to allow the beneficiary's claim only if the beneficiary made a payment or
       transferred property to a third person (such as the State) who was not a party to
       the action.60 Such a condition might be imposed to strip away any gains that have
       been made at the expense of the third party. So, for example, in Tinsley v
       Milligan,61 had Miss Milligan not already made reparation with the Department of
       Social Security, the recognition of her equitable interest could have been made
       conditional on her repaying all the benefits which she had fraudulently claimed.
       We did not express a preferred view on this issue.

2.83   Responses on this point were fairly evenly divided. Just under half thought that
       such a power would be useful. It was felt that the third party was unlikely, often
       through ignorance or lack of resources, to take any action itself in most cases.

2.84   On the other hand, just over half of those who commented thought that such a
       power should not be given to the courts. It was felt that where a gain had been
       made at the expense of a third party, that third party would generally have a right
       to recover it. It was argued that it should be left to the third party to decide
       whether to do so. Respondents suggested that it would defeat the point of the
       exercise of the discretion if, after deciding in favour of the beneficiary, this
       condition were imposed at the end. Others suggested that it would involve giving
       the courts an inappropriate "quasi-criminal" jurisdiction.

2.85   We have found this issue to be a difficult one, as the arguments on each side are
       finely balanced. However, we have come to the conclusion that no such power
       should be included in the draft legislation. The fact that in exercising its discretion
       the court will take into account whether the proceeds of fraud have been returned
       will provide an incentive for the beneficiary to make any reparation due.
       Otherwise, we are persuaded by those who argued that it should be a matter for
       the third party to decide whether and, if so, how to bring a claim for relief. In many
       cases, particularly where the fraud has involved the overpayment of a benefit or
       subsidy from the State, the third party will have some discretion in how best to
       handle the matter. Such issues should therefore be left for it to deal with.

2.86   We do not recommend that the court should be given a discretionary power
       to determine that the beneficiary ought to be allowed to enforce the
       equitable interest only on terms that require the beneficiary to make a
       payment or transfer property to a third party.

       2. Where the court exercises its discretion to determine that the beneficiary
       should not be allowed to enforce the equitable interest
2.87   What should be the position where there are exceptional circumstances and the
       court determines that the beneficiary ought not to be allowed to enforce the
       equitable interest? Again, we looked at this issue in 1999. However it is
       sometimes difficult to make direct comparisons, because our 1999 provisional
       proposals covered a much wider range of trusts than the present
       recommendations.


       60
            See CP 154, paras 8.86 to 8.88.
       61
            [1994] 1 AC 340.



                                              29

2.88   As we have seen,62 under the present law, where the claimant fails because of
       the illegality doctrine, it is not entirely clear to whom the interest then belongs. In
       looking at this question, it is helpful to deal separately with two party trusts where
       the beneficiary and settlor are the same person (or in the case of resulting trusts
       and some constructive trusts, the beneficiary and contributor/transferor) and
       three or more party situations, where the beneficiary and settlor are different.

       (1) Where the intended beneficiary is the settlor (or transferor/contributor)
2.89   In a two party trust, most cases work on the assumption that, if the claimant
       cannot enforce the trust, then the "trustee" will be effectively entitled to the
       property absolutely. However, there are judicial statements to suggest that the
       illegality is merely a personal disentitlement on the part of the claimant
       beneficiary, and that, for example, his creditors may be able to claim rights over
       it.63 The interest appears to be in some sort of limbo. There is no suggestion in
       the case law that the trust property is forfeited to the State.

2.90   We believe that this confusion is unsatisfactory and unnecessary. We therefore
       propose that the court must declare, in those cases where it determines that the
       beneficiary ought not to be allowed to enforce the equitable interest, who ought to
       become entitled to it instead. The court can then determine in whom the interest
       is now vested and make such consequential orders as it sees fit.

2.91   In a two party situation, if the beneficiary is not to be allowed to enforce the trust,
       there are in most cases only two possible alternative owners. Either the legal
       owner may take beneficially, or the trust property, being effectively "ownerless",
       should be forfeited to the State. In 1999 we asked respondents for their preferred
       option. Very few (seven) made any comments. Of these, four argued that the
       trust property would be ownerless and should belong to the State. Otherwise, it
       was argued, the trustee would be inevitably unjustly enriched by the decision. No
       one argued in favour of trustee ownership only. A few suggested that the
       preferable solution may vary from case to case and the courts should be given a
       choice about which option to pursue.




       62
            See paras 2.8 to 2.12 above.
       63
            Collier v Collier [2002] EWCA Civ 1095, [2002] BPIR 1057.



                                                 30

2.92   We have found this a difficult matter to decide. In a different context,64 several
       respondents expressed their reservations about giving the court a power to
       declare that trust property should belong to the State. It was suggested that this
       would amount to an order for the forfeiture of assets, which properly belongs to
       the criminal law. We tend to agree with this view. The only other option in most
       cases, therefore, is that the purported "trustee" should be allowed to keep the
       trust property. While such a solution will inevitably result in a windfall gain to the
       legal owner, there are safety checks to ensure that such a result is reached only
       in appropriate cases. In exercising its discretion not to enforce the trust, the court
       will have taken into account the conduct of the trustee. Furthermore, it will only be
       in exceptional cases that the court will have exercised its discretion not to allow
       the beneficiary to enforce the trust.

2.93   We therefore recommend that the court may determine that the legal owner of
       the property ought also to become the beneficial owner. This would appear to
       require a new statutory power to be given to the court. For example, even where
       the alleged "trustee" has not counterclaimed for any declaratory relief in his
       favour, we propose that the court should have the power to determine that the
       trustee ought to become entitled to the equitable interest in order to avoid
       uncertainty of ownership.

2.94   In cases where the intended beneficiary and settlor are the same, we
       recommend that, if the court determines that the beneficiary ought not to
       be allowed to enforce the equitable interest, then it must make a declaration
       to that effect and declare in whom the equitable interest is now to be
       vested.65

       (2) Where there is more than one beneficiary or the intended beneficiary
       and settlor are different people
2.95   In cases where there is more than one beneficiary or the intended beneficiary
       and settlor are not the same person, the situation is more complex because here
       there are a greater number of people competing over the same interest.
       Generally, when a primary trust fails, under the present law the trust property is
       held by the trustee on a "default" resulting trust in favour of the settlor. There is
       no question that the trustee might benefit personally. It is not clear, however,
       whether or how the reliance principle operates here. Could it ever prevent the
       settlor from being able to prove the resulting trust if the primary trust has failed
       because of illegality? It could be argued that the settlor has to "rely" on the
       illegality, in order to prove that the primary trust has failed. Certainly there are
       illegality cases where the courts have enforced resulting trusts in favour of the
       testator's estate,66 but there does not appear to have been a case where the
       claimant has been the settlor him or herself.




       64
            This was in answer to the question whether a person who has declared him or herself
            trustee of an illegal trust should be required to transfer the trust property to the State: CP
            154, para 8.71.
       65
            See clause 4 of the draft Bill.
       66
            For example, Thrupp v Collett (No 1) (1858) 26 Beav 125; 53 ER 844.



                                                     31

2.96   We raised this point in 1999 and asked whether consultees thought that the court
       should have a discretion to invalidate the "default" resulting trust. We did not
       receive many responses on this controversial issue. The majority of those who
       expressed a view thought that such a discretion should be available. It was felt
       that the courts would only use such a power in appropriate cases. It was also
       thought inconsistent to give the court a power to invalidate a fraudulent resulting
       trust in favour of the transferor in two party cases, but not to provide it with a
       similar power to invalidate a default resulting trust in favour of the settlor in three
       (or more) party cases. The minority argued that such a power would constitute
       unnecessary punishment of the settlor. It would be sufficient sanction that the
       primary trust is not enforceable. The settlor should not be in any worse position
       than he or she would have been had the illegal trust not been attempted at all.

2.97   Again, we have found this a difficult issue to resolve. In most cases, where the
       court exercises its discretion not to enforce the trust in favour of the intended
       beneficiary, the appropriate response would be to return the trust property to the
       settlor (as generally occurs when a trust fails). The failure of the primary trust
       would seem to be sufficient sanction to protect the policies that underlie the
       illegality doctrine. In most cases, the invalidity of this trust would prevent the
       integrity of the court system from being abused, would protect any rule which
       enforcing the trust would have infringed, and would deter others from attempting
       to set up similar trusts.67

2.98   However, there may be cases where the court considers that the settlor's illegal
       motivation has been so grave that simply unwinding the transaction is not
       sufficient to protect these policies. In these cases we consider that the court
       should determine that one of the other relevant parties to the arrangement ought
       to become entitled to the equitable interest. This may be the legal owner or any
       other beneficiary. We therefore recommend that the court should be given a
       power to determine that the settlor, trustee or any other beneficiary ought to
       become entitled to the equitable interest and make such consequential orders as
       it sees fit.

2.99   In cases where there is more than one beneficiary or the intended
       beneficiary and settlor are different people, we recommend that, if the court
       determines that the intended beneficiary ought not to be allowed to enforce
       the equitable interest, then it must determine who ought to become entitled
       to the interest instead. This may be either the legal owner, the settlor or any
       other beneficiary.68




       67
            For support for the view that it is sufficient to invalidate the trust in favour of 
            the beneficiary and return the trust property to the settlor, see N Enonchong, "Illegal 
            Transactions: The Future?" [2002] Restitution Law Review 82.
       68
            See clause 4 of the draft Bill.



                                                      32

        3. What should be the position where the original intended beneficiary has
        already dealt with the equitable interest in some way?
2.100   So far, we have been assuming that the claimant is the original intended
        beneficiary under the trust. However, in some cases, the claimant will be a
        person who alleges that he or she has acquired the interest from the original
        beneficiary in some way. For example, the original beneficiary may have
        purported to transfer the equitable interest to the claimant, or the claimant may be
        the heir of a deceased beneficiary. The outcome of the dispute will then depend
        on whether the original beneficiary was entitled to the equitable interest under the
        trust arrangement at some time in the past. We recommend that this should be
        dealt with in the same way as the general scheme, as outlined above.

2.101   The first step, therefore, will be for the court to make a declaration that the
        originally intended beneficiary was at the relevant time - that is, at the time that
        the claimant purports to have acquired the interest - entitled to enforce the trust.
        However, where the court considers that the circumstances are exceptional, the
        discretion will apply so that the court may determine that that beneficiary ought
        not, at that time, to have been allowed to enforce it, and that another person
        ought to have become entitled to it. The court can then determine in whom the
        interest should now be vested. This will allow the court to look at what has
        happened in relation to the equitable interest in the time since the claimant
        purports to have acquired it. For example, if the claimant has acted in good faith
        and spent money in relation to the interest, these are factors that the court can
        take into account in exercising its discretion.

                For example, Mr G transfers money to the bank account of his friend
                Mr H so that Mr G can falsely claim state benefits. Both parties intend
                that the money should still belong to Mr G. Mr G dies and his son
                inherits his whole estate. When the son asks Mr H to transfer the
                funds to him, Mr H refuses. This case would fall within the
                recommended discretion. The court would declare that Mr G was
                entitled to the money at the time of his death, but will need to
                consider whether the circumstances were exceptional so that it
                should exercise its discretion to determine that Mr G ought not to
                have been entitled to enforce the trust in his favour. If the court were
                to make such a determination, the court would also have to determine
                who ought to have become entitled to the money instead.

2.102   We recommend that in those cases where the claimant purports to have
        acquired the equitable interest from the original intended beneficiary of a
        trust to which the discretion applies, the court should declare that that
        beneficiary was entitled to the equitable interest, but that if the
        circumstances are exceptional, the discretion will apply to determine
        whether the beneficiary ought to have been allowed to enforce that
        interest.69




        69
             See clauses 1(2), 3(2) and 4(1) of the draft Bill.



                                                      33

        HOW WOULD THE DISCRETION INTERACT WITH OTHER LEGAL RULES?
2.103   The illegality defence clearly does not operate in a vacuum. We therefore need to
        consider how the recommended statutory discretion will interact with other legal
        rules which may be relevant to the recognition and enforcement of the trust. First,
        the purported beneficiary must establish that, illegality apart, he or she would be
        entitled to the equitable interest in dispute. For example, the usual trust rules
        relating to formalities, certainty and purpose will all apply.

2.104   More difficult to discern is how the discretion should interact with other rules
        relating to the illegality. We consider this issue below.

        1. The discretion does not apply where a statute provides that the illegality
        prevents the beneficiary from enforcing the trust
2.105   We recommend that the discretion should not apply where a statute provides that
        the beneficiary may not enforce the trust created under an arrangement or
        transaction which involves a breach of one of its provisions.70 The statute might
        say, for example, that the transaction is void or ineffective. Alternatively, the
        statute may make no express provision for the consequences. Instead, they may
        be implied from the express words. In either case, we do not intend that the
        discretion should apply to determine the equitable ownership. The court should
        instead defer to the Parliamentary intention set out in the statute.

2.106   We recommend that the discretion should not apply where a statute
        provides that the trust is void or otherwise ineffective as a consequence of
        the illegality arising from a breach of one of its provisions.

        2. Where the discretion does apply, then the effect of the illegality on the
        equitable interest should be determined only by using the discretion and
        not by any other rule of common law or equity relating to the illegality
2.107   Once the court has determined that the case before it falls within the scope of the
        discretion, we recommend that no other rules relating to illegality should apply. In
        particular, the reliance principle, the withdrawal exception and the "clean hands"
        rule should not be used to determine the outcome of the case.




        70
             There are numerous examples of legislative provisions which declare defined transactions
             to be void or ineffective. They are relevant to a much wider range of scenarios than those
             which we are considering. However, where they do apply to a case that would otherwise
             fall within the scope of the discretion, we consider that they should govern the position, and
             not the recommended discretion. For example, the Insolvency Act 1986 prescribes
             situations in which a transfer of shares or disposition is void, see sections 88 and 284.



                                                     34

2.108   The reliance principle and withdrawal exception have already been explained.71
        Loosely related to, and potentially overlapping with, these rules is the equitable
        maxim of "clean hands". Under this maxim, a claimant whose conduct has been
        improper will be denied equitable relief. Their Lordships representing the minority
        in Tinsley v Milligan argued that relief should be denied to Miss Milligan under the
        clean hands doctrine, but the majority rejected this approach. The maxim
        survives in other instances. It applies, for example, where the claimant seeks
        some form of discretionary equitable relief, such as specific performance or an
        injunction, or where the claimant asserts an equitable proprietary estoppel.72 We
        do not intend that it should have any role to play where the case falls within the
        statutory discretion. The conduct of the beneficiary will be taken into account as
        one of the factors that the court considers in exercising its discretion. All
        respondents who considered this matter agreed that this was the correct
        approach to take.

2.109   We recommend that, where the discretion applies, it should be the sole
        determinant of the effect of the illegality.

        3. Severance
2.110   The severance rules are general trust rules that are used to determine which, if
        any, objectionable terms of a trust may simply be struck out and ignored. The
        term may be objectionable either because it is unlawful or for other reasons, for
        example, that it is impossible or contrary to public policy. If the objectionable term
        can be "deleted", so that no illegal element remains, clearly the discretion would
        not apply.

2.111   The courts have developed technical rules for determining which terms can be
        "severed". Broadly, if the trust property is land, the court must decide whether the
        term is a "condition precedent" or a "condition subsequent". A condition
        precedent is one which must be satisfied before the gift can vest, whereas a
        condition subsequent operates to defeat an already vested gift by forfeiture.73
        Where the latter is objectionable, it may be struck out entirely and the rest of the
        trust is then enforced free of the condition. However, an invalid "condition
        precedent" will cause the whole trust to fail. The rules are similar in the case of
        personal property, but with an extra complication. Even where the condition is
        considered to be a condition precedent, the trust will not necessarily fail if the
        illegality is only "malum prohibitum" (not offensive in itself but made unlawful by
        statute). The trust will only fail where the illegality is "malum in se" (wrong in
        itself). This allows the court to strike out minor forms of illegality (even where
        expressed as a condition precedent), so as to enable the beneficiary to take the
        property clear of them.




        71
             The reliance principle was explained above at paras 2.2 to 2.4 and the withdrawal
             exception at paras 2.5 to 2.7.
        72
             Gonthier v Orange Contract Scaffolding Limited [2003] EWCA Civ 873, WL 21353340.
        73
             An interest subject to a condition subsequent must be distinguished from a determinable
             interest. Where the determining event is unlawful, then the whole interest will fail: Re
             Moore (1888) 39 Ch D 116.



                                                   35

2.112   The rules of severance will not generally be relevant to the typical cases that fall
        within the proposed discretion. However, it is possible to imagine a scenario
        where they could be applied, and then we would want them to be. Only if the
        illegal condition could not be severed, would the discretion then be relevant. An
        example may help to explain the point:

                   A father wants to give money to his son but dislikes his daughter-in-
                   law and does not want her to receive any benefit from his gift. He
                   therefore transfers the money to a trustee to hold on trust for his son
                   on the condition that the son does not declare the fund's existence
                   should the son ever divorce.

2.113   If, under the general trust rules on severance, the condition could be struck out,
        then this will be a straightforward trust for the son. The discretion would not be
        relevant. In 1999 we provisionally proposed that the rules relating to when a term
        may be severed should be reformed.74 However, there was not much support
        from consultees for our proposals. Given that we have now limited our
        recommendations for legislative reform to one narrowly defined area, we no
        longer propose to reform the severance rules as part of this project.

2.114   We recommend that the statutory discretion should not apply to cases
        where it is possible under general trust principles to sever the terms tainted
        by illegality from the trust.

        4. The Proceeds of Crime Act 2002
2.115   In addition to the private law of illegality, the law contains extensive provisions on
        forfeiture, confiscation and civil recovery of the proceeds of crime. These
        provisions were increased by the Proceeds of Crime Act 2002. Earlier in our
        consultation we considered whether the concealment of trust property for illegal
        purposes could be dealt with solely by such legislation. However, we concluded
        that reform of the law on illegality and trusts was still needed for three main
        reasons:

             (1)     In many cases a crime is contemplated but not actually committed;

             (2)     Even if a crime is committed, it will often not be prosecuted;

             (3)     Even if prosecuted, the subject matter of the trust will not necessarily be
                     the proceeds of crime and therefore would not be caught by the
                     confiscation provisions. For example, assets may be hidden to defraud
                     creditors, but the concealment may be discovered before the creditors
                     were actually defrauded.

2.116   Thus, in many cases the concealment of trust property for an illegal purpose will
        not be caught by the Proceeds of Crime Act 2002. We are therefore of the view
        that reform of the private law of illegality is needed, in order to provide remedies
        in addition to those under the Proceeds of Crime Act.




        74
              See CP 154, paras 8.116 to 8.125.



                                                  36

2.117   However, we do not want our proposals to prejudice the powers which the State
        has under the Proceeds of Crime Act 2002 to recover the proceeds of crime.75
        We therefore think that it will be necessary to make small amendments to that
        legislation in order to clarify how it should interact with our proposed discretion.

2.118   Under the provisions for criminal confiscation contained in Part 2 of the Proceeds
        of Crime Act 2002, the court is required to determine the worth of the criminal -
        his or her "available amount".76 Any confiscation order imposed by the court on
        the criminal cannot be for more than this available amount. We want to prevent a
        criminal claimant from arguing that, because the court has determined that the
        criminal ought not to be allowed to enforce a beneficial interest under a trust, the
        available amount is thereby reduced by the value of that interest. When this
        argument has been raised in the past,77 it has been peremptorily rejected. As Mr
        Justice Mitting said:

                It cannot have been the intention of Parliament to allow a sound
                principle of civil law to prevent the enforcement by the state of the
                very provisions by which it is seeking to deprive criminals of the
                benefits of their crimes.78

2.119   To ensure that a criminal is not able to benefit from our proposals in this way, we
        have included within the draft Bill provisions which will allow the value of the
        equitable interest to be included in the criminal's available amount. The Proceeds
        of Crime Act 2002 already requires the court to include the value of any "tainted
        gifts" in its determination. The effect of our recommended amendments is to treat
        the beneficiary as having made a gift of any equitable interest that the court
        determines he or she ought not to be allowed to enforce.

2.120   The position is slightly different in relation to Part 5 of the Proceeds of Crime Act
        2002 which deals with the civil recovery of property obtained through unlawful
        conduct. Here any recovery order is directed against the property, and not at the
        criminality of any particular individual. The order entitles the enforcing authority to
        recover the relevant property from whomever is now holding it. Generally
        property only ceases to be "recoverable property" when it is obtained by a person
        in good faith, for value and without notice that it was recoverable property.79
        Again we do not want the provisions in our Bill to interfere with the possible
        recovery of assets from the claimant (or any other relevant party) using civil
        confiscation proceedings. The draft Bill therefore contains a provision which
        makes it clear that any determination made under the discretion will not affect the
        operation of any civil confiscation proceedings.



        75
             We looked at the relevant provisions in some detail in Appendix A to CP 189.
        76
             Proceeds of Crime Act 2002, section 9.
        77
             R v David Edward Dale [2006] EWCA Crim 1889.
        78
             Above at [12].
        79
             Special provision is needed in the draft Bill to prevent the legal owner from taking
             advantage of section 308(3) of the Proceeds of Crime Act 2002 which provides that
             property ceases to be recoverable property for the purposes of the civil recovery provisions
             if it is obtained in civil proceedings by a claimant whose claim is based on the unlawful
             conduct.



                                                    37

2.121   We recommend that amendments should be made to the Proceeds of Crime
        Act 2002 to ensure that where the court exercises its discretion to
        determine that the beneficiary may not enforce the trust, there should be no
        adverse impact on the right of the State to recover the proceeds of crime.80

        5. Where the purpose of the concealment of the equitable interest is in
        connection with an offence under foreign law
2.122   Our recommendations for reform are aimed at trusts that are created to conceal
        the equitable interest for a criminal purpose. The type of offence that the use of a
        trust arrangement most frequently facilitates is one associated with fraudulent
        behaviour. This type of offence is by its very nature not restricted by national
        boundaries. It would, for example, be quite easy for a transferor in one country to
        create a trust over property situated in a second country with the intention of
        committing a fraud within a third country. We need to consider whether, and if so
        how, our reform proposals should apply to such an international scenario.

2.123   Initially we were attracted to the idea that our reform proposals should only apply
        where the purpose of the trust arrangement would constitute a crime under the
        law of England and Wales. We considered that it could substantially increase the
        complexity of the proceedings if courts were required to take into account foreign
        criminal laws. However, this would leave the existing common law rules and the
        reliance principle to apply to any cases where the purpose of the arrangement
        was an offence in another country. It is not at all clear how those rules would be
        applied. Would the courts allow a claimant to rely on evidence that constituted an
        offence under the law of a foreign state? If not, the court would be required to
        take into account the foreign law in any event. In this case we felt that it would be
        better to do so in the context of our proposed discretion, rather than the reliance
        principle. There is very little authority at all on the correct choice of law rules for
        resulting or constructive trusts - the trusts most commonly found where the
        arrangement has been used to conceal an interest.81

2.124   We looked at the conflict of law rules which apply in other areas to see whether
        these might provide any guidance. The most closely analogous situation seemed
        to be the rules governing the enforcement of contractual obligations.82 Under the
        common law rules, a contract was not enforceable (whether lawful under its
        governing law or not) where its performance was unlawful in the country where
        the contract was to be performed.83




        80
             See clause 6 of the draft Bill.
        81
             The governing law of a trust is generally determined by the Recognition of Trusts Act 1987
             which implements the Hague Convention on the law applicable to trusts. However, the
             extent to which this Act applies to resulting and constructive trusts has not yet been tested.
             Helpful discussion on this subject can be found in A Chong, "The Common Law Choice of
             Law Rules for Resulting and Constructive Trusts" (2005) 54 International and Comparative
             Law Quarterly 855 and Underhill and Hayton, Law of Trusts and Trustees (17th ed 2006) ch
             25.
        82
             For a detailed account, see Dicey, Morris and Collins, The Conflict of Laws (14th ed 2006)
             ch 32.
        83
             Foster v Driscoll [1929] 1 KB 470.



                                                     38

2.125   We therefore concluded that, by analogy, our discretion should apply not only
        where the concealment of the equitable interest is in connection with the
        commission of an offence under the law of England and Wales, but also where it
        is in connection with an offence under the law of the country where it was, or was
        intended to be, carried out. In the latter case, we do not consider that it is
        necessary that the conduct should also constitute an offence if it had taken place
        within England and Wales. Such an approach seemed unduly parochial84 and
        would leave cases outside its remit within the scope of the unsatisfactory
        common law. Any concerns that we had that behaviour regarded as innocent by
        our criminal law, although penalised abroad, should not disproportionately affect
        a claimant's property rights were allayed by our confidence that the court would
        exercise its discretion with sensitivity.

2.126   We recommend that the proposed discretion should apply where the
        concealment of the equitable interest was for the purpose of:

             (1)    an offence under the law of England and Wales; or

             (2)    an offence under the law of the country where the conduct element
                    of the offence was, or was intended to be, carried out (whether or
                    not it would also constitute an offence under the law of England and
                    Wales).85

        COMMENCEMENT AND EXTENT

        1. Territorial extent
2.127   The draft Bill in Appendix A extends only to England and Wales. This is because
        the Law Commission cannot make recommendations for Northern Ireland and
        Scotland. However, the Proceeds of Crime Act 2002 extends to Northern Ireland
        and Scotland, and consideration should be given to introducing provisions
        implementing our recommendations in relation to this Act in these jurisdictions, in
        order to achieve a consistent approach.

        2. Application of the discretion to existing trusts
2.128   We initially considered that our recommendations should only apply in relation to
        trusts that were created after the date of enactment of our draft Bill. This is
        consistent with the idea that legislative proposals should not retrospectively alter
        property rights. However, the effect of such a recommendation would be that the
        present unsatisfactory state of the law would continue for many years in relation
        to existing trusts, running alongside the statutory discretion which would apply to
        new trusts. Such an arrangement could certainly complicate an already complex
        area of the law. All the unsatisfactory features of the present law would continue
        for a long time into the future.



        84
              The common law "double actionability" test for determining the applicable governing law
              adopted in tort law was regarded as unsatisfactory and has been replaced by the Private
              International Law (Miscellaneous Provisions) Act 1995. The applicable law is now
              generally the law of the country in which the events constituting the tort occur.
        85
              See clause 2(7) of the draft Bill.



                                                    39

2.129   We therefore looked for an alternative approach which would result in less
        overlap, but at the same time would not risk undermining any person's property
        rights. We now recommend that the discretion should apply both to trusts created
        before and after the enactment of the Bill. However, beneficiaries should be given
        ample time between the enactment of the legislation and the date on which the
        discretion comes into force to consider whether they wish to rearrange their
        affairs. For example, a beneficiary who is concerned that he or she might lose the
        equitable interest under the exercise of the court's discretion could ask the
        trustee to transfer the property to him or herself thereby putting an end to the
        trust and to any possibility of concealment.

2.130   We have considered whether a recommendation that the scheme should apply to
        trusts existing at the date that the legislation is enacted would be compatible with
        the European Convention on Human Rights, and in particular with Article 1 of
        Protocol 1.86 We consider that it would be. Article 1 of Protocol 1 protects a
        person's right to the peaceful enjoyment of his possessions, but this right is
        subject to the public interest. In our view, any potential deprivation of property
        pursuant to a court order relating to a trust that was created before enactment
        would be justifiable on the basis that the exercise of the discretion strikes a fair
        balance between the parties" interests and the public interest.

2.131   We recommend that the statutory discretion should apply to all trusts
        within its scope whenever created, but that there should be a substantial
        period of time (say, one year) between the date of enactment of the
        provisions of the Bill and their coming into force.87




        86
             This states that: "Every natural and legal person is entitled to the peaceful enjoyment of his
             possessions. No one shall be deprived of his possessions except in the public interest and
             subject to the conditions provided for by law and by the general principles of international
             law."
        87
             See clause 7 of the draft Bill.



                                                     40

      PART 3
      ILLEGALITY AND OTHER CLAIMS

      INTRODUCTION
3.1   In this Part we consider how the illegality defence applies in relation to claims
      other than those brought to enforce a beneficial interest under a trust. We start by
      considering claims for breach of contract, claims in relation to a tort, and claims
      for restitution to prevent unjust enrichment. These are dealt with in paragraphs
      3.2 to 3.41. Different rules apply in relation to claims to protect proprietary
      interests transferred or retained under executed contracts. These are considered
      in paragraphs 3.42 to 3.47.

      THE ILLEGALITY DEFENCE IN CONTRACT, TORT AND UNJUST
      ENRICHMENT
3.2   In our 2009 consultative report, we examined the present law in these areas in
      some depth.1 We explained that, outside the context of proprietary claims, the
      reliance principle is by no means the universal rule that is used to determine
      whether illegality should have any effect on the civil claim. The case law in these
      other areas does occasionally refer to the reliance principle, but rarely to give it
      decisive effect.2

3.3   Where the claim is for breach of contract, the relevant illegality often involves the
      breach of a statutory regulation. If the regulation does not expressly specify what
      the effect of its breach should be on any contractual claim, then the court is left
      with the difficult task of interpreting the legislation to determine whether it
      impliedly provides for the issue.3 In addition, overlying this question of "statutory
      illegality", there are common law illegality rules which may prevent the claim from
      succeeding. These are difficult to establish with any degree of certainty. Where
      the terms of the contract require the commission of an offence,4 or committing the
      offence was a purpose of entering into the contract,5 it is often stated that the
      contract will be unenforceable. However, there are exceptions to these rules - for
      example where the illegality involved is of a minor or trivial nature or one of the
      contracting parties was unaware of the other's illegal intent.




      1
          CP 189, Parts 3, 4, 5 and 7.
      2
          For example, Archbolds (Freightage) Ltd v S Spanglett Ltd [1961] 1 QB 374, 388; Colen v
          Cebrian (UK) Limited [2003] EWCA Civ 1676, [2004] ICR 568 at [23].
      3
          The current purposive approach to take to an allegation of statutory illegality is set out by
          the Court of Appeal in Hughes v Asset Managers plc [1995] 3 All ER 669.
      4
          J M Allan (Merchandising) Ltd v Cloke [1963] 2 QB 340.
      5
          The relevant case law is reviewed in Anglo Petroleum Limited v TFB (Mortgages) Limited
          [2007] EWCA Civ 456, (2007) BCC 407.




                                                  41

3.4   In the consultative report we explained that there were problems with the present
      law. Of particular concern is its uncertainty. For example, the law on when a party
      can claim damages for breach of a contract that has been performed in an illegal
      way is not clear. Sometimes the illegality is ignored.6 In other cases the court has
      held that illegal performance prevents a party from being able to sue on the
      contract.7 It is not always clear how one case is distinguished from another. The
      judges have tended to focus on the point in time at which the parties decided on
      their illegal performance, but this is not always decisive.8

3.5   The result is a body of case law made up of an intricate web of tangled rules that
      are difficult to ascertain and distinguish. Neither litigants nor their advisers are
      able to predict with confidence which particular line of authority the court may
      follow. There is seldom any discussion in the judgments of what considerations
      the court has taken into account in deciding whether the illegality defence
      applies.

3.6   Similar criticisms might be made of the illegality rules as they apply to claims for
      unjust enrichment. The traditional approach adopted by the courts is to apply the
      Latin maxim "in pari delicto, potior est conditio defendentis" (where the parties are
      equally blameworthy, the defendant has the stronger position). The illegality
      defence will succeed unless the claimant is the "less blameworthy" party. To date
      this maxim has been inflexibly applied, so that the illegality defence fails in cases
      based on the duress,9 mistake10 or vulnerability of the claimant, but succeeds
      where the claim is based on a total failure of consideration.11 There is little or no
      discussion of the relative merits of the parties, the proportionality of applying the
      defence or the policy considerations that justify its existence.

3.7   Until recently, there was equal confusion in relation to the illegality defence and
      claims in tort. The Court of Appeal decision in Moore Stephens v Stone & Rolls12
      held that the illegality defence depended on the indiscriminate application of the
      reliance principle and that no discretionary element was permitted. However, in
      its subsequent decision in Gray v Thames Trains,13 a differently constituted Court
      of Appeal adopted a broader proximity-based approach. Both cases have now
      been the subject of House of Lords" decisions. 14 In paragraphs 3.25 to 3.33
      below, we look at the ramifications of these House of Lords" decisions.


      6
           A ship owner who takes on more than the legally permitted weight of cargo is still able to
           sue for his fee: St John Shipping Corporation v Joseph Rank Ltd [1957] 1 QB 267.
      7
           An employee who participates in his or her employer's PAYE fraud cannot claim unfair
           dismissal: Hall v Woolston Hall Leisure [2001] 1 WLR 225.
      8
           For a more detailed discussion see CP 189, paras 3.27 to 3.46.
      9
           Davies v London and Provincial Marine Insurance Co (1878) 8 Ch D 469.
      10
           Kiriri Cotton Co Ltd v Dewani [1960] AC 192.
      11
           Parkinson v College of Ambulance Ltd and Harrison [1925] 2 KB 1.
      12
           [2008] EWCA Civ 644, [2008] 3 WLR 1146.
      13
           [2008] EWCA Civ 713, [2009] 2 WLR 351.
      14
           See Gray v Thames Trains [2009] UKHL 33, [2009] 1 AC 1339 and Stone & Rolls Limited v
           Moore Stephens [2009] UKHL 39, [2009] 1 AC 1391.




                                                  42

 3.8   Despite the criticisms that we made of the law in our consultative report, we
       noted that it was rare for the courts to reach what might be regarded as an
       "unjust" result. For the most part, the courts applied the illegality defence in a fair
       fashion, to achieve the right policy outcome. We examined the possible policy
       rationales for the illegality defence. We concluded that in the vast majority of
       cases the illegality defence only succeeded where one or more of those policies
       justified its use. We therefore provisionally recommended that since the common
       law was already reaching the right result, legislative intervention was neither
       necessary nor helpful.

 3.9   The problem was that the courts were less good at articulating the policy reasons
       behind their reasoning. This meant that the law was not as transparent and clear
       as it might be. We noted that it was rare for the court to refer explicitly to any of
       the policy reasons that justified the application of the defence. Indeed in many
       cases the courts referred to the illegality doctrine as operating indiscriminately.
       Yet despite outwardly applying a set of rules, the courts do take into account a
       wide range of considerations to ensure the defence only applies where it is a just
       and proportionate response to the illegality involved. We argued that the courts
       should base their decisions directly on the policies that underlie the illegality
       defence and explain their reasoning accordingly. We considered that the
       common law could develop incrementally to reach this outcome.

3.10   In our 2009 consultative report we provisionally recommended that in each
       individual case the courts should consider whether the illegality defence can be
       justified on the basis of the policies that underlie that defence.15 The law would be
       clearer, more transparent and easier to understand if judges discussed these
       policy considerations openly in relation to the facts of the case before them.
       Following the recent House of Lords" decisions in Gray v Thames Trains16 and
       Stone & Rolls v Moore Stephens,17 this does seem to be the direction in which
       the courts are moving, at least in relation to tortious claims.

       The House of Lords" decision in Gray v Thames Trains
3.11   The House of Lords handed down its judgment in Gray v Thames Trains18 some
       five months after we published the 2009 consultative report. In some very helpful
       judgments their Lordships looked at some of the policy reasons which justified
       the application of the illegality defence and explained why those policies applied
       to the facts of the case.




       15
            See Part 8, recommendations 8.3, 8.6 and 8.11.
       16
            [2009] UKHL 33, [2009] 1 AC 1339.
       17
            [2009] UKHL 39, [2009] 1 AC 1391.
       18
            [2009] UKHL 33. See, P Davies, "The Illegality Defence and Public Policy" (2009) 125 Law
            Quarterly Review 556.




                                                 43

3.12   The claimant, "a decent and law-abiding citizen", sustained minor physical
       injuries in the Ladbroke Grove rail crash. He also suffered a psychiatric injury in
       the form of post traumatic stress disorder, which led to a significant change in his
       personality. He became unable to hold down a job. About two years after the
       crash, he stabbed a complete stranger to death. The claimant was convicted of
       manslaughter on the grounds of diminished responsibility and sentenced to be
       detained in hospital. He claimed damages for his loss of earnings from the date
       of the crash. He also claimed general damages for his detention, conviction,
       feelings of guilt and an indemnity against any claims which might be brought
       against him by the dependants of his victim.

3.13   The defendants accepted liability for the rail crash and loss of earnings up to the
       date of the killing. However, relying on the illegality defence, they argued that
       they were not liable for any loss of earnings after that date or for the general
       damages claims. The defendants did not dispute that but for the psychiatric injury
       that the claimant suffered in the rail crash, he would not have killed anybody.

3.14   The House of Lords held that the illegality defence applied both to the claim for
       lost earnings after the date of the manslaughter and to the general claims based
       directly on the killing and conviction.

3.15   Lord Hoffmann (in a judgment with which Lords Phillips and Lord Scott agreed)
       said that there was both a narrow and a wide form of the illegality defence. The
       narrow form is that:

               You cannot recover for damage which flows directly from loss of
               liberty, a fine or other punishment lawfully imposed upon you in
               consequence of your unlawful act.19

3.16   This is justified on the basis of consistency. Where the law, as a matter of penal
       policy, has caused the damage, it would be inconsistent for the law to require you
       to be compensated for that damage. This narrow version of the illegality defence
       meant that neither damages for the loss of earnings after the date of the killing
       were recoverable nor general damages for the conviction and detention.20

3.17   The wide form of the illegality defence is that:

               You cannot recover compensation for loss which you have suffered in
               consequence of your own criminal act.21




       19
            [2009] UKHL 33 at [29].
       20
            [2009] UKHL 33 at [33] to [50].
       21
            [2009] UKHL 33 at [29].




                                              44

3.18   This wide version is justified on the basis that it is offensive to public notions of
       the fair distribution of resources that a claimant should be compensated (usually
       out of public funds) for the consequences of his own criminal conduct. The wide
       version of the rule might lead to difficult issues of causation. Lord Hoffmann said
       he did not find it helpful to apply a Latin tag such as whether the claim arose "ex
       turpi causa" (that is, "from a dishonourable cause").22 Nor was it useful to apply a
       test based on whether there was "an inextricable link"23 between the claim and
       the illegality.24 Rather, a distinction had to be drawn between cases where,
       although the damage would not have happened but for the tortious conduct of the
       defendant, it was caused by the criminal act of the claimant; and cases where,
       although the damage would not have happened without the criminal act of the
       claimant, it was caused by the tortious act of the defendant. On the facts of this
       case, the wide version of the defence ruled out the claim for general damages for
       feelings of guilt and the claim for an indemnity against claims by dependants of
       the victim.25

3.19   Lord Hoffmann explained that the illegality defence is "not so much a principle as
       a policy".26 It is a policy based on not one but several justifications, which would
       vary in different circumstances. Therefore a rule which might be applicable in one
       area of the law would not necessarily be applicable in another. In particular, he
       had not found any discussion of Tinsley v Milligan and the reliance principle
       helpful in the context of the case before him.

       The House of Lords" decision in Stone & Rolls
3.20   The House of Lords handed down its judgment in Stone & Rolls v Moore
       Stephens in late July 2009.27 The case involved several issues, including the
       illegality defence.




       22
            [2009] UKHL 33 at [30]. This test was suggested by Bingham LJ in Saunders v Edwards
            [1987] 1 WLR 116, 1134.
       23
            The need for an "inextricable link" between the claim and the illegality was suggested by
            Judge LJ in Cross v Kirkby, The Times 5 April 2000 and adopted in subsequent cases, for
            example, Vellino v Chief Constable of the Greater Manchester Police [2002] 1 WLR 218.
       24
            [2009] UKHL 33 at [48].
       25
            Above at [51] to [55].
       26
            Above at [30] to [31].
       27
            [2009] UKHL 39.




                                                  45

3.21   The appellant company, Stone & Rolls, was managed and effectively controlled
       by Mr Stojevic. Moore Stephens, the defendants, acted as the auditors of Stone
       & Rolls. Unknown to Moore Stephens, Mr Stojevic used Stone & Rolls as a
       vehicle to defraud several banks. The most substantial fraud was committed
       against a Czech bank which eventually brought proceedings against Mr Stojevic
       and Stone & Rolls for deceit.28 In these proceedings both of the defendants were
       found liable. The effect of this judgment was that Stone & Rolls went into
       provisional liquidation. Stone & Rolls subsequently brought a concurrent action in
       contract and tort against Moore Stephens for their negligence in failing to detect
       Mr Stojevic's fraudulent activities at an earlier date.

3.22   Moore Stephens accepted that they owed Stone & Rolls a duty to exercise
       reasonable care and skill in carrying out their duties as auditors, and that they
       breached this duty by failing to detect the fraud. However Moore Stephens
       argued that the claim by Stone & Rolls could not succeed as it was founded on
       the fraud committed by Stone & Rolls. The first main issue was whether the
       fraudulent acts of Mr Stojevic could be attributed to Stone & Rolls as a company.
       The next issue was whether the illegality defence should bar the claim on the
       basis that Stone & Rolls would need to rely on Mr Stojevic's illegal acts to prove
       their claim.

3.23   The House of Lords held by a majority of three to two that the acts of Mr Stojevic
       should be attributed to Stone & Rolls and that illegality should bar the claim.
       However, the reasoning of the majority differed. Both Lord Walker and Lord
       Brown proceeded on the basis that, providing the acts of Mr Stojevic could be
       attributed to Stone & Rolls, the reliance principle should operate so as to bar the
       claim. Lord Phillips rejected the argument that the reliance principle should be
       applied automatically. However, he held that in this case the illegality did bar the
       claim. This was because Moore Stephens" duty did not extend to creditors. It
       extended only to protecting the company and its shareholders, and in this case
       these parties could not take advantage of that protection as they had acted
       fraudulently.

3.24   Of the minority, Lord Scott rejected the idea that the illegality defence had any
       application to the case. He argued that if Stone & Rolls were to succeed, the only
       parties to benefit would be the creditors who had been defrauded. Lord Mance
       did not consider the application of the reliance principle or the illegality defence at
       great length and decided the case on the other issues that were involved.




       28
            Komercni Banka As v Stone & Rolls Ltd [2002] EWHC 2263 (comm), [2003] 1 Lloyd's Rep 383.




                                               46

       Consequence of the House of Lords" decisions

       Gray v Thames Trains
3.25   The House of Lords" decision in Gray v Thames Trains makes it clear that in tort
       cases the illegality defence must be justified in terms of public policy. The judges
       rejected the mechanical use of a formal test based on which party must "rely on"
       or plead the illegality. We anticipate that the reasoning adopted by courts in
       deciding whether the illegality defence succeeds will therefore become more
       transparent. One clear ground on which the illegality defence may be applied is
       consistency. Lord Hoffmann and Lord Rodger drew support for this rationale from
       decisions of the Canadian Supreme Court, where the illegality defence has been
       strictly confined and limited to cases where "allowing the plaintiff's claim would
       introduce inconsistency into the fabric of the law".29 They also referred to an
       earlier decision of the New South Wales Court of Appeal which similarly used
       consistency as a reason to allow the defence.30

3.26   However, their Lordships made it clear that unlike the Canadian Supreme Court
       they did not consider consistency to be the only underlying rationale for the
       illegality defence. This would have resulted in a very narrow doctrine. Instead,
       Lord Hoffmann explained that the illegality defence is based upon a group of
       reasons, which vary in different situations.31 It seems that the courts are to look at
       a range of factors in deciding whether these policy issues apply. Certainly the
       moral culpability of the claimant is one of them. Lord Phillips reserved his position
       in a case where the claimant, although detained under the Mental Health Act
       1983, had not shown any significant responsibility for his offence.32 Another
       relevant factor is the seriousness of the illegality involved. For example, Lord
       Rodger suggested that the decision might have been different if the offence for
       which the claimant was convicted was trivial.33

       Stone & Rolls
3.27   Unlike Gray v Thames Trains, Stone & Rolls v Moore Stephens involved the
       consideration of issues other than illegality.34 This, coupled with the different
       reasoning used by each of their Lordships, makes this a harder case from which
       to extract general principles regarding the application of the illegality defence.




       29
            Hall v Hebert [1993] 2 SCR 159, 180 by McLachlin J. This was followed in British Columbia
            v Zastowny [2008] 1 SCR 27.
       30
            "If the law of negligence were to say, in effect, that the offender was not responsible for his
            actions and should be compensated by the tortfeasor, it would set the determination of the
            criminal court at nought. It would generate the sort of clash between civil and criminal law
            that is apt to bring the law into disrepute": State Rail Authority of New South Wales v
            Wiegold (1991) 25 NSWLR 500, 514 by Samuels JA.
       31
            [2009] UKHL 33 at [30].
       32
            Above at [15]. Lord Rodger and Lord Brown agreed with these reservations: [2009] UKHL 33 at [83] and [103].
       33
            Above at [83].
       34
            [2009] UKHL 39.




                                                     47

       THE APPLICATION OF THE ILLEGALITY DEFENCE
3.28   Again, the House of Lords appeared to reject the idea that the reliance principle
       should operate in a mechanical fashion. Lord Phillips made this point explicitly:

               I do not believe that it is right to proceed on the basis that the reliance
               test can automatically be applied as a rule of thumb. It is necessary to
               give consideration to the policy underlying the ex turpi causa in order
               to decide whether this defence is bound to defeat [Stone & Rolls"]
               claim.35

3.29   Lord Phillips identified the critical policy issue as whether the auditors had a duty
       to protect the creditors, for whose benefit the claim was brought.36 He concluded
       that they did not. The auditor's duty was only owed to the shareholders. In this
       case, the duty was only owed to Mr Stojevic, who was the sole will and mind and
       beneficial owner. Clearly, Mr Stojevic could not recover for his own fraud. It
       therefore followed that the illegality defence barred the claim.37

3.30   Lord Phillips observed that the central policy question ("whom did the auditor"s
       duty protect?") also appeared to underlie the reasoning of the other judges. Lord
       Walker and Lord Brown thought that the duty was owed for the benefit of
       shareholders but not creditors. On the other hand, Lord Mance considered that
       auditors should also protect the interests of creditors.38

3.31   Although Lord Brown and Lord Walker appeared to apply the illegality defence in
       a more mechanistic way, both conceded that this should not be done where
       different facts led to different policy considerations being relevant. For example
       Lord Brown said:

               I recognise, of course, that confining the ex turpi causa defence, as I
               would, to one man company frauds means that, where any innocent
               shareholders are involved, a claim against the auditors may well lie
               (through the company) at their suit-¦. A claim of that nature would
               seem to me to accord altogether more readily with the policies and
               principles generally understood to apply in this context.39




       35
            [2009] UKHL 39 at [25].
       36
            Above at [67].
       37
            Above at [86].
       38
            Above at [68].
       39
            Above at [203].




                                                48

3.32   It is difficult to anticipate what precedent, if any, Stone & Rolls will set regarding
       the illegality defence. Though there was a majority verdict, there was no majority
       reasoning, with all their Lordships reaching different conclusions on how the
       defence should be applied. However there was no general endorsement of the
       view that the illegality defence should always be applied so as to defeat a claim
       founded on an illegal act. The majority judges all confined their reasoning to
       cases of fraud committed by "one man companies", in which the beneficial
       owners were all implicit in the fraud. Furthermore, we are encouraged by the
       references made by their Lordships to the importance of considering the policies
       that underlie the application of the illegality defence.

       THE "VERY THING" PRINCIPLE
3.33   Following the reasoning of Lord Justice Buxton in Reeves v Commissioner of the
       Police of the Metropolis, it had been argued that where a party is under a duty to
       prevent a claimant from committing an illegal act and the claimant goes on to
       commit the very same illegal act, the claimant should always have remedy for the
       breach of duty notwithstanding the claimant's illegality.40 To do otherwise would
       render the duty nugatory. This has become known as the "very thing" principle. In
       Stone & Rolls it was argued that the "very thing" which the auditors were under a
       duty to do was to prevent the commission of fraud. They could not therefore rely
       on the very fraud which they were supposed to prevent to avoid liability for their
       breach of duty. All of their Lordships rejected this argument, save for Lord Scott.
       Lord Walker, Lord Brown and Lord Mance agreed that the "very thing" principle
       was no more than a principle of causation which was not in itself capable of
       preventing the application of the illegality defence. Thus, in the future, it is
       unlikely that the "very thing" principle will influence the use of the illegality
       defence in tort cases.

       Subsequent cases
3.34   Since Stone & Rolls v Moore Stephens and Gray v Thames Trains, two
       subsequent High Court decisions have applied the House of Lords" reasoning on
       illegality. In Nayyar v Denton Wilde Sapte41 the claimants sued solicitors for
       breach of contract and negligence. They sought damages for their failure to
       recover a deposit paid to a third party. The defendants argued that the deposit
       money amounted to a bribe and so the claim was barred by the illegality defence.
       Mr Justice Hamblen did not apply the reliance principle automatically but instead
       looked at the underlying policy, citing Lord Phillips" two policy principles from
       Stone & Rolls; that the court will not enforce a contract forbidden by statute or
       entered into with the intention of committing an illegal act, nor will it assist a
       claimant to recover a benefit from his own wrongdoing. He then proceeded to
       look at the degree of connection between the wrongful conduct, along with the
       seriousness of the offence. He concluded that bribery involves "serious moral
       turpitude" which was sufficient to bring the defence into play.42



       40
            [1999] QB 169.
       41
            [2009] EWHC 3218.
       42
            Above at [92].




                                             49

3.35   The second case, K/S Lincoln v CB Richard Ellis Hotels Ltd,43 was an application
       to strike out a paragraph of the defence which contained an allegation of unlawful
       tax evasion. Mr Justice Coulson again considered the policy basis of the illegality
       defence. He cited Lord Hoffmann's statement in Gray v Thames Trains that the
       maxim "ex turpi causa" expressed not so much a principle as a policy, based on a
       group of reasons which varied in different situations. He also cited Lord Phillips"
       explanation of the underlying policy from Stone & Rolls. He derived a number of
       general principles from recent authorities, and concluded that the underlying
       policy rationale for the illegality defence was one of deterrence:

               Although the test is no longer to ask if the public conscience is
               affronted by the allowance of such a claim (Tinsley v Milligan), it
               seems clear that the underlying principle or policy is one of
               deterrence; that the courts will not encourage illegal acts by allowing
               claims based upon them.44

3.36   These two cases are encouraging developments which indicate a willingness to
       move away from a mechanical application of the reliance principle and instead
       explore the relevant policy reasons which are at the heart of the defence. When
       deciding whether the illegal behaviour should bar the claim, the courts recognised
       the importance of the connection between the illegality and the claim, and the
       seriousness of the offence. The cases appear to confirm that incremental change
       is already taking place.

       Conclusion
3.37   In our 2009 consultative report, we argued that it was open to the courts to
       develop the law in ways that would render it considerably clearer, more certain
       and less arbitrary. Instead of purporting to apply rigid rules, the courts should
       consider each case to see whether the application of the illegality defence can be
       justified on the basis of the policies that underlie that defence. We did not think
       this would require a major alteration. The policy rationales were already found
       within the case law and the courts already apply them to do justice. All that was
       required was an incremental change, as courts became more prepared to
       articulate the policy reasons behind their decisions.

3.38   The decision in Gray v Thames Trains shows that this incremental change is
       already taking place. As Lord Hoffmann explained, the illegality defence is based
       upon a group of reasons, which vary in different situations. In each case, the
       policy reasons must be considered against the facts of the case. Stone & Rolls is
       a more difficult decision, but we do not think it is inconsistent with this approach.




       43
            [2009] EWHC 2344.
       44
            Above at [22].




                                              50

3.39   Gray v Thames Trains was a claim in tort and Stone & Rolls involved a
       concurrent claim in both contract and tort. However, there appears to be no
       reason why a similar approach might not be adopted in relation to claims for the
       reversal of unjust enrichment or indeed any other claims falling outside the strict
       remit of Tinsley v Milligan.45

3.40   In view of these trends within the case law, we do not think that legislative reform
       is needed outside the area of trust law.

3.41   We do not recommend legislative reform in relation to the illegality defence
       as it applies to claims for breach of contract, tort or unjust enrichment.

       CLAIMS TO RECOGNISE LEGAL PROPERTY RIGHTS
3.42   Where a legal interest in property is transferred under a contract that involves
       some element of illegality, ownership of the interest passes. The legal rights
       created by the contract will be recognised and enforced by the courts. This is the
       position despite the fact that, if the contract had not been executed, the illegality
       defence would have defeated any claim to enforce the contract.46 Once the
       contract has been completed, the illegality has no effect.

3.43   The same rule applies where the contract is for the transfer of a limited legal
       interest only - for example, a lease. The court will recognise that the limited
       interest has passed to the transferee.47 The position is slightly more difficult in
       relation to the transferor who is seeking to protect his or her reversionary interest
       on the termination of the limited interest. This looks much more like an attempt to
       enforce a contract. However, the courts will still protect such an interest, provided
       that the claimant can prove it without having to plead or "rely on" the illegality.

3.44   This rule, the same "reliance principle" which we have already discussed in
       relation to equitable interests, stems from a decision of the Court of Appeal in
       Bowmakers Ltd v Barnet Instruments Ltd.48 The defendants had hired tools from
       the claimant finance company under three separate hire purchase agreements.
       The agreements were part of an arrangement that contravened statutory pricing
       regulations and were assumed to be "illegal". After making some of the payments
       due under the agreements, the defendants refused to pay anything further. They
       sold the tools hired under two of the agreements and refused to return the tools
       hired under the third. The Court of Appeal found the defendants liable to the
       claimant for conversion in respect of all the tools, on the basis that the claimant
       could prove its reversionary interest without founding its claim on the illegal
       contract or pleading its illegality. This case shows that the way in which the courts
       have interpreted the reliance principle means that the illegal contract, once
       executed, is "past history" which can be ignored.




       45
            [1994] 1 AC 340.
       46
            Singh v Ali [1960] AC 167.
       47
            Feret v Hill (1845) 15 CB 207, 139 ER 4000.
       48
            [1945] KB 65.




                                                 51

3.45   This reliance principle is heavily enshrined in the law. Indeed in the House of
       Lords" decision in Tinsley v Milligan,49 their Lordships held that it was the only
       rule applicable when deciding the effect of illegality on the recognition and
       enforcement of all property rights generally, whether legal or equitable. In Part 2
       we have considered this rule in the trusts context in more detail, and indeed
       recommended its abolition in the trusts context.

3.46   In our 2009 consultative report we recognised that the possibility for common law
       development was limited in this area of the law. However, we also reported that it
       was clear from the responses that we received to our earlier 1999 consultation
       paper that generally the law was felt to be satisfactory here. Respondents told us
       that if the illegality defence had a greater role to play in relation to the recognition
       and enforcement of legal property rights this would cause unacceptable
       uncertainty and would be detrimental to the interests of third parties.

3.47   We do not recommend legislative reform of the illegality defence as it
       applies to claims to enforce legal interests created, transferred or retained
       under contracts involving some element of illegality.




       49
            [1994] 1 AC 340.




                                              52

       PART 4
      LIST OF RECOMMENDATIONS
4.1   We make the following recommendations:

     ILLEGALITY IN TRUSTS
4.2   Legislative reform is needed to provide the courts with a discretion to determine
      the effect of illegality on a limited class of trust. (Paragraph 2.22)

      WHEN SHOULD THE DISCRETION APPLY?

      Trusts created to conceal ownership for a criminal purpose
4.3   The statutory discretion should apply when the trust arrangement is created in
      order to conceal the beneficiary's interest in the trust property in connection with
      a criminal purpose.1 (Paragraph 2.32)

4.4   The statutory discretion should apply whether or not the criminal purpose has
      been acted upon. 2 (Paragraph 2.33)

4.5   The statutory discretion should apply whether it is the beneficiary or the trustee
      who intends to use the trust arrangement in order to conceal the real ownership
      of the trust property.3 (Paragraph 2.34)

4.6   The statutory discretion should apply when the trust arrangement is created for
      other purposes in addition to the concealment of the real ownership.4 (Paragraph
      2.35)

      Trusts subsequently used to conceal ownership for a criminal purpose
4.7   The discretion should apply where the intention to use the trust arrangement to
      conceal the beneficial ownership for a criminal purpose is formed after the trust
      was created. However, it should be limited to cases where:

          (1)    the beneficiary has taken steps to ensure that the trust arrangement
                 continues in place so that the concealment can be made; and

          (2)    the criminal purpose has been carried out either by the beneficiary or by
                 somebody with the beneficiary's consent.5 (Paragraph 2.42)

      Other recommendations on when the discretion should apply
4.8   The statutory discretion should apply even where the parties did not realise that
      the concealment would be criminal and where there has not been any
      prosecution.6 (Paragraph 2.48)

      1
           See clause 2(2) of the draft Bill.
      2
           See clause 2(2) of the draft Bill.
      3
           See clause 2(3)(a) of the draft Bill.
      4
           See clause 2(3)(b) of the draft Bill.
      5
           See clause 2(4) of the draft Bill.



                                                   53

 4.9   The statutory discretion should apply when the concealment of the beneficial
       ownership would itself constitute a criminal offence.7 (Paragraph 2.49)

4.10   The statutory discretion should apply whichever type of trust is in issue.8
       (Paragraph 2.50)

4.11   The statutory discretion should apply to cases both where the settlor and
       beneficiary are the same person and to cases where the settlor and beneficiary
       are different.9 (Paragraph 2.53)

       HOW THE DISCRETION SHOULD OPERATE

       A declaration of entitlement
4.12   The first step that the court should take in relation to a trust to which the
       discretion applies is to declare that the intended beneficiary is entitled to the
       equitable interest.10 (Paragraph 2.57)

       The need for exceptional circumstances
4.13   The illegality should only have an effect on the beneficial entitlement under the
       trust when the court considers that there are exceptional circumstances.11
       (Paragraph 2.61)

       The factors the court may take into account when exercising its discretion
4.14   The legislation should provide a non-exhaustive list of the factors that might be
       relevant for the court to take into account when exercising its discretion to
       determine that the beneficiary ought not to be allowed to enforce the equitable
       interest.12 (Paragraph 2.79)

4.15   We recommend that those factors should be:

            (1)    the conduct and intention of all of the relevant parties;

            (2)    the value of the equitable interest at stake;

            (3)    the effect of allowing the claim on the criminal purpose;

            (4)    whether refusing the claim would act as a deterrent; and

            (5)    the possibility that the person from whom the equitable interest was
                   being concealed may have an interest in the value of the assets of the
                   beneficiary. (Paragraph 2.80)

       6
             See clause 2(5)(a) and (c) of the draft Bill.
       7
             See clause 2(6) of the draft Bill.
       8
             See clause 1(4)(b) of the draft Bill.
       9
             See clause 2 of the draft Bill.
       10
             See clause 3(1) of the draft Bill.
       11
             See clause 4(1) of the draft Bill.
       12
             See clause 5(1) of the draft Bill.



                                                      54

       THE CONSEQUENCES OF THE COURT'S DECISION

       No power to allow the beneficiary to enforce on special terms
4.16   We do not recommend that the court should be given a discretionary power to
       determine that the beneficiary ought to be allowed to enforce the equitable
       interest only on terms that require the beneficiary to make a payment or transfer
       property to a third party. (Paragraph 2.86)

       Where the court determines that the beneficiary may not enforce the trust
4.17   In cases where the intended beneficiary and settlor are the same, we recommend
       that, if the court determines that the beneficiary ought not to be allowed to
       enforce the equitable interest, then it must make a declaration to that effect and
       declare in whom the equitable interest is now to be vested.13 (Paragraph 2.94)

4.18   In cases where there is more than one beneficiary or the intended beneficiary
       and settlor are different people, we recommend that, if the court determines that
       the intended beneficiary ought not to be allowed to enforce the equitable interest,
       then it must determine who ought to become entitled to the interest instead. This
       may be either the legal owner, the settlor or any other beneficiary.14 (Paragraph
       2.99)

       Where the original beneficiary has disposed of the equitable interest
4.19   In those cases where the claimant purports to have acquired the equitable
       interest from the original intended beneficiary of a trust to which the discretion
       applies, the court should declare that that beneficiary was entitled to the equitable
       interest, but that if the circumstances are exceptional, the discretion will apply to
       determine whether the beneficiary ought to have been allowed to enforce that
       interest.15 (Paragraph 2.102)

       INTERACTION WITH OTHER LEGAL RULES

       Statutory provisions
4.20   The discretion should not apply where a statute provides that the trust is void or
       otherwise ineffective as a consequence of the illegality arising from a breach of
       one of its provisions. (Paragraph 2.106)

       Rules of common law or equity
4.21   Where the discretion applies, it should be the sole determinant of the effect of the
       illegality. (Paragraph 2.109)

       Severance
4.22   The statutory discretion should not apply to cases where it is possible under
       general trust principles to sever the terms tainted by illegality from the trust.
       (Paragraph 2.114)


       13
            See clause 4 of the draft Bill.
       14
            See clause 4 of the draft Bill.
       15
            See clauses 1(2), 3(2) and 4(1) of the draft Bill.



                                                     55

       Proceeds of Crime Act 2002
4.23   Amendments should be made to the Proceeds of Crime Act 2002 to ensure that
       where the court exercises its discretion to determine that the beneficiary may not
       enforce the trust, there should be no adverse impact on the right of the State to
       recover the proceeds of crime.16 (Paragraph 2.121)

       Offences under foreign law
4.24   The proposed discretion should apply where the concealment of the equitable
       interest was for the purpose of:

            (1)    an offence under the law of England and Wales; or

            (2)    an offence under the law of the country where the conduct element of the
                   offence was, or was intended to be, carried out (whether or not it would
                   also constitute an offence under the law of England and Wales).17
                   (Paragraph 2.126)

       COMMENCEMENT AND EXTENT

       Application of the discretion to existing trusts
4.25   The statutory discretion should apply to all trusts within its scope whenever
       created, but that there should be a substantial period of time (say, one year)
       between the date of enactment of the provisions of the Bill and their coming into
       force.18 (Paragraph 2.131)

       ILLEGALITY AND OTHER CLAIMS
4.26   We do not recommend legislative reform in relation to the illegality defence as it
       applies to claims for breach of contract, tort or unjust enrichment. (Paragraph
       3.41)

4.27   We do not recommend legislative reform of the illegality defence as it applies to
       claims to enforce legal interests created, transferred or retained under contracts
       involving some element of illegality. (Paragraph 3.47)



                                                       (Signed) JAMES MUNBY, Chairman
                                                                       ELIZABETH COOKE
                                                                        DAVID HERTZELL
                                                                        JEREMY HORDER
                                                                  FRANCES PATTERSON


       MARK ORMEROD, Chief Executive
       10 February 2010

       16
             See clause 6 of the draft Bill.
       17
             See clause 2(7) of the draft Bill.
       18
             See clause 7 of the draft Bill.



                                                  56

APPENDIX A
DRAFT TRUSTS (CONCEALMENT OF INTERESTS) BILL




                57

Trusts (Concealment of Interests) Bill                                                      1



                                             DRAFT

                                              OF A

                                              BILL

                                               TO


Make provision about cases where arrangements in respect of property have
been made, or continued, so as to enable an equitable interest in the property
to be concealed in connection with the commission of an offence.



BE IT ENACTED  by the Queen's most Excellent Majesty, by and with the advice and
               consent of the Lords Spiritual and Temporal, and Commons, in this present
               Parliament assembled, and by the authority of the same, as follows:-


1          Application of this Act
    (1)     Sections 3 to 5 of this Act apply if in any proceedings-
              (a) there is a dispute about the entitlement of a person (in this Act referred
                   to as "B") to an equitable interest under a trust of any property,
              (b) the court is satisfied that the arrangements made in respect of the             5
                   property are such that B is entitled to an equitable interest in it, or
                   would be so entitled if reliance on an unlawful act or purpose were
                   allowed, and
              (c) the court is also satisfied that either of the concealment conditions set
                   out in section 2 is satisfied in relation to the arrangements, or that both   10
                   of them are.
    (2)     The dispute may be about a past entitlement (for example, where B has died),
            and in that case the references in paragraphs (b) and (c) of subsection (1) to the
            arrangements and the concealment conditions are to be read as if they referred
            not to the present but to the relevant time in the past.                             15
    (3)     For the purposes of this Act it does not matter-
              (a) whether or not it appears to the court that there are, or were, or would
                    be or would have been, any other equitable interests in the property;
              (b) whether or not anyone knew that a trust would be or had been
                    established, or established at any particular time.                          20
    (4)     In this Act-




                                               58

2                                                             Trusts (Concealment of Interests) Bill

             (a)   references to arrangements, in relation to property in which there is an
                   equitable interest, include setting up a trust expressly;
             (b)   "trust" means any description of trust;
             (c)   "property" includes anything capable of being held on trust.

2         Concealment conditions                                                                        5
    (1)    The concealment conditions are as follows.
    (2)    The first condition is that the arrangements mentioned in section 1(1)(b) were
           made in order to enable B's interest in the property to be concealed in
           connection with the commission of an offence (whether or not an offence has
           in fact been committed).                                                                    10
    (3)    For the purposes of the first condition, the following do not matter-
             (a) whether or not the purpose mentioned in subsection (2) was shared by
                   all the relevant parties;
             (b) whether or not the arrangements were also made for another purpose.
    (4)    The second condition is that since the arrangements mentioned in section                    15
           1(1)(b) were made-
             (a) B has taken steps to secure that the arrangements continue in being,
                   with the intention of enabling them to be exploited in order to conceal
                   B's interest in the property in connection with the commission of an
                   offence, and                                                                        20
             (b) B, or another person with B's consent or connivance, has so exploited
                   them.
    (5)    For the purposes of this section it does not matter-
             (a) whether or not anyone knew that an act (or intended act) of
                   concealment involved (or would involve) committing an offence;                      25
             (b) whether or not it was B who would have committed an offence;
             (c) whether or not anyone has been or is to be prosecuted for an offence.
    (6)    In this section-
             (a) concealment in connection with the commission of an offence includes
                    the case where the concealment would itself involve committing an                  30
                    offence;
             (b) concealment includes failure to disclose in circumstances where there
                    is a duty to disclose.
    (7)    In this section, references to an "offence" are to-
             (a) an offence under the law of England and Wales, and                                    35
             (b) an offence under the law of any other part of the United Kingdom, or
                    the law of any other country or territory, where all or any part of the
                    conduct element of the offence was to occur, or would have occurred.

3         Declaration of entitlement
    (1)    Where this section applies (see section 1(1)), the court must declare that                  40
           (notwithstanding an unlawful act or purpose, if any)-
             (a) B is entitled to the relevant equitable interest, or
             (b) in the case mentioned in section 1(2), B was at the relevant time entitled
                  to it.




                                              59

Trusts (Concealment of Interests) Bill                                                       3

    (2)    In this section (and in sections 4 and 5), "the relevant equitable interest" means
           the interest which by virtue of section 1(1)(b) the court has satisfied itself that
           B is (or was) entitled to (or would be, or would have been, entitled to, if reliance
           on an unlawful act or purpose were allowed).

4         Court's further powers                                                                   5
    (1)    If in the court's opinion the circumstances are exceptional, the court may (in
           addition to making a declaration under section 3) also determine in the light of
           the exceptional circumstances-
              (a) that B ought not to be allowed to enforce the relevant equitable interest,
                   or in the case mentioned in section 1(2) ought not at the relevant time        10
                   to have been allowed to enforce it, and
              (b) that, instead of B, a person mentioned in subsection (4) ought to become
                   entitled to the relevant equitable interest, or in the case mentioned in
                   section 1(2) ought at the relevant time to have become entitled to it.
    (2)    If the court makes a determination under subsection (1), it must determine in          15
           whom the relevant equitable interest is accordingly now to be vested.
    (3)    A determination under subsection (1)(b)-
             (a) may not include a person from more than one paragraph of subsection
                  (4), but
             (b) includes all the persons of the relevant description, in such shares as the      20
                  court determines, if there is more than one such person.
    (4)    The persons are the following, not including any of them who is also B, or in
           the case mentioned in section 1(2) was also B at the relevant time-
             (a) the trustee;
             (b) the settlor;                                                                     25
             (c) any beneficiary under the same trust.
    (5)    In this section "the relevant equitable interest" has the meaning given by
           section 3(2).

5         Sections 3 and 4: supplementary
    (1)    In making any determinations under section 4, the court may take anything              30
           which it thinks relevant into account, including (for example)-
             (a) the conduct of all the relevant persons;
             (b) the effect which the declaration or determination would have on any
                  relevant unlawful act or purpose;
              (c) the fact that an offence has, or has not, been committed;                       35
             (d) the value of the relevant equitable interest;
             (e) any deterrent effect on others;
              (f) the possibility that a person from whom the relevant equitable interest
                  was to be concealed might have an interest in the value of B's assets (for
                  example, as a creditor of B or because of proceedings under the                 40
                  Matrimonial Causes Act 1973 or the Civil Partnership Act 2004).
    (2)    The court may make any order which it thinks appropriate-
             (a) to give effect to a declaration under section 3 or a determination under
                  section 4, and




                                               60

4                                                                Trusts (Concealment of Interests) Bill

             (b)   to deal with any ancillary matters which the court thinks should be
                   dealt with.
    (3)    In this section "the relevant equitable interest" has the meaning given by
           section 3(2).

6         Amendments of Proceeds of Crime Act 2002                                                         5
    (1)    The Proceeds of Crime Act 2002 is amended as follows.
    (2)    After section 78 insert-
           "78A Determinations under Trusts (Concealment of Interests) Act 2010
             (1)   This section applies to proceedings under this Part if it has been
                   determined under section 4(1)(b) of the Trusts (Concealment of                         10
                   Interests) Act 2010 that, instead of the defendant, another person-
                     (a) ought to become entitled to an equitable interest in any
                           property, or
                     (b) ought at some previous time to have become entitled to such an
                           interest.                                                                      15
             (2)   The defendant is to be treated as having made a gift of the equitable
                   interest, and the other person is to be treated as the recipient of that gift.
             (3)   The gift is to be treated as having been made-
                     (a) in a case within paragraph (a) of subsection (1), at the time at
                           which the equitable interest becomes vested in the other person                20
                           pursuant to the determination, and
                     (b) in a case within paragraph (b) of that subsection, at the time
                           mentioned in that paragraph."
    (3)    In section 308 (cases in which property is not recoverable for the purposes of
           Part 5 of that Act), at the end add-                                                           25
           "(11)   Nothing in this section is to be read as providing for any property to
                   cease to be recoverable as a result of anything done in pursuance of the
                   Trusts (Concealment of Interests) Act 2010."
    (4)    In section 314(3) (disposing of property), after "law," insert "or in pursuance of
           the Trusts (Concealment of Interests) Act 2010,".                                              30

7         Short title, application, commencement and extent
    (1)    This Act may be cited as the Trusts (Concealment of Interests) Act 2010.
    (2)    This Act applies whether the trust referred to in section 1 came into existence
           before or after the coming into force of the Act.
    (3)    This Act comes into force at the end of the period of 12 months beginning with                 35
           the day on which it is passed.
    (4)    This Act extends to England and Wales only.




                                                61

      APPENDIX B
      EXPLANATORY NOTES ON THE DRAFT BILL

      BACKGROUND
B.1   A person who wishes to hide the fact that he or she is the owner of property may
      use a trust arrangement in order to do so. For example, he or she may transfer
      the legal title to property into the name of another, or purchase property in
      another's name, but with the intention that the recipient should (secretly) hold the
      property on trust for him or herself. This separation of the legal and equitable
      interests permits the true ownership to be concealed. The concealment may be
      for perfectly legitimate reasons. However, it can also be for criminal reasons.
      Examples can be found in case law of parties entering into this type of
      arrangement in order to evade tax,1 make false benefits claims2 and hide assets
      from creditors.3 This Bill determines whether such criminal purpose or conduct
      should have any effect on the beneficiary's entitlement to the trust property.

      THE BILL
B.2   The purpose of this Bill is to abolish, in defined circumstances, the rule laid down
      by the House of Lords in Tinsley v Milligan4 that a claimant may not lead or rely
      on evidence of any illegality in order to establish an equitable interest under a
      trust. This rule, frequently referred to as the "reliance principle", is generally
      regarded as arbitrary and unjust. The operation of this rule does not always
      prevent the beneficiary from being entitled to an equitable interest, even where
      he has behaved unlawfully, but exceptionally it may do so, in circumstances
      which have nothing to do with the justice of the case.

B.3   Where the Bill abolishes the operation of the reliance principle it replaces it with a
      discretion on the part of the court to determine that the beneficiary ought not to
      be allowed to enforce the equitable interest. The Bill does not apply to all trusts
      that are in some way tainted by illegality. It only applies where the trust was
      created, or subsequently continued, in order to conceal the true beneficial
      ownership of the trust property in connection with the commission of an offence.

      COMMENTARY ON THE CLAUSES

      Clause 1
B.4   This clause sets out the precise circumstances in which the discretion applies.




      1
          SMQ v RFQ and MJQ [2008] EWHC 1874 (Fam), [2009] 1 FLR 935.
      2
          Tinsley v Milligan [1994] 1 AC 340.
      3
          Tribe v Tribe [1996] Ch 107, 128.
      4
          [1994] 1 AC 340.




                                                62

      Subsection (1) paragraphs (a) and (b)
B.5   The discretion applies where there is a dispute in relation to a beneficiary"s
      interest in trust property but the court is satisfied that the beneficiary is entitled to
      the interest, or would be entitled to it if he or she could rely on an unlawful act or
      purpose in order to prove the claim.

B.6   Under the present law laid down by the House of Lords in Tinsley v Milligan,5 a
      claimant is not allowed to rely on any unlawful conduct or purpose in order to
      prove his or her equitable interest under a trust. This rule is known as the
      "reliance principle". It means that where the beneficiary is able to take advantage
      of a legal presumption in order to establish his or her interest (such as the
      presumption of a resulting trust) the court will enforce the trust. However, where
      the beneficiary does not benefit from such a presumption the trust will not be
      enforced if the beneficiary needs to lead evidence of any illegality in order to
      prove its existence. This will depend on the precise nature of the evidence and
      how closely any illegality is tied up with it. This rule is widely perceived as
      arbitrary and unfair. Its operation is effectively removed for trusts that come within
      the scope of the Bill.

B.7   Under this subsection, the court is required to consider first whether the
      beneficiary is entitled to the interest under general trust rules, but ignoring the
      reliance principle. The court can therefore consider all the available evidence,
      regardless of its connection to any illegality.

             For example, Mr A (who is still married to Mrs A) and Ms B want to
             buy a home together. They contribute equally to its purchase price
             and intend to own it jointly. However, before completing the
             documents necessary for the registration of its legal title, Mr A says to
             Ms B: "Although we both intend to have an equal share in the house,
             let's keep my name off the registered title. That way, if my wife brings
             proceedings for ancillary relief against me, I can conceal my interest
             in the house from her". Ms B agrees. The relationship crumbles. Ms B
             seeks to eject Mr A from the house relying on her legal title. Mr A
             claims that he is entitled to a half share of the beneficial interest
             under a common intention constructive trust.6

             Under the reliance principle, it is unlikely that Mr A would be entitled
             to rely on his conversation with Ms B in order to prove their common
             intention to share the equitable interest in the house because it would
             involve relying on his unlawful purpose of defrauding his wife. Under
             clause 1(1)(b) the court must consider if it is satisfied that he would
             be entitled to the equitable interest if he could rely on that evidence.




      5
          [1994] 1 AC 340.
      6
          For a case based on similar facts see Lowson v Coombes [1999] Ch 373.




                                              63

       Subsection (1) paragraph (c)
 B.8   Once the court has determined (without the reliance principle) that the beneficiary
       is entitled to the interest under general trust rules, it must look at the purpose of
       the arrangements which created the trust, or the purpose behind continuing those
       arrangements. The Bill only applies where the trust was created or continued in
       being in order to conceal the equitable interest in connection with the commission
       of an offence. These are referred to as the "concealment conditions" and are set
       out in more detail in clause 2.

 B.9   The Bill abolishes the application of the reliance principle for cases that fall within
       its scope. However, the Bill is not intended to abolish the application of the
       reliance principle in all trust cases. In most instances, particularly where any
       illegality involved is merely incidental and quite possibly inadvertent, the reliance
       principle has no substantive effect. It was felt that its abolition and replacement
       with a discretion in all trust cases that involve any element of illegality could result
       in widespread uncertainty. Should any sanction for the unlawful behaviour be
       necessary, this can be left to the criminal law to deal with. The Bill therefore only
       applies where the illegality is central to the purpose of the trust.

       Subsection (2)
B.10   Subsection (2) caters for circumstances where a person claims an interest in the
       trust property through the original beneficiary of the trust referred to in subsection
       (1). The claimant might be, for example, the heir or assignee of the original
       beneficiary. The discretion will apply in relation to that claimant's claim.

              For example, Mrs S transfers the bulk of her savings into a bank
              account in the name of her grandchildren. She does not intend to give
              the money to them, but to retain it for her own use. She claims state
              benefits on the false basis that she has no capital of her own. When
              Mrs S dies, her personal representatives seek to recover the funds in
              the bank account on behalf of the estate on the basis that the
              grandchildren held them on a resulting trust for Mrs S.7

              The dispute between the personal representatives and the
              grandchildren is about the past entitlement of Mrs S to an equitable
              interest in the funds in the bank account and so falls within subsection
              (2). The court must therefore determine whether it is satisfied that,
              ignoring the reliance principle, Mrs S was entitled to the equitable
              interest and whether the concealment conditions are satisfied. If so,
              the discretion will apply to determine whether the grandchildren can
              now claim the funds held in their name.




       7
           For a case based on similar facts see Silverwood v Silverwood (1997) 74 P & CR 453.




                                                64

       Subsection (3)
B.11   This subsection provides for two circumstances in which the Bill will apply.
       Paragraph (a) provides that the Bill applies whether or not the beneficiary is
       claiming the whole equitable interest in the trust property. In many instances this
       will not be the case. For example, the person holding the legal title may also be
       beneficially interested in the trust property.

B.12   Paragraph (b) provides that the Bill applies whether or not the parties realised
       that their arrangements constituted a trust. This is important particularly in the
       case of constructive trusts where it may be difficult to determine whether, and if
       so, when, a trust has come into existence.

       Clause 2

       Subsection (1)
B.13   As we have seen, the Bill does not apply to all trusts that are currently affected by
       the reliance principle. Clause 2 sets out the "concealment conditions" referred to
       in clause 1. Generally the Bill only applies where the trust was created, or has
       been continued, in order to conceal the ownership of the equitable interest in
       connection with the commission of an offence.

B.14   There are two concealment conditions and the Bill applies where either (or both)
       conditions are satisfied.

       Subsection (2)
B.15   The first concealment condition, set out in subsection (2), applies where the trust
       was created in order to conceal the beneficiary's interest for the purpose of
       committing an offence.

              For example, a father is concerned that his business is doing badly
              and that his creditors may seek recovery against his assets. He
              therefore transfers these assets into the name of his son, but on the
              understanding that the son is to hold them on trust for the father and
              return them to him when asked.8 The first concealment condition is
              satisfied. The trust was created in connection with the father"s
              intention to defraud his creditors.

B.16   The Bill applies whether or not the offence was in fact committed.

       Subsection (3)
B.17   Subsection (3) provides that the first concealment condition may apply whether or
       not all the parties were aware of the criminal purpose of one of them. For
       example, in some cases the trustee may be complicit in the beneficiary"s
       fraudulent scheme, but in others the trustee will be an unwitting party.




       8
           For a case based on similar facts see Tribe v Tribe [1996] Ch 107.




                                                 65

B.18   The first concealment condition may also be satisfied when the arrangements
       have another purpose besides the concealment. For example, a home may have
       been purchased in the name of one person in order to allow the other more easily
       to make fraudulent benefits claims, but another purpose of the purchase may
       have been to provide a home for the parties.

       Subsection (4)
B.19   The second concealment condition, set out in subsection (4), is relevant when the
       trust was not initially created for the purposes of committing the offence, but the
       arrangements have subsequently been deliberately continued to conceal the
       equitable interest for such a purpose. The second concealment condition is
       narrow in scope. The beneficiary must have carried out some deliberate act to
       continue the trust arrangement for the purpose of concealing his or her equitable
       interest for the commission of an offence. It is not sufficient that the beneficiary
       has simply taken advantage of the pre-existing trust arrangement in order to
       commit an offence. He or she must have taken steps to continue the
       arrangement for this purpose.

             For example, a taxpayer may hold shares under a trust arrangement.
             This is a common method of shareholding, the legal title being
             registered in the name of a nominee. Believing that his dishonesty is
             less likely to be discovered because he does not hold the registered
             title, a taxpayer may conceal his interest on a tax return and thereby
             fraudulently avoid tax. This would not bring the trust within the scope
             of the Bill because neither concealment condition is satisfied. The
             second concealment condition is only met where the beneficiary has
             deliberately taken steps to continue the arrangement, in
             circumstances when it would otherwise have been ended, in order to
             commit the offence.

B.20   In addition, the relevant concealment in connection with the offence must actually
       have been made either by the beneficiary, or by another person with the
       beneficiary's consent or connivance.

       Subsection (5)
B.21   This subsection lists a number of factors that are not taken into account when
       determining whether the concealment conditions are satisfied. It is not relevant
       whether or not the parties were aware that concealing the ownership of the
       equitable interest in the relevant circumstances would be a criminal offence.

B.22   It is not relevant whether or not it was the beneficiary who was to commit an
       offence. The relevant case law shows that it is usually the beneficiary who
       intends to conceal his or her interest in order to commit the offence. However,
       this will not always be the case. A trust may also be used to inflate artificially the
       wealth of the trustee for fraudulent purposes.




                                             66

               For example, at the request of the directors of a company, Mr A
               transfers funds into the bank account of the company, intending that
               the company should hold the money on trust for him. However, the
               intention is to enable the company to give a false impression of its
               creditworthiness and so attract investors on a fraudulent basis.9

B.23   It is not relevant whether or not there has been, or will be, any criminal
       prosecution.

       Subsection (6)
B.24   The purpose of paragraph (a) is to make clear that the concealment itself may
       constitute the offence. This would be the case where a party was under a legal
       duty to disclose the ownership of the equitable interest and failed to do so. For
       example, when completing a tax return or benefits claim form, a person is under
       a legal duty to disclose all his or her relevant assets. In other cases, the
       concealment itself will not constitute the offence. However, the parties may want
       to hide the real ownership for other criminal purposes. In Tinsley v Milligan, Lord
       Goff gave by way of example cases in which a group of terrorists, or armed
       robbers, secure a base for their criminal activities by buying a house in the name
       of a third party not directly implicated in those activities.10 Both these scenarios
       are included within the Bill.

       Subsection (7)
B.25   This subsection provides for what is to count as an "offence" for the purposes of
       the Bill. The Bill applies where the relevant conduct constitutes an offence under
       the law of England and Wales, wherever that conduct takes, or is intended to
       take, place. The Bill also applies where an offence would be committed under the
       law of any country where all or any part of the conduct element of the offence
       occurred or was to occur, whether or not it would also constitute an offence under
       the law of England and Wales.

       Clause 3
B.26   Clauses 3, 4 and 5 set out the obligations and powers of the court when the Bill
       applies.

       Subsection (1)
B.27   Where the Bill applies, the court must declare that the beneficiary is entitled to
       the equitable interest in the trust property. At this stage the illegality is therefore
       ignored.

B.28   Where the present claimant is a person claiming through the original beneficiary,
       the court must declare that the original beneficiary was entitled to the equitable
       interest in the trust property at the relevant time. Again, at this stage the illegality
       is ignored.

       9
            For a case based on similar facts see Re Great Berlin Steamboat Company (1884) 26 Ch
            D 616.
       10
            [1994] 1 AC 340, 362.




                                                67

B.29   Such a declaration is required in order to cure a circularity that would otherwise
       arise between the interaction of the criminal and civil law. If the court were simply
       to determine that the beneficiary was not entitled to the relevant equitable
       interest, then the beneficiary would not have committed any offence by
       concealing it. Therefore no prosecution could be brought against him and criminal
       confiscation proceedings for the recovery of any benefits gained would be
       unsuccessful. The purpose of the Bill is not to legitimise retrospectively any
       criminal behaviour.

       Clause 4

       Subsection (1)
B.30   However, where the court is of the opinion that the circumstances are
       exceptional, the court may also exercise its discretion to determine (a) that the
       beneficiary ought not to be allowed to enforce the relevant equitable interest and
       (b) who ought to become entitled to it instead. Where the claimant is claiming
       through the original beneficiary of a trust which falls within the Bill, the court may
       exercise its discretion to determine that that original beneficiary ought not to have
       been allowed to enforce the equitable interest and who ought to have become
       entitled to it instead. In determining who ought to (or ought to have) become
       entitled to the interest the court must select a person from the list set out in
       subsection (4).

B.31   Although the Bill sets out (in clause 5) some of the factors that the court may take
       into account in making its determination, it does not specify what the exceptional
       circumstances might be that might lead it to make a determination under
       subsection (1). However, we anticipate that the circumstances might be
       exceptional where, for example, the claimant's behaviour has been particularly
       reprehensible, and he or she has benefited from it and has not been deprived of
       those gains as a result of the application of any other legal principle.

       Subsection (2)
B.32   Where the court makes a determination under subsection (1) that the beneficiary
       ought not to be allowed to enforce the relevant equitable interest and that another
       person ought to become entitled to it, it is required by subsection (2) to determine
       in whom the interest is now to be vested. This avoids the uncertainty that exists
       under the present law where the reliance principle operates to prevent the
       beneficiary from succeeding in his or her claim. There are some judicial
       comments which suggest that the reliance principle creates merely a procedural
       personal disentitlement affecting the beneficiary, but does not operate to alter the
       substantive interests in the trust.11 However, in other cases it has been assumed
       that where the beneficiary cannot enforce the trust, the trustee is entitled to the
       beneficial as well as legal ownership in the trust property.12




       11
            See, for example, Tinsley v Milligan [1994] 1 AC 340, 374, by Lord Browne-Wilkinson.
       12
            See, for example, SMQ v RFQ and MJQ [2008] EWHC 1874 (Fam), [2009] 1 FLR 935 at
            [139], by Black J.




                                                  68

       Subsections (3) and (4)
B.33   The court may not determine that any person whosoever is entitled to the
       equitable interest. It may only select from those on the list set out in subsection
       (4). These are the trustee, the settlor, and any beneficiary under the same trust.
       Where more than one person falls into any one of these categories, the interest is
       to be split between them as the court thinks fit.

B.34   In many of the reported cases which involve the application of the reliance
       principle, there are only two parties involved in the trust. This is because the
       settlor and beneficiary are the same person (or, in the case of resulting and some
       constructive trusts, the contributor/transferor and beneficiary). Where the court
       declares that the beneficiary ought not to be allowed to enforce the equitable
       interest, the only option for the court is to determine that the trustee ought to
       become the beneficial owner instead.

B.35   However, there may be more parties involved in the trust, and therefore more
       persons whom the court might potentially determine ought to become entitled to
       the equitable interest. Where the settlor and beneficiary are different persons, the
       court may feel that it is sufficient to undo the effects of the illegal conduct or
       purpose if the trust is effectively unwound and the trust property returned to the
       settlor. In other cases, there may be a number of other beneficiaries, and, for
       example, where these beneficiaries are not tainted by the illegal purpose, the
       court may declare that any or all of them ought to become entitled to the interest.

       Clause 5

       Subsection (1)
B.36   This subsection provides that the court may take anything which it thinks relevant
       into account in making a determination under clause 4, but also sets out a list of
       factors as examples of what might be relevant in any particular case.

B.37   Paragraph (f) guides the court towards taking into consideration the position of
       the person from whom the equitable interest was being concealed - that is the
       intended "victim" of the trust arrangement. This person may have an interest in
       the value of the assets of the beneficiary. Indeed it may be because of a potential
       claim by this person that the beneficiary set up the trust arrangement in the first
       place. In making its determination under the discretion, the court may therefore
       want to consider whether that interest would be unduly prejudiced if the
       beneficiary were not allowed to enforce the trust.




                                            69

               For example, a brother (T) goes bankrupt. T enters into an
               arrangement with his brother (J) for J to buy T's home from T"s
               trustee in bankruptcy. T continues to live in the home, carries out
               repairs and renovations, and pays all the contributions towards the
               mortgage that J takes out in order to purchase the home. The
               purpose of the arrangement is for T to conceal his interest in the
               home from his trustee in bankruptcy. J sells the home and disputes
               T's claim to be entitled to the proceeds. In deciding whether or not to
               allow T to enforce the equitable interest, the court can take into
               account the fact that if T were to succeed it would be open to the
               trustee in bankruptcy to claim the interest for the benefit of the
               estate.13

       Subsection (2)
B.38   The purpose of this subsection is to provide the court with the necessary powers
       to make such orders as are appropriate to give effect to its declarations and
       determinations. What orders the court makes will depend on exactly what remedy
       or relief the claimant is seeking.

       Clause 6
B.39   This clause makes amendments to the Proceeds of Crime Act 2002 in order to
       ensure that anything done in pursuance of this Bill does not prejudice the State"s
       ability to confiscate or recover property under the provisions of that legislation.

       Subsection (2)
B.40   Under Part 2 of the Proceeds of Crime Act 2002 where the defendant is
       convicted of an offence, the Crown Court may make a confiscation order,
       designed to deprive the criminal of the benefits of his or her crime. The order may
       not be for more than "the available amount".14 In assessing the available amount,
       the court must include the total value of all property held by the defendant and all
       "tainted gifts" made by the defendant.15 The effect of subsection (2) is to treat as
       a gift made by the defendant, the value of any equitable interest that the court
       has determined a person other than the defendant ought to become entitled to.
       Where the necessary conditions set out in Part 2 of the Proceeds of Crime Act
       2002 are met, this gift may be a "tainted gift" and so the value of the interest can
       then be included as part of the defendant's available assets for the purposes of
       any confiscation order.




       13
            For a case on similar facts see Barrett v Barrett [2008] EWHC 1061 (Ch), [2008] All ER
            233.
       14
            Proceeds of Crime Act 2002, section 9.
       15
            Proceeds of Crime Act 2002, sections 77 to 78.




                                                  70

               For example, a thief is concerned that the police might catch up with
               him. He therefore transfers the legal title to his property into the name
               of his wife, intending secretly to retain the beneficial interest for
               himself, but hoping to prevent the property from being confiscated by
               the authorities. His wife later claims the property for herself and the
               thief brings an action against her claiming that it is held on trust for
               him. The court considers that the case is exceptional and determines
               that the thief ought not to be allowed to enforce his interest and that
               the wife ought to become entitled to the equitable interest in the
               property. The court orders that the equitable interest in the property is
               now to be vested in the wife.

               The thief is subsequently convicted of his crimes and a confiscation
               order is to be made under Part 2 of the Proceeds of Crime Act 2002.
               In assessing the thief's available assets, the thief is treated as having
               made a gift to his wife of the equitable interest in the property. If made
               within the necessary time limits, it will therefore be a tainted gift and
               the value of the property can be included within his available assets.

       Subsections (3)and (4)
B.41   Part 5 of the Proceeds of Crime Act 2002 provides broad powers for the recovery
       of property by the State which is, or which represents, "property obtained through
       unlawful conduct".16 Where the property has been disposed of and passed to
       someone else, it can generally be followed into the hands of that person and
       recovered from them.17 Part 5 of the 2002 Act does not contain any general
       definition of "disposal", although section 314(3) provides that property is to be
       treated as disposed of when it passes to another under a will or intestacy or by
       operation of the law. Subsection (4) of clause 6 amends subsection 314(3) by
       adding a provision that property is also to be treated as disposed of when it
       passes in pursuance of this Bill. This makes clear that whenever property passes
       from one person to another under this Bill it will count as a disposal for the
       purposes of Part 5 of the 2002 Act.

B.42   In certain circumstances property which has been disposed of ceases to be
       recoverable. These circumstances are set out in section 308 of the Proceeds of
       Crime Act 2002. They include the case where the claimant obtains property from
       the defendant in civil proceedings which are based on the defendant's unlawful
       conduct (section 303(3) of the 2002 Act). Subsection (3) of clause 6 introduces a
       new subsection into section 308 to clarify that property does not cease to be
       recoverable as a result of anything done under the Bill.




       16
            Proceeds of Crime Act 2002, section 240.
       17
            Proceeds of Crime Act 2002, section 304(2) and (3).




                                                  71

             In the example above, say that the thief was not convicted of his
             crimes because he died before the criminal court hearing took place.
             Without a conviction, it is not possible for the court to impose a
             confiscation order. However, proceedings may still be brought for civil
             recovery. If the relevant property was obtained through unlawful
             conduct, it will be recoverable in the hands of his wife unless it falls
             within one of the specified exceptions. The wife may argue that it has
             ceased to be recoverable property because section 308(3) of the
             Proceeds of Crime Act 2002 provides that property ceases to be
             recoverable if it is obtained in civil proceedings by a claimant (the
             wife) whose claim is based on the unlawful conduct. Clause 6(3)
             prevents this argument from succeeding.

       Clause 7

       Subsection (2)
B.43   The Bill applies to all trusts that fall within its scope whether created before or
       after the Bill comes into force.

B.44   Although it is unusual for legislation to permit the alteration of property rights that
       came into existence before the legislation was enacted, it was felt to be
       necessary here in order to avoid the possibility of the reliance principle continuing
       to have effect for many years into the future.

       Subsection (3)
B.45   The provisions of the Bill do not come into effect until one year after the Bill is
       enacted. Therefore a beneficiary who believes that he might lose his equitable
       interest under the exercise of the court's discretion could put his affairs into order
       by, for example, declaring his interest or asking the trustee to transfer the legal
       title to him.

       Subsection (4)
B.46   This provides the extent of the Bill. It provides that the Bill only extends to
       England and Wales because the Law Commission cannot make
       recommendations for Northern Ireland and Scotland.




                                              72

APPENDIX C
IMPACT ASSESSMENT FOR REFORMING THE
LAW OF ILLEGALITY IN TRUSTS




                                              73

                               Summary: Intervention & Options

 Department /Agency:         Title:
 Law Commission              Impact Assessment for Reforming the Law of Illegality in
                             Trusts


 Stage: Draft Bill           Version: Final  Date: February 2010
 Related Publications: The Effect of Illegality on Contract and Trusts (1999) (Consultation Paper No
 154); The Illegality Defence (2009) (Consultative Report No 189, BAILII: [1999] EWLC C154 )
Available to view or download at: http://www.lawcom.gov.uk Contact for enquiries: Tamara Goriely Telephone: 020-3334-0281 What is the problem under consideration? Why is government intervention necessary? A person may use trust law to conceal their ownership of property for a criminal purpose, typically by "parking" property with a partner or relative to evade tax or creditors. In serious cases, the property may be confiscated under the Proceeds of Crime Act 2002, but in other cases, the issue is left to private law. The courts are faced with a choice between ignoring the illegality (and applying normal property law rules) or granting a windfall to the holder of the property, who may be equally guilty. The law in this area is confused. It depends on the intricacies of trust law, which few people understand, and which have arbitrary consequences, unrelated to the merits of the case. What are the policy objectives and the intended effects? The policy objectives and intended effects are to: 1. Make the law clear and proportionate, so that outcomes are related to the merits of the case, rather than obscure legal "presumptions". At present, the outcome of the case may depend on the "presumption of advancement" (an outdated and discriminatory 19th century rule by which a man who transfers money to his wife or children is presumed to have intended it as a gift). 2. Deter people from concealing their property for a criminal purpose. What policy options have been considered? Please justify any preferred option. 1. Do nothing 2. Abolish the "presumption of advancement". 3. Allow the courts to decide, at their discretion, whether to enforce trusts created or used to conceal the true ownership of property for a criminal purpose. The courts would only refuse to enforce property rights in exceptional circumstances, bearing in mind a list of relevant factors. This is the preferred option: the rules would be clearly set out, and decisions would be directly related to the merits of the case. When will the policy be reviewed to establish the actual costs and benefits and the achievement of the desired effects? Ministerial Sign-off For SELECT STAGE Impact Assessments: I have read the Impact Assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. Signed by the responsible Minister: .............................................................................Date: 74 Summary: Analysis & Evidence Policy Option: Description: Abolish the presumption of advancement (not 2 recommended) ANNUAL COSTS Description and scale of key monetised costs by "main affected groups": One-off (Transition) Yrs In 2005, the MOJ commented that this would have no significant £ impact on businesses, charities or the public sector. If there were Average Annual Cost any financial effects at all they would be minimal. COSTS (excluding one-off) £ Total Cost (PV) £ negligible Other key non-monetised costs by "main affected groups" We support abolition which would remove an incident of clear gender bias in family law (see below). However, it would not solve many of the problems with the law of illegality in trusts. ANNUAL BENEFITS Description and scale of key monetised benefits by "main affected groups": One-off Yrs None have been identified. £ BENEFITS Average Annual Benefit (excluding one-off) £ Total Benefit (PV) £ negligible Other key non-monetised benefits by "main affected groups": Abolition would remove a discriminatory provision, and permit the UK to ratify Article 5 of Protocol 7 of the European Convention on Human Rights. Key Assumptions/Sensitivities/Risks: Price Base Time Period Net Benefit Range (NPV) NET BENEFIT (NPV Best Year Years £ estimate) £ What is the geographic coverage of the policy/option? England & Wales On what date will the policy be implemented? Which organisation(s) will enforce the policy? Civil courts What is the total annual cost of enforcement for these organisations? £ negligible Does enforcement comply with Hampton principles? Yes Will implementation go beyond minimum EU requirements? Yes What is the value of the proposed offsetting measure per year? £ none What is the value of changes in greenhouse gas emissions? £ none Will the proposal have a significant impact on competition? No Annual cost (£-£) per organisation Micro Small Medium Large (excluding one-off) Are any of these organisations exempt? No No N/A N/A Impact on Admin Burdens Baseline (2005 Prices) (Increase - Increase £ Decrease £ Net £ Key: Annual costs and benefits: (Net) Present 75 Summary: Analysis & Evidence Policy Option: Description: Give the courts discretion whether to enforce trusts 3 created or used to conceal ownership for a criminal purpose (recommended option) ANNUAL COSTS Description and scale of key monetised costs by "main affected groups": One-off (Transition) Yrs Lawyers and judges would need to become familiar with the new £ law. Initially, a few cases may be taken to a hearing to test the Average Annual Cost limits of the legislation. In the first 5 years, we anticipate up to five COSTS (excluding one-off) first instance cases. £ Total Cost (PV) £ minor Other key non-monetised costs by "main affected groups" ANNUAL BENEFITS Description and scale of key monetised benefits by "main affected groups": One-off Yrs The Bill will introduce greater clarity into the law, removing the £ need for potentially expensive litigation. There will be less risk of BENEFITS Average Annual Benefit expensive litigation before the Court of Appeal, Supreme Court (excluding one-off) and European Court of Human Rights. £ Total Benefit (PV) £ minor Other key non-monetised benefits by "main affected groups": The new law will be seen to be fair. It will also deter people from entering into fraudulent arrangements, leading to a possible reduction in tax and benefit fraud. Key Assumptions/Sensitivities/Risks: If the law is not clarified, there is a risk that the courts may be seen to deprive claimants of valuable property for disproportionate and arbitrary reasons. This would give the impression that the law is unfair and could contravene the UK's human rights obligations. Price Base Time Period Net Benefit Range (NPV) NET BENEFIT (NPV Best Year Years £ estimate) £ What is the geographic coverage of the policy/option? England & Wales On what date will the policy be implemented? Which organisation(s) will enforce the policy? Civil courts What is the total annual cost of enforcement for these organisations? £ negligible Does enforcement comply with Hampton principles? Yes Will implementation go beyond minimum EU requirements? Yes What is the value of the proposed offsetting measure per year? £ none What is the value of changes in greenhouse gas emissions? £ none Will the proposal have a significant impact on competition? No Annual cost (£-£) per organisation Micro Small Medium Large (excluding one-off) Are any of these organisations exempt? No No N/A N/A Impact on Admin Burdens Baseline (2005 Prices) (Increase - Increase £ Decrease £ Net £ Key: Annual costs and benefits: (Net) Present 76 Evidence Base (for summary sheets) BACKGROUND Calls for law reform arose out of the 1994 House of Lords" decision, Tinsley v Milligan.1 Here a lesbian couple bought a house together using joint money. However, they registered it in the name of only one of them so that the other could claim social security benefits to which she was not entitled. In arrangements of this sort, where the intended owner is not the registered owner, lawyers analyse the situation in terms of a trust. The registered owner is said to hold the "legal" title, while the other party is left to argue that they are entitled to a "beneficial interest". They may do this either on the basis of their contribution to the purchase price (a "resulting trust") or on the basis of a common intention to own the property jointly (a "constructive trust"). When the couple fell out, the registered owner (Ms Tinsley) sought to evict her former partner (Ms Milligan) from the house. Ms Milligan counterclaimed, on the basis that she had contributed half of the purchase money, and was therefore entitled to half the house. To use legal terminology, she argued that she was entitled to a beneficial interest under a "resulting trust". Ms Tinsley countered that Ms Milligan was not entitled to ask the court to help her enforce the trust because she had behaved illegally. The House of Lords held that the so-called "reliance principle" applied: Ms Milligan won, because she could prove her interest in the property without needing to "rely" on her illegal conduct. The outcome of the case depended on the legal starting point or "presumption" applied by trust law. In this case, once Ms Milligan has shown that she contributed towards the purchase price, the law "presumed" a resulting trust. However, if the relationship had been slightly different, the courts may have been forced to reach the opposite conclusion. For example, if a father had given money to a daughter, the "presumption of advancement" would apply. This archaic and discriminatory 19th century rule presumes that if a man gives money to his fiancée, wife or children, he intends to make a gift. The "reliance principle" means that a father could not rely on evidence of his true intention to keep ownership of the property where this was based on an illegal motive. However, a mother in exactly the same circumstances would be given her property back. Problems with the law In Tinsley v Milligan, the court was clearly reluctant to deprive Ms Milligan of her interest. As Lord Goff pointed out, it seemed harsh to deprive her of her life savings for a relatively minor fraud, when she had confessed her wrongdoing to the Department of Social Security and had made her amends with them. Equally, it seemed wrong to give an unjustified windfall to Ms Tinsley who was implicated in the same fraud. Thus in standard cases, the courts tend to ignore the effect of any illegality. However, two criticisms are made of this: 1. In some cases the courts may be required to enforce the trusts, despite very serious illegality. In 1994, Lord Goff highlighted that the protection given to minor fraudsters would also protect terrorists or armed robbers. He therefore called for the Law Commission to review the law.2 1 [1994] 1 AC 340. 2 Above, at 362. 77 2. In a few arbitrary cases, the claimant will lose, even though the illegality is minor. The result depends not on the merits of the case, but on obscure legal "presumptions", which are often outdated and may be discriminatory. Under human rights law, if people are to be deprived of valuable property rights, the law should be clear, proportionate, and justifiable. The deprivation must be for relevant and sufficient reasons. In 2006, we considered whether the second criticism would be solved simply by abolishing the presumption of advancement.3 However, we have concluded that this would not solve all the problems. This is because in 2007 the House of Lords introduced further uncertainty into the law. The case of Stack v Dowden appears to overturn the presumption that property is held on trust in the proportions to which the parties contributed the purchase money.4 Instead, in cases involving a family home, the starting point is that the property is owned by the registered owner. The non-owner is therefore required to produce evidence that the parties intended this to be different, so as to prove a "constructive trust". It is difficult to tell what effect this will have where, for example, cohabitees have placed the property in one name to conceal it from an ex-spouse. It seems that the claimant may lead some evidence of a common intention, but not the most direct evidence, which reveals the true reason behind the parties" actions. As a result, the law is uncertain and complex, and is likely to lead to arbitrary results. Some claimants will win and some will lose, depending on the exact details of the evidence led. There are other uncertainties. For example, in some cases, claimants are allowed their money back if they withdraw from the trust arrangement before the illegal purpose has been carried out. However, the scope of this is unclear. It seems that repentance is not required: it is possible to withdraw simply because the scheme is not needed. Trust law and the breakdown of cohabiting relationships In Tinsley v Milligan, the issue arose in the context of the breakdown of a cohabiting relationship. As we explain below, this is by far the most common circumstance where people bring claims on the basis of constructive or resulting trusts (though not the only circumstance). By contrast, these issues do not generally arise following divorce or the breakdown of a civil partnership. Here, the courts have wide powers to deal with property to ensure a broadly fair outcome between the parties.5 Spouses and civil partners do not need to worry about concepts of trust law. In our 2007 report, Cohabitation: The Financial Consequences of Relationship Breakdown, we examined the patchwork of legal rules on which cohabitants are forced to rely, including constructive and resulting trusts. 6 We concluded that these rules were complex, uncertain and expensive to rely on. They were not designed for family circumstances and often gave rise to outcomes that were unjust.7 We recommended a completely new scheme for financial relief for those who met the criteria set out in the report. If our recommendations for financial relief were implemented, the need for this Bill would reduce, though not disappear. As we explain below, people may also "park" property with relatives, friends or business partners. 3 See short paper, The Presumption of Advancement: does it have any effect in practice? December 2006, available at http://www.lawcom.gov.uk/illegal.htm. 4 [2007] UKHL 17, [2007] 2 AC 432. 5 Matrimonial Causes Act 1973, Part II and Civil Partnership Act 2004, sch 5. 6 Law Com No 307, July 2007. 7 Executive Summary, para 1.4. 78 This impact assessment is written on the assumption that trust law continues to be the main way in which cohabiting couples resolve disputes about ownership of their home. We are conscious that the rules on illegality in trusts are not the only problem with trust law in this context. They are simply a further twist to the tangle. However, if a policy decision is taken that trust rules should remain the main way to resolve issues of cohabitation, we think this particular twist is worth removing. We are also conscious that the concepts described here (such as "constructive and resulting trusts" and "presumptions of advancement") appear alien to non-lawyers. Research indicates that a majority of cohabitants believe in the "common law marriage myth": the idea that unmarried couples who are living together are, after a certain length of time, treated as if they were married. Few have any notion of "trust law". If they think of it at all, they see it as the preserve of the rich, with no relevance to ordinary people. In one research study, for example, one woman going through a messy relationship breakdown said she had become familiar with "constructive or relating [sic] trusts". However she commented that friends "look at me like I"m talking Swahili".8 This makes the Bill difficult to describe in simple terms, but no less necessary. OBJECTIVES Our first objective is to ensure that the law is clear and proportionate. Under the European Convention on Human Rights, if the law is to deprive people of their property rights because of a criminal intention, it is important that the law is clearly set out in advance, and is seen to be based on relevant and sufficient reasons. For example, Article 7 states that the law may not impose a heavier penalty than the one applicable at the time the offence was committed. Similarly, Article 1 of the First Protocol states that "no-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law". We therefore think the law should be clearly set out in advance, and should be seen to be based on reasons which are relevant to the public interest. Our second objective is to deter people from using trust structures for serious wrongdoing. In a trust, the person who does not appear to be the legal owner of property may claim the benefits of ownership. Trust structures can be used for legitimate purposes, but they also offer a unique opportunity to conceal the true ownership of the property for illegitimate purposes - for example to defraud creditors, tax authorities, or social security administrators. It is therefore important that the law should been seen to be deterring those who may take advantage of this opportunity. On the other hand, it is important to preserve a balance. Where the court refuses to enforce a trust, this may provide an unjustified windfall for the legal owner, who may be equally or more complicit in the fraud. It is important that litigants are not allowed to raise allegations of minor illegality to obtain a tactical advantage in what may already be fraught litigation following family breakdowns. RATIONALE FOR GOVERNMENT INTERVENTION Government intervention is necessary to remove the arbitrary and uncertain effect of the present law which can result in unjust decisions. Judicial reform is unlikely as the present law is laid down by a decision of the House of Lords. The decision is well-established and leaves little room for flexibility. We think that primary legislation offers the only real prospect of change. 8 Above, p 111. 79 CONSULTATION Our recommendations on illegality in trusts are part of a lengthy review of the law of illegality. The first consultation paper was published in 1999: The Effect of Illegality on Contract and Trusts (CP 154). We received 43 responses. This was followed in 2001 by a further consultation paper, The Illegality Defence in Tort (CP 160). In 2006 we consulted on whether the problems could be solved by abolishing the presumption of advancement (Short Paper: The Presumption of Advancement: Does it Have any Effect in Practice?). In 2009, given the length of time, we consulted again, in The Illegality Defence (Consultative Report No 189). We received 21 responses. We have also held seminars in the course of our review. In 2001 we held a seminar on the Illegality Defence in Tort, organised jointly with the Society for Advanced Legal Studies and the Tort Section of the Society for Public Teachers of Law. In 2002 we presented a paper to the SPTL Conference. In 2005 the Trade Union Congress legal officers group organised a seminar to discuss illegality in employment contracts. SCALE OF THE PROBLEM Below, we review the available data on the scale of the issue. Our conclusion is that the law on illegality in trusts has wide potential. It would appear that the issue may have relevance to several thousand cases a year. However, the actual use made of legal aid and the courts to deal with issues of trust law is very low: in 2004/5 (the last date for which data are available), the Legal Services Commission recorded only 118 cases. The number of such cases which raise issues of illegality is very low indeed. As discussed below, we identified 19 reported cases in 9 years: roughly two cases a year. Although there will also be some unreported cases, we do not think that the numbers are large: probably no more than a dozen a year. Below we summarise the available data, looking first at the effect of trust law on cohabitees and then in other contexts. We then look at how a trust may be used to conceal property for a criminal purpose. The use of trust law on the breakdown of cohabiting relationships Disputes over such trusts typically arise between cohabiting couples who own a home. The 2001 census revealed that there were just over two million cohabiting couples in England and Wales. Work by John Haskey shows that around 40% of cohabitees buy property on a mortgage, rather than rent. Yet, of those buying property on a mortgage only a minority (40%) put the property in joint names. In most cases (57%), the property was registered in the name of only one of the partners.9 If the relationship breaks down, the court has no general discretion, as it does when dealing with marriage cases, to transfer property. Instead, any property disputes are treated as matters of trust law. Issues of constructive and resulting trusts are therefore relevant to the 456,000 couples in England and Wales who bought a home on a mortgage and put it into the name of only one partner. It is open to the other party to claim a beneficial interest in the home on the grounds that there was a common intention to own the home jointly, or that they made a contribution towards the purchase price or mortgage payments. Even where the house is jointly owned, it is possible for the parties to use the mechanism of a resulting trust to argue that the shares in the home should not be divided equally. 9 J Haskey, "Cohabiting couples in Great Britain: accommodation sharing, tenure and property ownership", Population Trends 103, Spring 2001. 80 Although there is the potential for many disputes in this area, relatively few cases are brought to court. A 2007 study by Douglas and others showed that most cohabitees were ignorant of the law, confused by legal terminology and fearful of legal costs.10 Thus people often settle disputes in the shadow of the law without issuing proceedings. Although trust law is the main legal mechanism for resolving property disputes, couples were particularly unlikely to report their disputes in these terms. This means that the number of cases classified as involving issues of trust law is low. In 2005 the Legal Services Commission provided us with data on the number of trusts cases that received legal aid funding. The data indicated that for the financial year 2004-2005 the Legal Services Commission received 118 applications for General Family Help for cases involving trusts of land. Of these applications, 98 (83%) were made by ex- cohabitees. Douglas and others also found a low number of court applications from cohabitees. Searching the 2004 case files at a large County Court for applications brought by cohabitees under the Trusts of Land and Appointment of Trustees Act 1996, they found only 15 cases that year. Their interviews with cohabitants and solicitors explored the reasons why cohabitees were particularly reluctant to resolve their property disputes through the court. Constructive and resulting trusts in other contexts The law in this area is not solely concerned with the breakdown of cohabiting relationships. Issues of resulting or constructive trusts can arise in a wide range of relationships, whenever people share property without coming to a formal written understanding of its ownership. Research published by the Institute of Advanced Legal Studies in 2001 analysed 125 legal aid files about interests in land which involved issues of trust law.11 Although most disputes were between former cohabitees, the study also found 10 disputes between parents and children (or step-parents and step-children); 6 disputes between siblings, and 2 disputes with in-laws. There were also 31 disputes which arose outside a family context, between former friends or business partners. The cost of disputes over constructive and resulting trusts The IALS study of 125 legal aid files also recorded data on the cost of the cases. It found that in 1998, the median cost of a legal aid dispute over an interest in land was £2,323, but there was a wide variation in costs. A quarter of cases cost the legal fund less than £1,000 and a quarter cost over £4,000. Four cases cost over £25,000 and the most expensive case cost £45,000. This is an area where, once the parties start taking technical legal points, costs can escalate quickly. 10 G Douglas, J Pearce and H Woodward, "A Failure of Trust: Resolving Property Disputes on Cohabitation Breakdown" (2007); study conducted jointly by Cardiff University and the University of Bristol. 11 T Goriely and P Das Gupta, Breaking the Code: the impact of legal aid reforms on general civil litigation (2001), Institute of Advanced Legal Studies. The research examined a sample of legal aid files closed in 1998/9, before the introduction of the 2000 reforms. 81 The effect of illegality in trusts Although it is very difficult to quantify, there is also wide potential for constructive or resulting trusts to raise issues of illegality. Among the most common forms of illegality are attempts to hide assets from creditors or potential creditors, or from an ex-spouse. A possible scenario, for example, is where one partner contributes to the mortgage on a new home, but leaves the property in the other partner's name to prevent an ex-spouse from finding out about it. Alternatively, one partner may put property in the other partner"s name because they are engaged in a risky business venture and are concerned about possible bankruptcy. People may also attempt to evade tax. An elderly parent, for example, may put property in the name of their child to evade inheritance tax, even though the parent intends that the child should give the money back if the parent needs it. Others may hide their wealth in order to claim state benefits to which they are not entitled. A search through Westlaw shows that between 2000 and 2008 there were 19 reported cases which raised issues of illegality in trusts. This underestimates the effect of the issue. Many cases are resolved without proceedings being issued, or settled before trial, or heard in the county court without being reported. However, the overall number of cases is likely to be low. Our conclusion, therefore, is that the issue of illegality in trusts is raised in only a few cases (probably no more than a dozen a year). However, the law in this area has the potential to cast a long shadow over the property rights and relationships of several thousands of people, in a wide variety of circumstances. OPTIONS Option 1 - Do nothing The courts would be left to interpret and apply the present law as best they can. There are two possible dangers. The first danger is that the courts might deprive claimants of valuable property rights by refusing to enforce trusts where the claimant has committed a minor illegality. Following Stack v Dowden, it is difficult to tell how the courts would react to a case in which a cohabiting couple put a house bought with joint money (and intended to be owned jointly) into the name of only one of the parties to commit a minor offence. It appears that the starting point is now that the "equitable title follows the legal title". In other words, the registered owner, who appears to own the property, really does owns the property, unless it is proved otherwise. The other party may not be permitted to lead evidence of the couple's true intention to own the property jointly, if this was bound up with an intention to defraud. In some cases this could be harsh and disproportionate. It could deprive the non- registered owner of their life savings, while rewarding the registered owner with a windfall profit, even where they are equally complicit in the fraud. Under human rights law, if citizens are to be deprived of property, the law should be known in advance, proportionate and based on a clear policy rationale. It must not be seen to be arbitrary, or based on technicalities unrelated to the public interest. 82 The second danger is that the courts may interpret the law so that claimants are always permitted to enforce their property rights under a trust, however illegally they have acted. This might be seen to bring the law into disrepute as the courts are seen to lend aid to an illegal scheme. People could, for example, pretend to give money to a son or daughter to evade inheritance tax, in the certain knowledge that if they need the money back, the courts will always allow the claim. The law will not be seen to deter illegal behaviour. Option 2 - Abolish the "presumption of advancement" As we have seen, the interaction of the illegality rules with the presumption of advancement can result in discriminatory and unjust decisions. The Government has already accepted that the discriminatory nature of the presumption of advancement means that legislation is needed to amend or abolish it. Only then can the Government carry out its stated commitment to ratify Article 5 of Protocol 7 of the European Convention on Human Rights.12 In 2005, the Government drafted provisions to this effect for the Family Law Property and Maintenance Bill. The explanatory notes explain the impact of the reforms in the following terms. No Regulatory Impact Assessment has been carried out. The Bill would have no significant impact on business, charity or the voluntary sector. It is not envisaged that the Bill will incur any additional public sector costs-¦ Therefore, if there were any financial effect at all, it would be minimal. The 2005 draft Bill was not introduced. However, we understand that in January 2010, amendments were tabled to the Equality Bill to introduce this policy. Our consultation revealed no good reason to keep the presumption of advancement. We support its abolition. However, we do not think that this alone will cure all the problems. Following Stack v Dowden, the law on constructive trusts also has the potential to cause injustice. Option 3 - Allow the courts to decide, at their discretion, whether to enforce trusts created or used to conceal the true ownership of property for a criminal purpose Our preferred option is to pass legislation to give the courts a discretion to decide whether to enforce property interests in favour of those who have created or used the trust mechanism to conceal the true ownership of property for a criminal purpose. The courts would only refuse to enforce property rights in exceptional circumstances, bearing in mind a list of relevant factors. This is the policy set out in our draft Bill on Trusts (Concealment of Interests). The scope of the discretion would be clearly set out in statute, allowing citizens to organise their affairs in the knowledge that the discretion exists. The courts would only deprive claimants of property in exceptional cases, such as where the illegality was serious. This means that litigants would not be able raise minor issues to gain a tactical advantage. The legislation would ensure that where the courts do deprive claimants of property rights they do so for a good reason, acting in the public interest, and focusing explicitly on relevant policy factors. This would meet human rights obligations. 12 Written Answer, Hansard (HL) 21 April 1998, vol 588, col 197W. 83 The effect of our preferred option on the Proceeds of Crime Act 2002 Where criminals attempt to conceal the proceeds of crime, the State has extensive powers to confiscate the property. The law in this area was strengthened by the Proceeds of Crime Act 2002, as amended by the Serious Crime Act 2007. These Acts provide for both confiscation orders in criminal proceedings and for civil recovery by the Serious Organised Crime Agency. 13 At one stage, we considered whether these extensive powers had removed all need for a private law doctrine of illegality in trusts. In serious cases, where a criminal concealed property gained in the course of a crime, the State would confiscate it. Could it be argued that in other cases the courts should simply enforce normal property rights, and not worry about any possible illegality? We have decided that the courts still need some discretion in private law to refuse to enforce trusts - and the matter cannot be left solely to confiscation orders and civil recovery. This is because: (1) in many cases a crime is contemplated but not actually committed; (2) even if a crime is committed, it will often not be prosecuted; (3) the subject matter of the trust will not necessarily be the proceeds of crime and therefore would not be caught by the confiscation provisions. For example, assets may be hidden to defraud creditors, but the concealment may be discovered before the creditors were actually defrauded. In this case, there would be no proceeds of crime. However, we have made sure that the draft Bill does not prejudice the powers which the State has to confiscate the proceeds of crime. We therefore include a small amendment to the 2002 Act to ensure that even if the court exercises its discretion to allow the trustee to keep the property, the property can still be recovered by the State.14 COSTS AND BENEFITS OF THE PREFERRED OPTION Monetised costs and benefits As discussed above, each year only a handful of cases involving illegality and trusts receive legal aid or are brought before the courts. This suggests that both the direct costs and the direct benefits will be very low. We think that the introduction of a statutory discretion will prevent difficult appeals on points of law. It will remove the costs of some cases before the Court of Appeal, Supreme Court and European Court of Human Rights. On the other hand, any new legislation may generate a few additional cases before the lower courts until the full scope of the legislation is understood. By way of illustration, it is possible that over the next 5 years, leaving the law alone will generate a couple of Court of Appeal hearings, a case to the Supreme Court and an application to the European Court of Human Rights. On the other hand, statutory reform may generate an additional 3-5 lower court decisions: cases which might otherwise have settled may proceed to court as the parties seek to explore the effect of the new statute. Overall, the net effect on litigation costs is likely to be small. 13 We give details of these provisions in our 2009 consultative report, Appendix A. 14 Draft Bill, clause 6. 84 Non-monetised benefits The law in this area casts a long shadow and has the potential to affect the property rights of several hundred thousand people. If the law is seen to be unfair, either because it condones serious illegality, or because it allows parties to raise minor tactical points, it brings the legal system into disrepute. We have considered what effect legislative change will have on tax and benefit fraud. The problem is that if the current law is left unchanged, there may be a high profile case in which the courts are seen to ignore illegality. The public may be left with the impression that "the rich get away with it": that is, those who can afford litigation and lawyers may commit fraud with impunity. When the law is shown to be unfair in this way, it weakens people's respect for it. This makes it slightly more likely that people will commit tax and benefit fraud when given the opportunity. A growing body of research demonstrates this link. For example, Tyler has shown a statistical correlation between how far individuals believe a law to be legitimate and how far they are willing to comply with it. 15 Nadler has tested the thesis experimentally. Participants were shown newspaper articles: for one group, the articles described the law in a good light; for the other group, the articles were altered to make the outcome of the law appear unjust. The participants were then asked to indicate their willingness to undertake various forms of illegal behaviour. Those shown "unfair" reports were significantly more likely to say they would break the law in minor ways.16 It is not possible to quantify this effect. One cannot say that x column inches of negative press coverage converts to £y million in tax evasion. However, the relationship nevertheless exists. We think that our reform would produce some savings in the form of reduced tax and social security benefit fraud. The reform is designed to deter people from entering into such fraudulent arrangements because they will be at risk of losing their interest in the trust property. Finally fairness is a benefit in its own right. The reform would provide fair decisions based on clear policies. SPECIFIC IMPACT TESTS We do not think this reform will have any measurable impact on competition, small firms, sustainable development, carbon assessment, the environment, health, race equality, disability equality or the rural environment. Legal aid As discussed above, the effect on legal aid will be minimal. Legal aid funds only a few disputes in this area. The latest data available show that in 2004-2005 the Legal Services Commission received 118 applications for General Family Help for cases involving trusts of land. Only a small minority of cases will raise issues of illegality. Although new legislation may raise new issues to be litigated, the overall effect of the legislation will be to clarify the law and provide litigants with greater certainty. The Bill makes it clear that the issue of illegality should be raised only in exceptional circumstances. We think that overall the savings provided by clearer law will offset the initial cost of testing the legislation. 15 T Tyler, "Procedural Fairness and Compliance with the Law" [1997] Swiss Journal of Economics and Statistics. 16 J Nadler, "Flouting the Law" (2005) 83 Texas Law Review 1399. See also C R Sunstein, Social Norms and Social Rules (1995) Law and Economics Working Paper No 36. 85 Gender equality A major problem with the current law is that is overtly discriminatory. A man who parks property with a son or daughter is treated more harshly than a woman who carries out the same actions in identical circumstances. This is because in illegality cases, the outdated "presumption of advancement" is not simply a starting point for considering the evidence, but determines the outcome of the case. The clearest way of resolving this problem is to abolish the presumption of advancement. The Government is already committed to this, in order to ratify Article 5 of Protocol 7 of the European Convention on Human Rights. However, the draft Bill on illegality in trusts will also remove the discriminatory nature of the law, by ensuring that the presumption of advancement does not affect the outcome of the case. Human rights If the law is to deprive a claimant of valuable property because of illegal conduct, it should do so in a way which is compatible with Article 1 of the First Protocol. This states that "no- one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law". This does not prevent legal rules which deprive those who have behaved illegally of their possessions. However, it is important that the law on this subject is clearly set out, proportionate, and justifiable. The deprivation must be for relevant and sufficient reasons. Unfortunately, the current law is confused, uncertain and arbitrary. There is a danger that the current law could reach a surprising result for no clear policy reason. In the case of a constructive trust, the reliance principle can deprive a claimant of extremely valuable property on account of a minor crime carrying only a small fine. If this result were impossible to foresee at the time the offence was committed, and if the result could not be justified in policy terms, then there is a danger that it would breach the UK's human rights commitments. The draft Bill would ensure that the law was clearly established. Decisions made under the Bill would be directly related to the policy rationales underlying the illegality defence, and therefore would be based on sufficient and relevant reasons. They can be justified as proportionate. We think the draft Bill will ensure that the law is compatible with the European Convention on Human Rights. 86 APPENDIX D LIST OF CONSULTEES List of those who responded to the 2009 consultative report, The Illegality Defence (2009) Law Commission Consultation Paper No 189, BAILII: [1990] EWLC 189. Judiciary Association of HM District Judges Council of HM Circuit Judges Sir Richard Buxton Lord Justice Longmore Barristers Mr Michael Brindle QC Mr Simon Levene Academics Professor Richard Buckley Mr Peter Cane Mr Derek Davies Mr Paul Davies Associate Professor Margaret Fordham Mr Justice Hayton Dr Hugo van Kooten Associate Professor Mark Lunney Dr Duncan Sheehan Ms Janet Ulph Organisations Association of Personal Injury Lawyers Chancery Bar Association Law Reform Committee of the Bar Council Metropolitan Police Society of Trust and Estate Practitioners 87


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