Criminal Restraint of Assets

A criminal restraint order is an order for the purpose of freezing or preserving assets that may be confiscated at a later date by way of a confiscation order following a criminal conviction.   The purpose of the order is to meet any confiscation order which may arise upon conviction of an offence that has generated profits.  This can include any number of offences, from drug trafficking through to money laundering and tax evasion.  

A criminal restraint order can be sought at a very early stage, including pre-charge. Two regimes are potentially applicable: The Criminal Justice Act 1988 or the Proceeds of Crime Act 2002 (POCA), depending on when the underlying alleged offence was committed. Although the broad effect of the two restraint regimes is similar, there are marked differences when it comes to exceptions to asset restraint and there is a need to be across the detail in a given case. 

In all cases, the prosecutor, on behalf of the Crown or even on behalf of a private individual, must persuade the court on the balance of probabilities that the defendant has in their possession assets obtained as a result of criminal activity and that there is a real risk these will be dissipated or removed from the jurisdiction before a post-conviction confiscation order is fulfilled.

If POCA applies, those subject to a restraint order are allowed a weekly allowance from their assets (usually a maximum of £250). This can be renegotiated with the court and prosecuting authorities if the funds are insufficient. The Crown can also investigate a person's business to determine whether it is a legitimate enterprise, or if it is hiding assets from the proceeds of crime. If it can be held to be illegitimate, the assets will be treated as realisable property.  Restraint orders will remain in force until the confiscation order is satisfied (section 85(5)(a) of POCA). However, section 42(7) POCA provides that a restraint order must be discharged if proceedings are not brought within a reasonable time.

Bright Line Law is a barrister law firm led by Jonathan Fisher QC, one of the UK's leading barristers in white collar crime cases, provides specialist advisory, advocacy, litigation, policy and strategic services. If you require specialist advice on restraint orders, confiscation orders or POCA, contact Jonathan Fisher QC directly at jf@brightlinelaw.co.uk or another member of our team or telephone us on + 44 (0)203 709 9470.

Jonathan Fisher QC
Lead Counsel

Email jf@brightlinelaw.co.uk
Telephone + 020 3872 2852

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