RESTRAINT ORDERS UNDER POCA 2002
Forrest Williams are solicitors specialising in Proceeds of Crime matters and Confiscation Orders. This post offers a general overview on one aspect of this complex area of law; restraint order under the Proceeds of Crime Act 2002.
For advice about your individual case, you should seek specialist help and our team would be happy to help. Call us now on 01623 397200.
Restraint Orders Under Proceeds of Crime Act 2002
A restraint order can be made under the Proceeds of Crime Act 2002. It is an order made by a Crown Court judge which effectively ‘freezes’ assets. These can be individual or company assets and can include bank accounts.
A single restraint order, which is normally made at the request of the investigating or prosecuting authority (often, but not always, the police), can affect several people or companies.
Restraint orders are wide in the scope of the assets that they freeze and include those legitimately acquired and those outside the UK.
In What Circumstances is a Restraint Order Made?
A restraint order can be made at any point after a criminal investigation has been launched. It is not necessary for you to have been arrested or charged with an offence before a Restraint Order can be made.
It is, however, necessary that the application for the Restraint Order shows reasonable grounds to suspect that you have obtained a benefit from criminal conduct. Usually, a Restraint Order is only made where there is a genuine risk that assets would be spent, hidden, given away or moved out of the country.
What Is The Restraint Order Process?
Before making the Restraint Order, a Judge will be provided with evidence from the applicant. It is important to note that you, as the person the Order will be made against, will not be aware of the application until after the Restraint Order has been made.
The first you will know about this process is that you will be served with a copy of the Order, which will already be in force when you receive this.
What is the Effect of the Order?
The Restraint Order will prevent the assets in question being spent, hidden, given away or moved our of the country. The technical wording is that you will be prevented from “dealing with” your assets.
While the Order will specify various assets and bank accounts, it will be worded in such a way that it is clear that it relates to all assets and accounts, including those not specifically listed in the Order.
You will be allowed to access a sum of money to meet your basic living expenses. This amount is typically £250 per week for an individual.
Can We Challenge a Restraint Order?
This is a highly complex area of law and it is vital that you instruct a specialist firm to review the Restraint Order and challenge it on your behalf.
The process is that we can apply to have the Order either cancelled in its entirety, or amended. The application is heard by a Crown Court judge and, if unsuccessful, can be further argued at the Court of Appeal and beyond.
Typically, people often want to amend the Order to exclude specific assets or accounts, or to increase the living expenses allowed, as well as to amend the terms to allow legitimate businesses to continue functioning.
What is the Purpose of a Restraint Order?
A Restraint Order is made with the intention of preserving assets so that they ultimately remain available to meet any Confiscation Order that may be made in the event that you are charged and convicted of a relevant offence.
What About Paying Legal Fees?
Restrained assets can’t be used to meet legal fees connected with the criminal charges, meaning you will have to rely on financial support from other people to meet your legal fees, or instruct a legal aid lawyer. We are happy to work alongside trusted relatives or friends in facilitating this for you.
What Are The Next Steps?
If you or a loved one are being affected by a Restraint Order relating to POCA proceedings, you should seek specialist help. Our team are here to help and can offer free initial advice followed by fixed fee representation.
Call us now on 01623 397200.