A restraint order is an order of the crown court prohibiting any person (individual or company) from dealing with property they hold, or have an interest in. The purpose of a restraint order is to freeze property that may subsequently be confiscated following prosecution and conviction of a criminal offence. Confiscation is the power the court has to make orders depriving convicted offenders of their available assets if the offender has benefited from his criminal conduct.
A restraint order tells the person subject to it that he/she cannot ‘deal’ with the property cited in the order. Restraint orders can prevent dealing with specific assets. If the order mentions your car for example, it will mean that you cannot sell the car or transfer it or dispose of it, or in any way ‘realise’ it, i.e. turn it into cash. Or they can be an ‘all assets order’, in which case there is a blanket prohibition on dealing with any assets, whether or not they are specified in the order. This includes assets held anywhere in the world.
If a person, or a third person with knowledge of the order, deals with the property in breach of the order they will be in contempt of court which means they may face a fine or imprisonment.
Could you become the subject of a restraint order?
A judge in a crown court may make a restraint order if an investigator (for example the police or FCA) makes an application under section 40 of the Proceeds of Crime Act 2002 (POCA).
Such orders usually come early in a case and often before an arrest – as long as a criminal ‘investigation’ has started, s40(2)(a). The application is made ex parte – i.e. without notice to the suspect, so the only lawyer at court is for the prosecution.
Often, the first a person will know about an order being made is when he or she is served with the order, or even finds that his or her cash-card for some reason no longer works. Restraint orders can also affect third parties A spouse for instance, may often become subject to a restraint order where property is jointly held , but where their partner is under investigation.
If you know there is an investigation against you in respect of an offence for which you have received financial benefit there is a risk that an order will be made at any time. If you are able to make representations in advance of the order being made you may be able to influence the scope of the order, or provide sufficient assurance to the investigator in the form of an undertaking to avoid one being made all together.
What can you do if you are subject of a restraint order?
It is important to get advice from a solicitor as soon as possible when you are served with a restraint order. The immediate effect of a restraint order can be to leave an individual without access to funds that are required to pay bills or keep a business running. A standard term of a restraint order is to permit the release of a small sum of money (commonly £250/week) which the affected person can draw, often in cash by arrangement with the bank, to live on. This can be varied to permit more essential outgoings, but requires negotiation with the other side, or persuading the court.
As the order is often made without the presence of the affected party, it is important that it is carefully reviewed. You may be:
•required to make full disclosure of all your assets within a relatively short space of time;
•able to argue for an increase in the allowance to meet your everyday living expenses and/or expenses to enable you to carry on a trade, business, profession or occupation. (Please note, variations to a restraint order cannot be made to permit payment for legal expenses relating to the offence in relation to which the restraint order is made);
Required to repatriate assets held overseas;
•able to challenge the scope of the order. There is no necessity to keep any more in the pot than may be required to satisfy a confiscation order; or
•able to challenge the validity of the order.
If you have had your bank account frozen or you have been served with a restraint order, we suggest that you seek urgent legal advice.
Sperrin Law has considerable expertise in advising on all aspects of restraint orders. Restraint orders can remain in place for months, or in some cases even years, so it is important to ensure that everything is done to minimise the detrimental impact they have on day to day living, and the running of business. Please email us at email@example.com or call us on 0203 666 5155 to discuss how we can help.