Our white-collar crime, investigations and regulatory team regularly provides clients with expert advice on challenging restraint orders.
We assist when a restraint order has been imposed against clients personally, or when imposed in respect of assets co-owned with someone who is subject to the order.
When a conviction occurs, our lawyers are on hand to pull a team of wealth experts and researchers to successfully build and deploy a robust defence in relation to any confiscation proceedings.
A Restraint Order is an order under the Proceeds of Crime Act 2002 (POCA) which has the effect of freezing the assets and bank accounts.
If you are suspected of criminal activity, the authorities can apply to have your assets frozen under a restraint order, which is a tool used by prosecuting bodies to freeze the assets. Prosecuting bodies may want to freeze your assets to preserve them for a potential confiscation hearing in the future, in which they will seek to take the assets away from you.
Once a restraint order is imposed, it applies not only to an individual’s current assets, but also to any asset that is received after the order comes into effect.
If you are suspected of being in possession of assets which are the proceeds of crime, a prosecuting agency has a low threshold by which to issue an order against you.
These orders can be issued before any arrest takes place if the prosecutor has proven, on the balance of probabilities, that a criminal investigation has commenced against you in England or Wales, and that there is reasonable cause to believe that you have benefited from criminal conduct.
Restraint orders are usually made ex parte, which means that you may not be aware that an application has been made to the Court.
Yes. If you are subject to a restraint order, you will not be able to sell, transfer or otherwise dispose of the assets subject to the order until it is lifted.
In recent years, restraint orders have been imposed in respect of money, stocks and shares, jewellery, art, cars and even homes.
The authorities also have the power to freeze your assets in foreign jurisdictions. Your bank account will probably be frozen, and this can obviously make life extremely difficult, not only for you, but also for anyone else who shares ownership of the affected assets.
Despite the low threshold, restraint orders are open to challenge.
For example, you can apply to have the order set aside or varied if the prosecutor misled the Court when obtaining the order, or if there have been significant delays.
A confiscation order is an order made against a convicted defendant ordering him to pay the amount of his benefit from crime. Unlike a forfeiture order, a confiscation order is not directed towards a particular asset, and it does not deprive the defendant or anyone else of title to any property.
The purpose of such an order is to prevent a convicted person from benefitting from their criminal behaviour. If it happens, this will occur at the sentencing stage – after the investigation is complete and the defendant has either pleaded guilty to or been convicted of a criminal offence.
If you have been convicted of a crime, the prosecuting authorities may apply for the Crown Court to make a confiscation order, which requires you to pay a sum of money to HMCTS immediately or within a fixed period.
The Crown Court will determine how much a defendant has to repay and will also impose a period of imprisonment to be served if the defendant does not pay in accordance with the confiscation order. The length of the sentence is determined by reference to the amount of money.
The Crown Court must determine whether the defendant benefited from their criminal conduct and by how much. This is referred to as the “benefit figure”. When making this calculation, the court may take into account assets that do not relate to the offence for which the defendant was convicted, although this is subject to certain restrictions.
Yes. After the court has decided on a “benefit figure”, it will then consider what the defendant can afford to pay. This is referred to as the “realisable asset figure” or simply the “available amount”.
Very often, defendants believe that these amounts are inaccurate and wholly unfair. Prosecutors may fail to account for depreciation in value and/or third-party interests in the assets.
You may prepare a defence against a confiscation order which will requite a carefully devised strategy and thorough analysis of the evidence with regards to the benefit figure and available amount.
If you require assistance with any of the above, or for more information about us and our Criminal Litigation, Investigations and Regulatory services, please contact a member of the team who will be able to assist.
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