Restraint Orders

A variety of Financial Orders are becoming increasingly common in criminal law proceedings for a surprising range of criminal offences. One of these is the Restraint Order. In this article we concentrate on the procedures and principles for restraint orders obtained under the Proceeds of Crime Act 2002. Following a guilty plea or a conviction at trial the prosecution can ask the court to consider whether a defendant has benefited from their involvement in a criminal act or enterprise. If the court believes a defendant may have obtained the proceeds of crime then confiscation proceedings will follow.

Usually a Restraint Order will not be obtained until the commencement of criminal proceedings i.e. after charge. However, the prosecution can obtain one against a defendant and his assets during the strong criminal investigation stage/strong if they can establish there is reasonable cause to believe the defendant has benefited from criminal conduct. For example, if a defendant is bailed by the police pending further investigation on a money laundering offence a Restraint Order will prevent the defendant from dealing with his assets until a decision has been made whether or not to charge him or her. A Restraint Order is usually the first step taken by the authorities.

It enables the prosecutor to control and preserve a suspect's assets before conviction or guilty plea. It prevents him from trying to defeat confiscation proceedings by disposing of his or her assets before a Confiscation Order is made. It can be made on persons other than a defendant, who has an interest in the defendants assets. Most commonly this could include a spouse or relative. The form and content of the Restraint Order will vary greatly depending upon the nature of the case and the nature of the assets which the prosecution wish to restrain. It will usually identify those known assets which are to be restrained/frozen. The usual assets affected will be Bank & savings accounts and other investments being frozen. Ban on sale of shares and investments.