A Restraint Order is a Crown Court order that prevents the subject from withdrawing, spending, liquidating, moving, donating or otherwise ‘dealing with’  assets during the course of a criminal investigation. The scope of the order can be extremely far-reaching and in many cases will apply to all of a person’s assets, no matter where they are in the world.

This type of order has two purposes:

• To allow enforcement officers to investigate the provenance or purpose of any funds they suspect are related to criminal activity; and
• To ringfence these funds in case there is cause for authorities to confiscate them after the investigation concludes. 

Restraint Orders can last indefinitely, for as long as the relevant authority continues its investigation (subject to review by the court). This can leave you without access to your finances for many years in the most extreme cases, and may also cause stress and emotional harm as an investigation drags on.

You can apply to discharge a Restraint Order at any time, but your chances of success will depend heavily on your individual circumstances. An experienced solicitor can advise you on the best course of action to take to combat an order and have it discharged. You must ensure that you respond in the most efficient and effective way possible and avoid the risk of wasting time on unsuccessful legal challenges. It is also important to note that if you are served with a Restraint Order naming you as a defendant, this indicates that you may be suspected of a crime and you should consider how best to defend yourself during the investigation. Alternatively, you may be a co-owner of recoverable property, in which case you should also obtain legal advice.

There are several circumstances that may improve your chances of successfully discharging the order. For example, if the authority that secured the order fails to make progress in its investigation or cannot demonstrate good reasons for the order to remain in place, a judge may discharge the order. To discharge a Restraint Order in this way will require legal support, as you must build a case to demonstrate that the investigating authority has held your assets for longer than necessary.

You may also be able to apply for an exception, which allows you to access funds to cover your living expenses or to run your business. Again, it is best to work with an expert solicitor in such cases, to increase the likelihood of your success.

Typically, you will have absolutely no access to your assets under a Restraint Order, which can make it difficult to access legal services. The scope of the order can be very broad: not only can it limit access to all of your assets anywhere in the world (no matter whether they are specifically listed in the order or not), but it can also apply to any assets that you receive after the order is made.

As we have said above, you may be able to apply for an exception to a Restraint Order that will allow you to access living expenses, or money that you need to perform a trade or run a business. This will only apply in certain cases, so you should seek legal advice before pursuing this outcome. 

However, section 41(4) of the Proceeds of Crime Act 2002 (POCA) forbids exceptions to a Restraint Order that would provide for legal expenses during the course of a criminal investigation or any subsequent proceedings. This can make it especially difficult to pay for the legal support you need to challenge the order or defend yourself during a criminal investigation.

It may be possible to release funds to pay for legal expenses in civil proceedings, even where those proceedings are associated to some degree with a criminal investigation. However, very specific advice would be required if you feel an application in those terms may be justified. Our article on variation of a restraint order offers further information on varying an order to pay legal fees in civil proceedings.

Often, the only way to acquire legal representation under these circumstances is to seek private funding assistance from a third party. We can help with this process to ensure it does not offend the terms of the restraint order. For example, your company or a family member (with no relevant connection to the investigation) may be able to assist with funding. However, it is important to ensure that you obtain legal advice in this area -  otherwise, this could be a form of ‘contempt of court’.

In some cases, civil legal aid is available to help with applications to vary or discharge a restraint order. However, this is very difficult to obtain and we rarely represent on a publicly funded basis in these circumstances.

Some insurance policies include a term allowing for payment of legal fees in applications concerning the protection of an interest in an asset. We can advise on whether an insurance policy contains such a term.

Finally, if the criminal investigation is sufficiently complex, we may assist free of charge in some aspects of the restraint proceedings. This is sometimes possible where, for example, a charge in the criminal case is imminent and criminal legal aid is going to be available in the ‘main’ proceedings. In very complex cases where a charging decision is many months (or perhaps years) away, we will normally agree to meet free of charge to give some initial advice. The extent to which we can assist free of charge from that point will depend upon the individual circumstances of the case.

We often represent companies or individuals in circumstances where their legitimate assets have been caught up in a defendant’s financial affairs and have been made the subject of restrictions within the terms of a restraint order. This often happens where the defendant co-owns a particular asset with a company or family member and the whole asset has been restrained. It may occur where the investigators have wrongly attributed ownership of an asset to a defendant and the legitimate owner wishes to release the asset from the restraint order. 

Funding an application to vary or discharge the relevant part of a restraint order in those circumstances is more straightforward. The named person can normally access their own funds to instruct lawyers in this respect because the restriction usually relates to a specific asset, rather than ‘all assets’. We can advise on the availability of insurance funding in these circumstances, particularly where company assets are involved. Otherwise, we can normally offer fixed fees to named persons for preparation and specific applications, which can give you security and peace of mind with regard to your assets.

There are many different reasons why you may need legal representation while subject to a Restraint Order. Trying to discharge or vary the order is only one component of this. Another important consideration is that a Restraint Order is only one element of a longer criminal investigation process. The purpose of this type of order is to freeze any assets that law enforcement bodies believe may originate from, or be used for, criminal activity, so that these organisations have more time to investigate and determine the provenance of the relevant  funds.

In other words, if you are the subject of a Restraint Order, you may be under suspicion of involvement with criminal activity or connected to an investigation, and you should instruct a solicitor to support you as quickly as possible to ensure you can defend yourself. You may be invited (or compelled) to attend an interview with the authority in question, and you will need legal support to prepare you for this - or in some cases, to avoid any criminal charges being brought.

A Restraint Order is typically a long and complicated legal document, and you may need support to understand the restrictions or provisions. Further, a solicitor can advise you on the potential outcomes of the course of action you decide to take before you proceed. In this way, you can respond effectively and have the best possible chance of a positive outcome.