A restraint order is a legal tool that the police and other authorities can use during criminal investigations. The power to obtain one can be found under the Proceeds of Crime Act 2002 (POCA) and if a restraint order is granted, it restricts someone from disposing of or dealing with their assets. These might include funds in a bank account or building society account, or property. This would apply during the course of an investigation and / or any criminal proceedings if they are commenced. It is designed to prevent individuals or entities from dissipating assets that may later be subject to confiscation or recovery, particularly in the case that the person or organisation is convicted of a crime.

The primary purpose of a restraint order is to ensure that assets are available to satisfy any confiscation order if a person is convicted of a crime. This is used particularly when the crime involves financial gain or benefits, as a means of recovering criminal funds or returning stolen property.

In some ways, a restraint order is similar to an Account Freezing Order (AFO), which is widely used during financial investigations in the UK. However, it is less restrictive and would apply to all assets (as opposed to just an individual account). Here, the expert criminal defence solicitors at JMW explain what a restraint order is, how they are used by investigators, and what people who are placed under a restraint order can do to access their funds.

How do restraint orders work?

Restraint orders are typically sought by law enforcement agencies such as the Crown Prosecution Service, the Serious Fraud Office or the police, during the early stages of a criminal investigation. An application for a restraint order can be made even before any charges have been formally laid or authorised. These authorities apply to the Crown Court to have the order granted.

There is flexibility in the scope of restraint orders, much more so than in AFOs. The order can apply to all of the assets owned by a person or business under investigation, including bank accounts, property, vehicles, shares, and other valuable items.  Alternatively, it may only apply to specific assets only as named on the order. It can also extend to assets held by third parties if it is believed that these assets are controlled by or connected to the person under investigation. The assets may be based anywhere in the world.

The order prohibits an individual from dealing with, selling, or transferring the assets restrained by it, unless they have the court’s permission. It is normally possible to access funds for living expenses or operating expenses for a business. However, it requires the support of an expert restraint order solicitor to successfully have the court order discharged (meaning it is lifted) or varied (meaning that funds for specific purposes are released).

Naturally, the difficulty in accessing funds can be very inconvenient, especially given it may apply until the conclusion of the criminal proceedings or until the restraint order is discharged by the court. If you breach a restraint order you would be in contempt of court and this is a serious offence. It can lead to imprisonment, fines, or other penalties.

What can you do if you are subject to a criminal investigation?

There are various legal steps that we can take to help you take back control of your assets and funds. One of the primary safeguards for individuals in this scenario is the requirement for judicial oversight. A Crown Court judge must be satisfied that a number of statutory requirements have been met.  They cannot grant the restraint order on the basis of suspected criminal conduct alone. It is a relatively low threshold compared to the standard required for a conviction, but it still requires the prosecution to present evidence and, in some cases, there is scope to challenge this before the order is granted if notice of the application is provided.

The court must also consider whether the restraint order is proportionate, by weighing the potential harm to the individual against the need to preserve assets that may be subject to confiscation. This offers another opportunity to issue a legal challenge in some cases.

Once a restraint order is granted, the court is required to keep restraint orders under review. If circumstances change - for example, if the prosecution’s case weakens, or if the financial situation of the restrained person changes significantly - the court may decide to discharge or amend the order. Alternatively, you may be able to apply to vary or discharge the order through your solicitor.

• Application for variation: in some cases, the restrained person can apply to the court to vary the terms of the order. For example, they might request the release of funds to cover living expenses or other necessary costs. The court has the discretion to grant such variations if it believes they are required.
• Application for discharge: If there are grounds, the person can apply for the order to be discharged entirely. For example, this might be sought if the investigation does not result in charges, if there is insufficient evidence to justify the continuation of the order, if the investigation encounters an unreasonable delay, or if the court determines that the order is no longer necessary.

There are several legitimate reasons why you might be able to apply for a discharge of the order. The law recognises that criminal investigations can sometimes take a long time and that this will potentially leave individuals under the stress of a restraint order for an extended period. To prevent undue hardship, the courts can discharge a restraint order if there is an unreasonable delay in the investigation or prosecution of the case. If a case drags on without progress, your solicitor may be able to argue that the continued existence of the restraint order is unjustified. The court will assess whether the delay is reasonable and whether it is fair to maintain the order under those circumstances.

Penalties under a restraint order

While confiscation orders may seem like the biggest risk for those who are subject to restraint orders, they might face penalties for breaching the order even if they are not convicted of a crime. Any dealing with the restrained assets can result in serious consequences, including contempt of court proceedings that can result in fines, imprisonment or other penalties.

If you are unsuccessful in discharging a restraint order and later convicted, you will then need a solicitor who also specialises in confiscation proceedings. Having an expert solicitor by your side throughout is the best way to ensure that any issues during the investigation and proceedings are addressed robustly and, where they can be, to your advantage. The solicitor can manage the process on your behalf, prepare you for everything from police interviews to a criminal trial, and help you to understand your options at all stages.