A restraint order can be issued at various stages of a criminal investigation or proceedings. It can be granted before any charges are brought if there is a reasonable cause to believe that the individual has benefited from criminal conduct. It may also be issued later in the investigation or after charges have been brought, with a view to preserving the assets until the conclusion of the trial or until a subsequent confiscation order is enforced. 

The order is usually sought by the prosecution and must be granted by a High Court or Crown Court judge. This may be done without notice, which also means that you will be made the subject of the restraint order without being informed in advance. If you are aware that you are under investigation, there is a possibility that a restraint order may be issued at any time and it is vital to work with a solicitor to prepare and to understand your options.

The exact timing of when an order will be issued varies from case to case the court must be convinced that there is a real risk that the assets would otherwise be dissipated or put beyond the reach of the authorities. This can take time to prove, and may depend on the circumstances of the case, the nature of the alleged offences, and the evidence available to suggest that the individual has assets that may need to be restrained.

Investigating authorities such as the police, the Serious Fraud Office, the Crown Prosecution Service, HM Revenue and Customs and the National Crime Agency can secure restraint orders during their investigations. 

These orders are granted by a High Court or Crown Court judge and can be subject to various terms and conditions. The authority must demonstrate the need for a restraint order to a higher standard than for other orders of this type (including the Account Freezing Order). 

To obtain a restraint order, the following legal requirements generally need to be met:

• There must be a reasonable cause to believe that the defendant has been involved in and benefited from criminal conduct.
• It must be shown that there is a real risk that the defendant may dissipate the assets unless they are frozen by the restraint order.
• There must be an ongoing or intended legal proceeding for an offence where a confiscation order may eventually be pursued.

While an investigation must be ongoing, the subject of the investigation may not be aware that it is underway. They may only become aware of the restraint order once it has been issued by the court and served upon the relevant parties. Challenging the terms of an order and re-establishing control over assets can be a complex exercise. 

If you find yourself in this situation, speak to a solicitor, as legal advice is necessary to navigate the complexities involved in these proceedings successfully.

Because the assets that can be gained through criminal activity are varied, restraint orders are comprehensive in the types of assets to which they can be applied. They include:

• Bank accounts: this includes all types of bank accounts, both domestic and international.
• Property: real estate, including houses, apartments, and land.
• Vehicles: cars, boats, motorcycles, or any other vehicles.
• Investments: stocks, bonds, or any other financial instruments.
• Valuable items: jewellery, art, antiques, or any other items of significant value.
• Business assets: business accounts, equipment, inventory, or any assets owned by a business entity associated with the individual.
• Cash: physical cash held by a suspect or found during searches.
• Crypto-assets: which normally means restraining the contents of specified crypto-wallets.

Unlike an account freezing order, a restraint order is generally applied internationally. If assets are held overseas, UK authorities may work with their international counterparts to identify and restrain these assets if they feel a separate order is required in the relevant jurisdiction. However, a reference to the overseas asset in the UK restraint order means that if the subject of the order dissipates the overseas asset, they can be in contempt of court, which is punishable in the UK by a term of imprisonment. Separately, a defendant may be ordered to re-patriate assets to the UK. Failure to do so can also be a contempt of court.

Financial investigators who specialise in tracing and identifying assets will analyse financial records, bank statements, and transaction histories to identify any assets they believe are relevant to their investigation. Banks and other financial institutions can be compelled to provide information about an individual's assets and accounts, and law enforcement agencies may use surveillance or intelligence-gathering techniques to uncover hidden assets or obtain warrants to search properties and seize items of value or documents that can lead to the discovery of assets.

Once the assets have been identified, the court can issue orders to freeze bank accounts, prevent the sale or transfer of property or other assets, and take control of physical items of value. The details of the restraint order will specify exactly what is restrained and how the assets are to be managed during the restraint period.

Once a restraint order is in place, the bank accounts of the individual (or entity, in the case of a business) are frozen. This means that the account holder cannot withdraw money or make any transactions that would deplete the funds in the account.

Similar to bank accounts, personal property such as homes, cars, and other valuable items can also be restrained. The individual cannot sell or dispose of these assets while the restraint order is in effect. In the case of properties like houses, this does not mean the individual has to move out, but it does mean that the property cannot be sold or transferred until the restraint order is lifted or modified by the court.

While the intention behind a restraint order is not to punish the individual but to preserve assets until the conclusion of legal proceedings, it can often have the opposite effect. The exact conditions and provisions of a restraint order vary significantly based on the specifics of each case, the nature of the assets, and the legal arguments presented to the court. However, in many cases they affect the subject's ability to pay their living expenses and prevent them from securing legal representation. Businesses may be unable to operate without access to funds for their operating costs. In these cases, it is crucial to seek legal guidance, both to ensure you comply with any order that is in place and to protect your rights.

In some cases, it may be possible to challenge or appeal a restraint order and have it discharged. The circumstances under which this is possible vary, but a solicitor can talk to you about your options and help you to understand the potential outcomes of each course of action.

It may be possible to make a legal challenge against the order if it is unfair or if there were mistakes in securing it. This may be an option in cases where the order is too broad, unfairly restricts the individual’s ability to meet reasonable living expenses, or was granted on the basis of inaccurate information. There may be other compelling reasons why the order should not remain in place as it currently stands and a solicitor can help you to evaluate whether or not this applies to your case.

Applying to appeal a restraint order or having it discharged can involve complex legal arguments and a detailed understanding of the Proceeds of Crime Act 2002 and other relevant legislation. It is also governed by strict rules regarding time limits and the grounds for appeal, all of which means that working with an expert criminal defence solicitor is vital.

An appeal against a restraint order typically needs to be based on grounds such as a legal error in how the original decision was made, the consideration of irrelevant factors, or the failure to consider relevant factors. The subject of the order will need to provide substantial evidence and legal arguments to persuade the court to vary or discharge the order. This might include proof of the legitimate origin of assets, the undue hardship caused by the order, or arguments regarding the proportionality or fairness of the order.

If an appeal is successful, the higher court may quash the restraint order or send the case back to the lower court with instructions to reconsider it in light of the higher court's findings. A solicitor can help you to understand the most likely outcomes and prepare you for this process. Challenging or appealing a restraint order is a serious legal undertaking and it is crucial to seek competent legal advice to understand the strength of your case, the likelihood of success, and the potential risks involved in challenging or appealing a restraint order.

The duration of restraint orders varies significantly based on the specifics of the case and the legal proceedings. Unlike an Account Freezing Order, there is no maximum time limit for a restraint order, meaning that it will not expire automatically. Instead, it is closely tied to the progress and resolution of the legal proceedings for which it was imposed.

Typically, a restraint order remains in place until the conclusion of the legal proceedings, including trial, sentencing, and any subsequent confiscation proceedings. In some cases, the order can be extended if the court deems it necessary, especially if legal proceedings are ongoing or if there is a risk of assets being dissipated. Restraint orders can also be reviewed periodically, and parties can apply for them to be varied or discharged if there is a legitimate basis for doing so.

One such basis is if investigators are no longer actively working on the case or making progress. Sometimes in these cases, the restraint order will remain in place indefinitely even though there is no longer any legitimate basis for its existence. A solicitor can help you to demonstrate that there are reasonable grounds to discharge the order and restore your control of your assets.

Once a court issues a restraint order, it is served on the parties it affects, including the individual or business whose assets are being restrained and any third parties like banks or financial institutions that hold these assets. These financial institutions and any other asset holders are required to comply with the order, typically by freezing the assets to prevent any transactions that may diminish their value.

Authorities responsible for the enforcement of the order, whether that means the police or a designated agency, will monitor compliance and can investigate any suspected breaches of the order. Breaching a restraint order is a serious matter and can lead to further legal consequences, so it is important to make sure you understand the terms of the order and how they apply to you in order to maintain strict compliance.

The restrained party may be required to disclose all their assets and provide regular updates. Failure to disclose assets or providing false information can also lead to additional charges. If you are under investigation, you may also be asked to attend an interview to give evidence and answer questions. It is vital to instruct a solicitor before attending any interviews, to ensure you are properly prepared and to begin mounting a defence at the earliest opportunity.