Sam Healey and Sarah Wylie have secured the discharge of two Restraint Orders made against two clients after they were able to show that the Crown had failed to comply with their duty of candour and misled the Court in their initial ex parte application for the Restraint Orders.

The Client’s Problem

Our clients were made the subject of Restraint Orders after they were charged and appeared at the Magistrates Court in relation to allegations of conspiracy to supply psychoactive substances, namely NOS cannisters. This had followed a police investigation that lasted more than 2 years and during this time all of our client’s businesses were investigated in addition to their own financial position and general lifestyle.

Unbeknown to our clients, the police made an ex parte application to the Crown Court for a Restraint Order which prevented them from accessing or using any assets in this jurisdiction or abroad. It was only after they were unable to withdraw every day living costs from their accounts did it transpire that formal Crown Court Restraint Orders had been made without them being notified.

How JMW Helped

In response to the draconian orders obtained by the Crown, we immediately responded with robust representations to the dedicated Proceeds of Crime Unit within the Crown Prosecution Service. Having eventually obtained service of not only the Restraint Orders, but also the evidence relied upon by the Crown when applying for the orders. We were then able complete our own investigation to ensure that the correct approach and procedure was applied, and that the correct and full facts had been provided to the Judge when applying for the orders.

We were able to show that the applications made by the Crown were factually incorrect, that the financial investigator had failed to properly analyse the financial position thus undermining the suggestion that assets were being dissipated, and that the Court had not been provided with all relevant evidence.

The Outcome

A formal application to discharge the Restraint Orders was made and the matter was listed for a contested hearing. At the hearing and following oral evidence, we were able to show the Court that the Crown had misled the Court when initially applying for the Restraint Orders, that the factual position was different to that of which the Court had been told and that the Court had not been provided with all relevant business documents. In addition, we were able to show that the orders made by the Court lacked integrity, that there was no risk of dissipation of assets and that the officer applying for the orders provided misleading information to the Court.

We were able to demonstrate that the Crown were underprepared, under evidenced and as this was an ex parte application, the Judge had not been given all relevant information and, worse, had been misled.

The presiding Judge accordingly agreed to quash and discharge the Restraint Orders and an adverse costs order was applied for to recover our clients legal costs.