A restraint order is a Crown Court order that has the effect of prohibiting a specified person from dealing with their assets in this country or abroad. It can be made before any criminal charge has been authorised against an individual(s) or after charge when a person becomes a defendant in the proceedings. This specific type of order is designed to prevent any assets from being dissipated, liquidated or moved without consent of the prosecution, and also ring-fences them for potential confiscation proceedings at a later date.
When Does a Restraint Order Typically Take Place?
Typically, a restraint order is sought at the very beginning of any investigation carried out by Her Majesty’s Revenue and Customs, the Police, the Serious Fraud Office or any other law enforcement agencies – this can sometimes be many months or even years before any charge is authorised against an individual or business. . It is important to note that although a restraint order carries risks for the individual or business impacted, it is usually implemented at the very beginning of the investigative process and therefore provides an opportunity to take expert advice and gain control of the situation in order to achieve the best possible outcome.
What are Confiscation Proceedings?
Confiscation proceedings follow when a defendant is convicted of a criminal offence. Its purpose is to recover financial benefit that has been gained following the offending behaviour (criminal conduct) and in certain circumstances the Court may make certain assumptions in relation to assets, income and expenditure in the six years before the criminal proceedings were brought. In particular, it may be assumed that such assets, income or expenditure has derived from criminal conduct and therefore a confiscation order will be calculated accordingly. Similar to restraint orders, the impact of confiscation proceedings often goes beyond the offender, especially when jointly owned property is included in the confiscation order (for further details see here).
Solicitors act on behalf of both businesses and individuals who have had their assets restrained, are under investigation, face criminal proceedings or confiscation proceedings, or have become embroiled in confiscation proceedings as innocent third parties. In relation to confiscation proceedings, a heavy burden of proof is placed upon a defendant and discharging that burden requires careful legal advice.
How Can a Restraint Order Affect an Individual?
Restraint orders can be incredibly stressful for the individuals being investigated as they are unable to access any of their assets and funds – this can be more concerning if the order is believed to be unlawful. It is also a serious invasion of privacy and can cause issues with living and legal expenses.
Why Challenge a Restraint Order?
Although the concept of a restraint order is to be ‘protective’, often the investigators can go too far, not provide the Court with all of the details of the investigation or target the wrong individual or assets.
It is important if you find yourself under investigation or have received a restraint order, that you seek legal advice as soon as possible. If you are unable to pay for your legal support due to the restraint order, you may need to seek financial assistance from friends or family members.
How to Challenge a Restraint Order
If you want to challenge a restraint order, you can apply to the court to have the order discharged or varied and it is imperative that you retain sound legal advice to help with the following stages of the process:
- Identifying the lawfulness of the restraint order;
- Advising third parties on their rights;
- Applying for the release of restrained funds to maintain liabilities due;
- Assistance with repatriation of assets;
- Payment of specific debts;
- Challenging restraint orders by applying for discharge and variation to the court;
- Advice and support surrounding liquidation or corporate recovery;
- Preparing any statements required by the court order;
- Challenging the restraint order via an application to the court to vary or discharge it;
- Negotiating with the prosecution regarding living allowance issues;
- Appealing the outcome or contesting confiscation proceedings;
- Dealing with receivers appointed to force the sale of restrained assets
Authors: JMW Solicitors