If you are subject to a Proceeds of Crime (POCA) criminal investigation, it is possible a judge may make a financial Restraint Order against you. This will prevent you from easily moving money in or out of your accounts and can have serious consequences if it prevents you from meeting your financial commitments.

Just recently our firm had a client who was unable to begin the repayments on his Covid Bounce Back Loan due to a Restraint Order made against him. In such cases it is best to seek a solicitor who can make applications to the court to Vary the Order, to allow some money in or out, or even to apply to have the Order Discharged entirely.

If you need experienced, specialist lawyers who can advise you and help if you have been served with a Restraint Order or believe you might soon be, please do get in contact. David Roy, specailist in criminal law, is based in our Birmingham Office but he also advises clients via our Central London office. David has clients locally, nationally and also internationally.

What is a POCA Restraint Order 

Restraint Orders are utilised to freeze assets to preserve those assets for any future Confiscation Proceedings as part of the Criminal Process. Confiscation proceedings are designed to part convicted defendants from any money that they made as a result of their criminal activity.

Allowances may be made from an individual’s assets to enable living and other expenses to be met and as such can be the subject of application to the Court.

The Proceeds of Crime Act 2002 allows the investigator to apply to a Crown Court judge, without giving prior notice to the suspect, to restrain (freeze) assets of that suspect and possibly of 3^rd parties such as business partners and family members.

These sorts of orders will be used when the Court believes someone may have benefited from Criminal Conduct. These will often be in relation to long term offences such as Fraud or Drug Trafficking where it is reasonable to assume that the accused has been benefiting from their criminal conduct for some time. There are many offences that can lead to an application for a Restraint Order, if it can be shown that the suspect has derived a financial benefit.

Legal test and process for obtaining a Restraint Order

An application for a financial restraint order can be made in the Crown Court before arrest or charge by the police or other prosecuting Authority. Tp obtain an Order the copurt must be satisfied that there are reasonable grounds for suspecting the individual or company has obtained money from criminal activities and there there are genuine risks that without an order those monies will be moved to prevent recovery.

Varying or aplying to discharge a Restraint Order

The subject of a restraint order is entitled to apply to the court to vary or discharge the order. In some cases where a restraint order is anticipated, it may be possible to negotiate some form of security is provided instead of a more wide-ranging and restrictive restraint order.

Ways in which we assist clients include:

• Advising on whether the legal grounds on which the order was obtained are capable of challenge. It may be possible to argue that there is no real risk that the assets will be dissipated. If the court agrees that the order is not justified, it will usually be discharged.
• Considering a secondary position whereby the court might be persuaded to relax the conditions of the order. This may also apply to 3^rd parties who might also be impacted by the restraint order such as business contacts.

How we can help

If yuou have been served with a POCA Restraint Order we can advise you on applying to vary or discharge the Order and also of course can represent you in any investiugation or defebding any criminal charges against you.