Discharging a POCA Restraint Order prior to charge
A Restraint Order (‘RO’) can be made under s. 41 of the Proceeds of Crime Act 2002 (‘The Act’). Once in force, an RO will prohibit anyone specified in the order from dealing with any realisable property that they hold.
An RO can be made before a person has been charged with, or convicted of, an offence. However, s. 69(2)(b) of The Act requires that the Court must only make an RO in those circumstances with a view to ensuring that there is no dissipation or diminution of realisable property. ‘Realisable property’, in this context, is any property which might be used to satisfy a Confiscation Order made post-conviction.
In simpler terms, the purpose of an RO made pre-charge is to prevent an alleged offender from disposing of their (supposedly ill-gotten) assets as soon as they realise that they are the subject of a criminal investigation. This is intended to ensure that there is enough money available to satisfy a Confiscation Order if the offender is subsequently convicted.
Our clients’ story
Our clients were made subject to an RO following allegations of involvement in money laundering and a complex fraud. The CPS applied for an RO without notice, and were granted one. The RO was unlimited and so our clients were prohibited from dealing with any of their assets, whether in their sole names or jointly held. A total of more than £1,000,000 was restrained, notwithstanding the fact that the benefit our clients were said to have received from their alleged criminal conduct was only around a tenth of this figure.
Initially, we approached the CPS Proceeds of Crime Unit inviting them to agree to a variation of the RO so that it was limited to a figure commensurate with the amount said to be the benefit of the alleged criminal conduct. In the absence of a substantive response to this correspondence, we lodged a full, detailed application setting out the legitimate basis on which our clients had acquired their assets, seeking discharge of the RO and, in the alternative, a variation to limit it. We submitted that the RO restrained assets that were exponentially larger than would likely be confiscated following conviction, and that the RO was clearly disproportionate as a result.
On reviewing the case, the CPSPOC unit agreed that the RO was no longer proportionate and that it should therefore be discharged. We are now considering whether we can successfully recover our client’s legal costs in having to make this application, on the basis that the CPS conduct in obtaining such a far-reaching RO was unreasonable.
If you have been made subject to a Restraint Order, or are the subject of a criminal investigation, please contact the Crime and Regulatory Department on 020 7630 4300.