Whether you are facing a restraint order, cash forfeiture or the possibility of your account being frozen you have to be seeking the right legal advice immediately.
The Proceeds of Crime Act 2002 (POCA) gives the authorities a wide range of powers in these areas. Delaying seeking advice or not obtaining the best advice can seriously jeopardise your chances of retaining your assets.
At Rahman Ravelli, we are recognised as experts in all aspects of this field of law – a field that can place many demands on those who are the subject of such proceedings. Our experts ensure the authorities do not take what they are not entitled to take.
This is because such activity by the authorities can be contested.
At Rahman Ravelli we believe in pro-active defending, the early implementation of effective strategies and strong, intelligent challenges to the assumptions that have been made.
We understand the importance to individuals and companies of minimising the effect of any action by enforcement agencies. In appropriate cases, we apply to the court for orders to be discharged or varied to ensure that our clients can continue their normal lives.
A restraint order is essentially the first step in the authorities’ attempt to confiscate your assets. An account freezing order is a recently-introduced but potentially far-reaching tool that the authorities can now use to control an individual’s bank and building society accounts. It can be seen as the modern-day equivalent to cash forfeiture, where the authorities use the law to take a person’s money.
The serious nature of all three of these and the long-term impact they can have make it vitally important that the right advice is sought immediately. Failing to do so can mean time limits passing, chances to challenge allegations being missed and even contempt of court action being brought for failure to comply with certain legal requirements.
These are worst-case scenarios. But they need to be avoided. At Rahman Ravelli we ensure such problems do not arise.
We handle each and every stage of such proceedings to ensure nothing is left to chance and that you are given the best possible opportunity to defend what is yours.
A restraint order is a court order that freezes specified assets belonging to a defendant or a third party, preventing them from being dissipated, transferred, or otherwise dealt with pending a criminal investigation or proceedings. Restraint orders in England and Wales are made by the Crown Court under section 41 of the Proceeds of Crime Act 2002 (POCA). They are typically obtained by a prosecutor or investigative authority at an early stage of proceedings, often before any charge has been brought.
Applications for restraint orders are made by prosecutors — typically the SFO, the NCA, the CPS, HMRC, or the FCA, depending on the nature of the investigation. The application is usually made without notice to the defendant (ex parte), which means the person whose assets are to be restrained has no opportunity to make representations before the order is made. This makes the ability to challenge the order as early as possible critically important.
A restraint order can be challenged on a number of grounds, including: that there are insufficient grounds to believe that a benefit has been obtained from criminal conduct; that the assets restrained do not belong to the person under investigation; that the order was obtained in circumstances that constitute a material non-disclosure by the applicant; that the prosecutor has not complied with their duty of full and frank disclosure on the ex parte application; or that the scope of the order is disproportionate. Third parties with an interest in restrained assets can also apply to have their proprietary interests recognised.
Yes. Under POCA, a restraint order can extend to assets held by third parties — including spouses, other family members, and companies — where the court is satisfied that those assets represent a gift from the defendant made to put them beyond the reach of creditors or potential confiscation. This wide reach means that the effect of a restraint order can extend well beyond the direct financial affairs of the person under investigation, affecting the entire household and associated business interests.
A restraint order typically includes provision for the subject to meet reasonable living expenses and, where appropriate, reasonable legal expenses. The prosecutor must provide a reasonable living allowance, and the court can vary the order to permit specific payments to be made. However, applications to meet expenses from restrained assets are often contested by the prosecution and must be supported by evidence of the nature and amount of the expenditure required. Legal expenses can be met from restrained assets, but only up to a point, and must be properly evidenced.
If a restraint order is in place when proceedings are discontinued or a defendant is acquitted, the order lapses and the restrained assets are released. Importantly, the defendant or affected third party may then have a claim for compensation for losses suffered as a result of the restraint order if they can show that serious default on the part of the investigating or prosecuting authority caused those losses. However, such claims are difficult to establish and require specialist legal advice.
A restraint order is a statutory criminal freezing mechanism under POCA, made by the Crown Court in the context of a criminal investigation or proceedings. A freezing injunction (formerly known as a Mareva injunction) is a civil remedy available from the High Court in support of civil litigation, most commonly civil fraud or asset recovery proceedings. Both can prevent assets from being dissipated, but they arise in different legal contexts, are governed by different statutory and common law frameworks, and are subject to different tests and procedures.
A restraint order can have immediate and devastating practical consequences — freezing bank accounts, preventing business from being carried on, and cutting off access to funds needed for everyday life. Challenging the order or applying to vary it to permit legitimate expenditure requires specialist knowledge of POCA and of the Crown Court's practice in restraint proceedings. Early legal advice maximises the prospects of a successful challenge or variation, and ensures that the full range of options — including challenging the evidential basis of the order — is properly explored.
