The terms of a restraint order can have an overwhelming impact on an individual’s financial situation and in many cases can also negatively affect third parties, such as family members and business associates. While restraint orders are very restrictive, there are actions that can be taken to limit their impact.
Harris Solicitors is a firm of POCA experts who specialise in forcefully challenging all aspects of restraint orders in order to minimise the disruption to the personal and professional lives of all those affected. If you are the subject of a restraint order, it is important that you get appropriate advice from experienced legal professionals without delay. Our highly qualified team are available around the clock to provide reliable restraint order advice and support.
The purpose of this guide is to provide an overview of POCA restraint orders, their impact and the ways in which an order can be varied or discharged.
Restraint orders are issued by the court in order to block assets that are believed to have been acquired through criminal conduct from being spent, given away, concealed or transported abroad. This means the property remains intact for the purpose of criminal investigation, and potential confiscation if the suspect is later convicted.
An application for a restraint order is made to the Crown Court by the police or prosecuting authority. When applying for a restraint order, the authority must show that there are reasonable grounds to suspect the individual or company named in the application has benefited from criminal behaviour and that there is a genuine risk that the assets will be dissipated.
Applications can be made any time after a criminal investigation has commenced, even before an arrest or charge has been made. It is not customary or necessary for the subject of a restraint order to be made aware of the application; they will not normally be aware until the order has been served on them.
The provisions of a restraint order can be severe for individuals and businesses; even the court acknowledges that their powers under POCA are draconian. For example, not only can a restraint order be issued against a suspect, but also an innocent party who has benefited from the proceeds of a crime, like a spouse or business partner who was given a ‘tainted gift’ from the suspect.
There are three main provisions usually contained in a restraint order. These are:
Failure to comply with the restraint order provisions may lead the subject to be held in contempt of court which could result in a fine or a custodial sentence. It’s therefore crucial that legal advice is obtained as soon as an order is served to avoid additional charges.
The subject of a restraint order is entitled to apply to the court to vary or discharge the order. This is an area in which our firm has had exceptional results. Our first position is to consider the grounds on which the order is based to determine whether they are justified. For example, 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.
However, if it is unlikely that the order will be discharged, the next step would be to consider ways to relax the terms in order to reduce the impact on the subject, and any third parties affected. It is almost standard to apply to the court for the living allowance to be increased. This will require presenting all the subject’s living expenses to the court and suggesting a reasonable and realistic variation. It may also be possible to vary the terms of the restraint order so that the subject can continue their legitimate business affairs, clear a debt owed to a third party (for example, a mortgage payment) or so that one or more of the subjects of the order is removed.
Restraint orders can cause serious problems for individuals. Successful representation in proceedings requires an understanding of the practical and emotional effects, advanced knowledge of the law and procedure and a proactive and robust approach. We have ample experience and our reputation in this specialist area continues to grow.
When you contact Harris Solicitors for assistance regarding a restraint order, in the first instance we will ensure you meet all the requirements (for example, to disclose information on all the assets you own) so as to avoid a penalty for non-compliance. Our highly experienced team will then thoroughly analyse the basis for the order and its terms in order to prepare a case to vary or discharge it where possible.
If you are the subject of a restraint order, the sooner you speak with a specialist the better the outcome is likely to be. Our team of experts are available 24/7 to provide effective advice and assistance on all POCA restraint order matters. Get in touch by calling 01274 392 177 or by calling our out of office emergency numbers (07872835267 or 07590289197).
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