Financial Restraint Orders | Kangs Solicitors

Kangs Solicitors are regularly instructed by both individuals and corporate clients who have been made subject to Restraint Orders.

The issue of such an Order is  not restricted to situations where there has been a  conviction in respect of a criminal offence and the legal powers may be exercised in a variety of other circumstances.

Amandeep Murria of Kangs Solicitors outlines the statutory provisions.

Restraint Provisions | Kangs Financial Restraint Solicitors

The Proceeds of Crime Act 2002 provides as follows:

Part 2 Confiscation: England and Wales

Restraint orders

40. Conditions for exercise of powers.

The Crown Court may exercise the powers conferred by section 41 if any of the following conditions is satisfied.

(1) The first condition is that—

             (a) a criminal investigation has been started in England and Wales with regard to an offence, and

              (b) there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct.

(2) The second condition is that—

            (a) proceedings for an offence have been started in England and Wales and not concluded, and

             (b) there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(3) The third condition is that—

             (a) an application by the prosecutor or the Director has been made under section 19, 20, 27 or 28 and not concluded, or the court believes that such an application is to be made, and

             (b) there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(4) The fourth condition is that—

             (a) an application by the prosecutor or the Director has been made under section 21 and not concluded, or the court believes that such an application is to be made, and

             (b) there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount (as defined in that section).

(5) The fifth condition is that—

             (a) an application by the prosecutor or the Director has been made under section 22 and not concluded, or the court believes that such an application is to be made, and

             (b) there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

• The second condition is not satisfied if the court believes that—

            (a) there has been undue delay in continuing the proceedings, or

            (b) the prosecutor does not intend to proceed.

• If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—

            (a) there has been undue delay in continuing the application, or

            (b) the prosecutor or the Director (as the case may be) does not intend to proceed.

•  If the first condition is satisfied—

             (a) references in this Part to the defendant are to the alleged offender;

             (b) references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;

             (c) section 77(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.

41. Restraint orders

1. If any condition set out in section 40 is satisfied the Crown Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him.
2. A restraint order may provide that it applies-

• to all realisable property held by the specified person whether or not the property is described in the order ;
• to realisable property transferred to the specified person after the order is made .

 3. A restraint order may be made subject to exceptions, and an exception may in particular -

• make provision for reasonable living expenses and reasonable legal expenses
• make provision for the purpose of enabling any person to carry on any trade , business, profession or occupation ;
• be made subject to conditions.

Financial Restraints | Kangs Financial Crime Team

At Kangs we have a dedicated team specialising in Restraint, Confiscation, POCA, Asset Forfeitures and all associated financial situations and we are happy to provide clients and fellow professionals with an initial no obligation consultation.

Should you require assistance and guidance in respect of any such Orders,  please contact us immediately for the purposes of discussing matters in confidence, knowing you shall be effectively advised every step of the way.

Arrangements can be made to meet at any of our 3 offices – Birmingham, London or Manchester.

Please feel free to contact our team through any one of the following:

John Veale
jveale@kangssolicitors.co.uk
0121 449 9888 | 020 7936 6396

Amandeep Murria
amurria@kangssolicitors.co.uk
0121 449 9888 | 0161 618 1098