Following criminal proceedings, a Prosecuting Authority will regularly seek a Confiscation Order under the Proceeds of Crime Act 2002 (“POCA”) to recover assets from an individual. Restraint Orders effectively freeze the individual’s property and assets from an early stage in the investigation to allow a Confiscation Order to be satisfied. A Restraint Order will prohibit anyone specified in the order from dealing with the assets.
The Serious Crime Act 2015 brought in some important changes in respect of Restraint Orders. In particular, changes have been made to the test for obtaining a Restraint Order whilst Prosecuting Authorities are investigating a suspect.
The previous test under s.40(2) POCA was that the authorities had to satisfy the Court that there was a ‘reasonable cause to believe’ that the suspect had benefited from his criminal conduct.
The Serious Crime Act 2015 amends s.40(2) POCA so that the authorities must now only satisfy the Court that there is ‘reasonable cause to suspect’. This significantly lowers the test and will make it much easier for Prosecuting Authorities to obtain a Restraint Order at a much earlier stage in the investigation.
While this seems like a small change, the Prosecution could satisfy the test simply by one person’s belief whereas previously they would have to provide sufficient evidence to satisfy the test, thus much lowering the test.
However, amendments have been introduced under section 41(7) POCA to allow the Court to monitor the progress of an investigation. The Court can now include a requirement for the Prosecuting Authority to report to the Court on the progress of the investigation and if proceedings are not started within a reasonable time they must discharge the order.
This provision should protect a suspect’s assets from being frozen for a long period of time where the prosecution have made inadequate progress in the investigation. The Court will determine what constitutes reasonable time based on the facts of each case.
Hine Solicitors act for individuals who are subject to restraint as a result of a criminal investigation or connected third parties who are not subject to investigation but face restraint. We can advise on challenging the imposition of a Restraint Order or making applications to vary the Order. Given the recent changes, it is important that you seek legal advice as soon as possible if you face the possibility of an Order.