Restraint orders under PoCA 2002

Restraint orders can be obtained by the authorities acting under the Proceeds of Crime Act 2002 – but in what circumstances and what are the effects?  This blog article attempts to answer some of the most common questions about restraint orders.


What is a restraint order?

Essentially a restraint order under the Proceeds of Crime Act 2002 is an order made by a Crown Court judge, normally at the request of the police or other investigating or prosecuting authority, which effectively ‘freezes’ the assets (including bank accounts) of an individual or a company.  A single restraint order may apply to several connected individuals and / or companies.  A restraint order is typically designed to ‘freeze’ all the assets of the individual(s) and company(ies) to whom it is directed, including assets legitimately acquired and even including assets outside the UK.

The key legislation in relation to England & Wales is sections 40 – 47 PoCA 2002.


When can a restraint order be made?

A restraint order can be made at any time after a criminal investigation has commenced into suspected criminal conduct from which an individual or company is suspected to have benefited.  It is not necessary for the investigation to have progressed as far as the arrest of anybody, nor is it necessary that anybody has been charged with an offence.

But the applicant for the restraint order must show that he has reasonable grounds to suspect that a benefit has been obtained from criminal conduct, s40.  Ordinarily a restraint order should be made only if there is genuinely a risk that assets will be dissipated (for example being spent, hidden, given away or removed from the country) in the absence of such an order, see s69 and R v B [2008] EWCA Crim 1374.


How is a restraint order made?

A restraint order is normally made by a Crown Court judge on an application by the police / Crown Prosecution Office or other authority.  Before making the restraint order the judge will be provided with a witness statement (often supported by other documentary evidence) from the applicant for the order.  However the subject(s) of the order will NOT have an opportunity to challenge the making of the order at this stage and will NOT be informed of the application until after the restraint order has been made.

As a result the subject(s) of the restraint order will normally be unaware of the application until he / she / they are served with a copy of the restraint order – by which time it will already be in force.


Who can be the subject of a restraint order?

An individual or company may be the subject of a restraint order if he / she / it is an alleged offender who is suspected to have benefited from an offence or is a person who (though not an alleged offender) has received assets from an alleged offender (by way of what is known as a ‘tainted gift’).

It follows that a restraint order may be drawn up to name as its subjects not only the alleged offender but also, for example, his spouse.


What is the effect of the restraint order?

The restraint order will prevent the assets of the subject(s) being dissipated by preventing the sale or transfer of those assets and by ‘freezing’ the subject’s bank accounts.  Technically the restraint order prohibits each subject from “dealing with” his assets. The restraint order will typically list known bank accounts and assets of the subject and will contain clauses designed to ensure that the order relates to those assets and accounts and to any other assets and accounts which are not shown on the list.

There is normally a provision in the restraint order allowing the subject to draw and spend a sum of money, typically £250 per week, to meet day to day living expenses.

The applicant who obtained the restraint order will normally serve copies of it on the subject(s) of the order and send copies of it to banks, etc at which the subject(s) are believed to have accounts and to, for example, the Land Registry in relation to land and buildings owned by the subject(s).


Can a restraint order be challenged?

Yes.  The subject of a restraint order can apply to have the order discharged (cancelled) or amended.  The application will be heard by a Crown Court judge who will hear submissions both from the applicant for the original order and the subject(s) of that order.

Typically a subject of a restraint order will apply to have the terms of the order relaxed, for example to allow a higher level of living expenses or to allow monies to be used to pay specific expenses (such as mortgage payments) or to remove one or more of the subjects from the scope of the order.

In some circumstances it may be appropriate for a subject to apply to the court to have the order limited so as to cover only specified assets.

The decision of the Crown Court judge can be the subject of an appeal to the Court of Appeal and beyond.

Where the restraint order impacts upon a legitimate business it may be necessary to make careful arrangements in the order to allow the business to continue in operation – to pay employees’ wages and business expenditures, for example.  One option in such a situation is for the court to appoint a management receiver (such as an independent accountant or insolvency practitioner) to operate the business whilst protecting the business assets from dissipation. However this may prove expensive and the management receiver’s fees are normally met out of the assets which he is managing, so in effect the subject pays his fees.


What is the purpose of a restraint order?

Ultimately the purpose of a restraint order is to preserve the assets of the subject(s) so that they remain available to meet any confiscation order which the Crown Court may make after the alleged offender has been charged, tried and convicted of an offence, s69.



What else might a restraint order require?

Commonly a restraint order includes clauses requiring the subject(s) of the order to disclose further information to the authorities concerning their assets, s41(7).  This information may then be used to assist in ensuring the effectiveness of the restraint in preventing the dissipation of assets and to assist the prosecution in confiscation proceedings following the conviction of the alleged offender(s).  However the information cannot be used by the prosecution in the course of the alleged offender’s criminal trial.

A restraint order may also contain a requirement to return to the UK assets held overseas (such as monies in an overseas bank account).


What about paying the alleged offender’s legal fees?

Restrained assets cannot be used to meet any legal fees of the alleged offender in connection with his defence against any criminal charges arising from the investigation which formed the basis of the application for the restraint order, see s41(4) PoCA 2002.  This means that the alleged offender will have to rely on legal aid (or gifts from friends) to meet his defence costs.


What about payments made to lawyers before the restraint order was made?

Where a solicitor holds funds in his client account which he has received from a person who has since become subject to a restraint order then the balance standing to the credit of the client is an asset of the subject which (like his other assets) is ‘frozen’ by the restraint order.

It is permissible for the solicitor to bill work done by him up to the date of the restraint order and pay himself for that work by transfer from the client account.  But similar transfers cannot be made in respect of any subsequent legal work, see Irwin Mitchell v RCPO & Allad [2008] EWCA Crim 1741 at paragraph [40].


What is the effect of breaching the restraint order?

A person who breaches a restraint order may be held to be in contempt of court (this is a ‘civil’ contempt, see R v O’Brien [2014] UKSC 23, which can nevertheless result in imprisonment) or may be subject to prosecution for attempting to pervert the course of justice, see Kenny v R [2013] EWCA Crim 1 at paragraph [41].


When does the restraint come to an end?

A restraint order will continue in force until it is lifted by the Crown Court.  This could be on an application by the subject of the order, or where proceedings are not brought within a reasonable time as a consequence of a criminal investigation which has not resulted in anyone being charged, or on the acquittal of the alleged offender, or on the satisfaction of any confiscation order made by the Crown Court following the alleged offender’s conviction.

Even after a confiscation order has been satisfied or discharged a restraint order may continue in force & restrained assets may then be used to satisfy any outstanding legal aid contribution related to the criminal proceedings.



Anyone finding himself subject to a restraint order under PoCA 2002 should seek appropriate legal advice without delay.



[This article has been updated to reflect legal changes made with effect from 1 June 2015.]

(Note: This article applies to restraint orders under the provisions of Part 2 of the Proceeds of Crime Act 2002 in England and Wales. There are a number of additional issues which could be relevant to a subject’s restraint order in particular cases which it is not possible to deal with in a relatively short article such as this. Appropriate professional advice should be sought in each individual case.)

19 thoughts on “Restraint orders under PoCA 2002”

  1. Very clear useful information. The question that then arises is? once the terms of a restraint order have been met (i.e. the CPS has taken back the proceeds of crime from a bank account or business) can it indefinitely maintain the restraint order against the legal proceeds of a bank account or business in perpetuity?

    1. The purpose of the restraint order is to assist the authorities to ensure that the confiscation order is fully paid.

      Once the confiscation order has been paid in full (or cancelled by the court) an application should be made to the court for the restraint order to be discharged (i.e. cancelled).

      The court will not refuse to discharge a restraint order once the confiscation order has been fully satisfied (or cancelled) & any outstanding legal aid contributions have been paid.


  2. Dear David Winch,
    i have just come across your website,very good, I have one question only if you can help me:
    Q does having a pending appeal prevent a restraint order being put on property or assets?? or should the court wait until the appeal is finished before applying a restraint order??
    Thanks for your time,

  3. Hi, brilliant website. My friend is a few months into a 7 year sentence, he recently became aware of a restraint order regarding 3 of his commercial properties,(poca 2002).
    One of these has a charge against it from a local business man in relation to a £200,000 loan, which, due to my friends position, has fallen into arrears. The building is council owned and is held on a 999year lease(7years old).
    The gentleman that is owed the money is attempting to gain possession of the building with a view to selling it to regain his investment.
    The question is, is it possible for him to do this legally or otherwise while the restraint order is in place?
    Thankyou in advance, Andy.

    1. Your friend should seek legal advice from his solicitor. It may be possible to have the restraint order varied so that (if he has enough money in a bank account etc) your friend can pay off the arrears on the loan & then keep the loan repayments up to date.

      Ultimately if the loan is bona fide, is secured on the property & was in place before the restraint order then the lender may well be able to force the sale of the property to pay back what is owed to him. Any excess money left after that will be subject to the restraint order.

      I would expect the lender to be aware of the restraint order & to contact the CPS to make arrangements about the sale of the property.

      I am presuming that when your friend was sentenced he was told that there would be confiscation proceedings but they have not yet concluded.


  4. I had my bank account frozen by the police in April 2014.after almost 2 years have not been charged with any offence,meanwhile my account remains frozen! help.

    1. Michael
      You need to get legal advice from a solicitor experienced in Proceeds Of Crime Act work. I am an accountant.
      A solicitor will tell you that you can apply to the Crown Court to have the restraint order “discharged” (which means cancelled) or varied.
      The purpose of a restraint order is to ‘freeze’ assets which may later need to be realised (sold) to enable you to satisfy (pay) any confiscation order made against you. A confiscation order may be made against you after you have been convicted of a criminal offence from which you have obtained a benefit (in terms of money, or some other form of asset, or the avoidance of a liability – such as a tax liability).
      As you say you have not been charged with any offence yet (and may never be). If you know what sort of offence you may be suspected of & how much may be involved it is possible that – even if the Crown Court will not agree to discharge the restraint order – they may vary it so that it becomes much less burdensome for you. For example if you have properties and bank accounts it is possible the court might vary the restraint order so that it applies to the properties but not the bank accounts. But this very much depends upon the facts of your particular situation.
      See a solicitor.

  5. What happens if the assets subjected to the restraint order are accidentally released? I.e. Sold and a legally enforceable debt repaid?

  6. My proceeds of crime restraint order has been discharged. Can I get my assets money etc back and how do I go about it?

    1. Robert
      If you have a solicitor acting for you, contact him / her. They should advise you.
      There should be a formal Crown Court order discharging the restraint order. The police or other authority may already have obtained this & sent copies to whoever they sent the original restraint order to – or you may need to get your solicitor to do that or do it yourself.

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