Restraint and Management Receivers: Proceeds Of Crime
- Principle
- Guidance
- Procedure
- Restraint
- What must the prosecutor do?
- Early advice
- Review the content of witness statement
- Prepare written application and draft order
- Hearsay evidence
- Lodge the application, statement in support and draft order at the Crown Court
- Venue for the restraint proceedings
- Serve order and witness statement in support
- Register an interest in any registered land
- Make and/or appear on applications by the defendant or by third parties to vary or discharge the restraint order
- Serve varied order or discharge
- Intervene in third party civil proceedings
- Appeals
- What must the Court do?
- Management Receivers
- What must the prosecutor do?
- Draft Restraint Order
Principle
Restraint
A restraint order has the effect of freezing property anywhere in the world that may be liable to confiscation following the trial and the making of a confiscation order. It may be made both against the defendant or person under investigation, and any other person holding realisable property. The object in each case is to strike a balance at the interlocutory stage between keeping the defendant's assets available to satisfy any confiscation order which may be made in the event of conviction and meeting the defendant's reasonable requirements in the meantime (Re Peters [1998] 3 All ER 46, CA).
Management Receivers
A Management Receiver is an officer of the court appointed on the application of the prosecutor to manage the defendant's assets pending the making of a confiscation order in cases where the defendant's assets are of a nature that require active management and the defendant is either unable to manage the assets (perhaps because he is in custody), or the court is unable to trust the defendant to manage the assets properly.
Guidance
Restraint
The Background
The Court's jurisdiction to make or vary restraint orders is closely analogous to the High Court's jurisdiction to make or vary "freezing injunctions" (formerly Mareva injunctions). The previous legislation allowed the High Court to make a restraint or charging order where proceedings had been instituted or the defendant was to be charged, or an application in respect of further confiscation proceedings had been made or was to be.
The Proceeds of Crime Act 2002 (POCA) made three fundamental changes to this scheme:
- The power of the High Court to make a charging order is abolished
- The venue for restraint orders is changed from the High Court to the Crown Court whenever all of the offences were begun after 24 March 2003. Restraint applications will usually still be made to the High Court when it is likely that the confiscation order will be made pursuant to the pre-POCA legislation; and
- The point at which a POCA restraint order may be made is brought forward in the Act to any time after an investigation has been started (previously, although a restraint order could be made at the investigative stage, it was only possible to do so where charges were anticipated).
When should an Application for a Restraint Order be made?
The decision whether or not to apply for a restraint order and if so, the timing of that application are important strategic decisions in the case and should only be taken after careful consideration of the effect on the case both at the investigative or prosecution stage.
An application for a restraint order in respect of an offence begun after 24 March 2003 may be made at any time after an investigation has commenced in England and Wales as to whether such an offence has been committed.
Clearly, from the time that a suspect has been served with the restraint order, he/she will be aware of the criminal investigation and may be in a position to abscond and/or to destroy evidence or otherwise interfere with the course of the investigation. It will necessarily fall upon the investigator to weigh up the pros and cons of an early application.
A prosecutor should provide the investigator with early advice as to whether in law there is sufficient basis for an application for a restraint order to be made and if there is insufficient evidence, what extra material is required.
Generally, it will be in the public interest to make an application, where the investigation is not likely to be compromised to a significant extent; where there are reasonable grounds to suspect that the defendant has benefited from criminal conduct; and there is a real (rather than fanciful) prospect that not insubstantial realisable assets will be dissipated, unless a restraint order is granted.
Clearly not every case will require a restraint order. If the hurdle is placed too high, then the purpose of POCA to deprive criminals of the benefit of criminal conduct will be frustrated, whilst to place the hurdle too low would inevitably lead to the law being brought into disrepute. By making local Crown Courts responsible for this jurisdiction, Parliament clearly intended that restraint orders should be more widely used than under the previous legislation.
At the pre-conviction stage, defendants are entitled to request the release of reasonable sums to meet general living expenses. It will not generally be appropriate to apply for restraint order where the value of a defendant's assets are such that they will all be used to pay living expenses in the period prior to the conclusion of the criminal proceedings.
The Preconditions
A restraint order is made on the application of the prosecutor or an accredited financial advisor at the discretion of the court. An accredited financial investigator is a person accredited by the National Policing Improvement Agency (NPIA) to exercise Part 2 powers and will usually be an employee of the police force financial units (FIUs) or of Customs and Excise.
An application by an accredited financial investigator must be authorised by:
- a police officer not below the rank of Superintendent
- an officer of HM Revenue and Customs of similar rank; or
- an accredited financial investigator designated by the Secretary of State.
In most cases the application will be made by the CPS
The judge may only grant a restraint order pursuant to section 41 POCA if any of the five conditions set out in section 40 is satisfied.
The first condition
A restraint order can be obtained if a criminal investigation has been started in England and Wales with regard to an offence and there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct.
Section 88 (2) POCA defines criminal investigation as being an investigation, which police officers or other persons have a duty to conduct with a view to it being ascertained whether a person should be charged with an offence.
Criminal conduct is conduct that either constitutes an offence in England and Wales or would constitute such an offence if it occurred in England and Wales. An alleged offender will be taken to have benefited from his criminal conduct if he obtains property as a result of or in connection with the conduct.
Important note: Particular care should be exercised in deciding whether to apply for restraint orders at the investigation stage given the concerns expressed by the Court of Appeal in Windsor v CPS [2011] EWCA Crim 143. The case highlights the need for the prosecutor to provide sufficient evidence on an ex parte application for restraint and/or receivership so as to enable the Court to come to its own conclusion that there is reasonable cause to believe that a suspect has benefited from criminal conduct. Suspicion will not suffice.
Costs generally follow the event in restraint and receivership proceedings and prosecutors should only proceed with the application, if they are satisfied that they have been made aware of all relevant information and that the statement in support of the application properly reflects all of the available evidence both for and against the prosecution case.
Applications for production and restraint orders should generally be made to the same judge and court and the prosecutor should ask to see the evidence used in support of the production order. Prosecutors should ensure that the application for restraint, statement in support and draft orders are lodged with the court in good time, so as to ensure that the court can properly consider the papers before the ex parte application. Prosecutors should consider whether the complexity of the case requires that the application be made in person, rather than on the papers and a realistic time estimate should be provided to the court. In complex cases, the court should ensure that a High Court judge or suitably experienced Circuit judge is allocated to the case. Authorisation from the relevant Unit Head must be sought before applications for restraint orders are made at the pre-charge stage.
Section 42 (7) provides that restraint orders obtained because the first condition has been satisfied must be discharged if proceedings for an offence are not brought within a reasonable time. What amounts to "a reasonable time" will depend on the circumstances of individual cases, but it is particularly important that criminal investigations proceed with all due expedition when a restraint order is in force.
The second condition
An application for a restraint order may also be made once proceedings for an offence have been started in England and Wales and not concluded, and if there is reasonable cause to believe that the defendant has benefited from his/her criminal conduct.
Proceedings do not conclude within the meaning of the Act until such time as any confiscation order made in the proceedings has been fully paid: see Section 85 (5) (a) of POCA. Prosecutors should not agree to the discharge of a restraint order until such time as the order has been satisfied. Accordingly it is not best practice to agree to discharge the restraint order following the making of a confiscation order on the basis that discharge is required to enable the defendant to sell property to pay the confiscation order. The proper way to manage such a situation is to agree to vary the order to permit sale of any particualr asset. Discharging the order leaves the prosecutor with no control to ensure satisfaction of the confiscation order which was the reason to obtain it originally.
Proceedings are started once a warrant or summons in respect of the offence is issued by a justice of the peace under Section 1 of the Magistrates' Court Act 1980, or when a person is charged with the offence after being taken into custody without a warrant, or when a bill of indictment is preferred in accordance with Section 2(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933.The second condition will not be satisfied and the application for a restraint order will be refused if the Court believes that either there has been undue delay in continuing the proceedings, or if the prosecutor does not intend to proceed.
The third condition
A restraint order may be granted if the prosecutor has applied or will apply for the Court to either reconsider making a confiscation order, to reconsider the benefit figure, to make a confiscation order where a defendant absconds after conviction or committal, or to make a confiscation order where a defendant absconded more than two years previously but was neither acquitted nor convicted in commenced criminal proceedings.
The Court must also be satisfied that there is reasonable cause to believe that the defendant has benefited from his/her criminal conduct.
The fourth condition
An application for a restraint order may be made if the prosecutor has commenced or will commence an application for the Court to reconsider the benefit figure in an earlier confiscation order, and if there is reasonable cause to believe that the Court will decide that the amount found under the new benefit calculation of the defendant's benefit exceeds the relevant amount.
The fifth condition
A restraint order may be granted if the prosecutor has applied or will apply for the Court to reconsider the amount available to satisfy a confiscation order, and if there is reasonable cause to believe that the Court will decide that the amount found under the new calculation of the available amount exceeds the relevant amount.
The third, fourth and fifth conditions will not be satisfied if the Court believes that either there has been undue delay in continuing the application, or the prosecutor does not intend to proceed (see section 40 (7)(8)).
The term "reasonable cause to believe" is not defined in the legislation or relevant case law. It clearly connotes something more than suspicion and the belief must be rational and based on adequate supporting material. It does not require the prosecutor to adduce as much evidence as would be required for a jury to convict. A High Court Judge has suggested that it is a belief based on a reasonable evidential source.
All cases: Establishing a risk that assets may be dissipated
In all cases, regardless of which condition is being relied on, the prosecutor must be able to show there is a real rather than fanciful risk that assets will be dissipated if a restraint order is not made. In many cases, particularly those involving charges of dishonesty,the risk of dissipation will speak for itself and will not prove problematic: see Jennings v CPS [2005] 4 All ER 391 However, prosecutors must be alive to the necessity to establish that such a risk exists. This is especially so in cases where there has been a delay in applying for the restraint order and there is no evidence to show the defendant has dissipated assets in the meantime.
As the Court of Appeal held in Re B [2008] EWCA 1374 in such a case it is incumbent both on the prosecutor and the judge to explain how it can be said there is a real risk of dissipation in the future when the defendant has not dissipated assets in the past when he has had every opportunity to do so.
The extent of a restraint order
The amount of realisable property that can be restrained will depend upon the amount in which the confiscation order is likely to be made. The Court will permit the prosecutor a degree of latitude in the assessment of the amount of benefit where enquiries into its extent have not yet been completed.
A defendant will be restrained from dealing with all of his assets ("general restraint") if the prosecutor is going to ask the Court to decide whether the defendant has a criminal lifestyle and has benefited from general criminal conduct.
If the prosecutor is not alleging that the defendant has a criminal lifestyle and the Court is going to be asked to decide whether the defendant has benefited from his particular criminal conduct, a defendant will be restrained from dealing with specific assets which together total in value the amount of his benefit from particular criminal conduct ("specific restraint").
Where the amount the defendant has benefited from particular criminal conduct exceeds the value of all his assets it will be appropriate to restrain the defendant from dealing with all of his assets.
Any person who holds assets jointly with the defendant may be specifically restrained from dealing with those jointly held assets. The recipient of a tainted gift may be restrained from dealing with any realisable property they hold up to the current value of the gift.
Realisable property
Realisable property is defined in section 83 as any free property held by the defendant and any free property held by the recipient of a tainted gift.
The term "property" is defined in section 84 and covers all property wherever situated and includes money, real or personal property, a thing in action, or other intangible or incorporeal property.
A person holds property if he holds an interest in it. A person obtains property if he obtains an interest in it, and one person transfers property to another, if the first one transfers or grants an interest in it to the second. References to an interest, in relation to property other than land, include references to a right (including a right to possession).
If the defendant or the recipient of a tainted gift has any interest in the property, the whole of the property is realisable property and may be restrained.
Free property
Property is free property (see section 82) unless it is the subject of:
- a forfeiture order either under the Misuse of Drugs Act 1971 or the Terrorism Act 2000,
- a deprivation order under the Powers of Criminal Courts (Sentencing) Act 2000.
- an interim receiving order, a recovery order or an order for the detention or forfeiture of seized cash under the civil recovery provisions of the Proceeds of Crime Act 2002.
Companies
Companies enjoy their own legal personality separate and distinct from the defendant. In normal circumstances, therefore, they do not constitute realisable property of the defendant. However, a long line of authorities have established that where a defendant is in control of a company and it has been used to facilitate the criminal conduct complained of, the court may pierce the corporate veil of the company and treat it as the realisable property of the defendant: see Re H (Restraint Order: Realisable Property) [1996] 2 All ER 391.
The Court will not, however, permit the restraint order to operate at the pre-conviction stage is such a way as to preclude the company engaging in legitimate trading activity. The restraint order will need to make provision for company assets to be released to facilitate such activity. In cases of particular complexity, an application for the appointment of a management receiver may be necessary.
In all cases where an application to pierce the corporate veil of a company is contemplated, advice from the Proceeds of Crime Unit within Organised Crime Division (OCD.POCU@cps.gsi.gov.uk) should be sought.
Tainted gift
A gift is made if the defendant transfers property to another person for a consideration whose value is significantly less than the value of the property at the time of the transfer.
A gift will be tainted (see section 77) if the defendant made it at any time after the date on which the offence concerned was committed, or the earliest date if two or more offences are alleged to have been committed.
Where the Crown Court has decided that the defendant has a criminal lifestyle, any gift made by the defendant to any person in the period beginning six years before the commencement of proceedings is caught together with any gift made at any time if the property gifted was obtained by the defendant as a result of or in connection with his general criminal conduct or represents property obtained by him as a result of or in connection with his general criminal conduct.
Although a court can apply the wider definition of tainted gifts at the restraint stage, if it is clear at that time that the defendant does not have a criminal lifestyle and that therefore the narrower definition will apply at the confiscation hearing, the court will have to take this into account when making the restraint order.
If the court decides that the defendant has a criminal lifestyle the definition of a tainted gift is even wider as a gift will also be tainted if:
- it was obtained by the defendant as a result of or in connection with his general criminal conduct, or
- it represents property obtained by him as a result of or in connection with his general criminal conduct.
Management Receivers
When may the Court appoint a management receiver?
Section 48(2) POCA gives the Crown Court discretion to appoint a management receiver in respect of any realisable property to which a POCA restraint order applies.
Managing may include selling the property or any part of it or interest in it, carrying on or arranging for another to carry on any trade or business the assets of which are part of the property and incurring capital expenditure in respect of the property. The court may confer on the receiver such powers set out in section 49 as are appropriate to the case.
When should consideration be given to the appointment of a receiver?
A management receiver should be considered where the defendant's assets are of such a nature that they require active management. It may be that the defendant is in custody and can't manage the assets himself or that the circumstances of the case suggest that the Court cannot trust him to manage the assets.
An obvious example where the appointment of a management receiver would be appropriate is when a defendant's asset includes a business that needs to be operated in order to preserve its value e.g. a defendant is arrested for money laundering, he trades as an ice-cream maker, he is remanded in custody and his stock, business and livelihood is at risk of dissipation. The appointment of a management receiver would protect the defendants' assets and manage them pending the resolution of the criminal case against him.
Other examples are where management receivers have been appointed to operate haulage businesses, factories and bureau de change. They may deal with letting houses, or finishing a partially completed development and securing property.
A third party may be forced to give possession of the defendant's "realisable property" to the Receiver but must first be given a reasonable opportunity to make representations to the court.
Exceptions
The costs incurred by a defendant in mounting his defence to the criminal proceedings that he faces may not be met from the receivership property: see section 41 (4) & (5) of POCA. The prohibition extends to legal costs incurred in defending the restraint proceedings (see Customs and Excise Commissioners v S [2005] 1 WLR 1338) and to any related judicial review proceedings: (see AP & U Limited v Crown Prosecution Service and Revenue and Customs Prosecutions Office [2007} EWCA Crim 3128)
Ancillary Orders
Section 41 (7) of POCA gives the Crown Court jurisdiction to make any such ancillary order as it believes appropriate for the purpose of ensuring the restraint order is effective.
The two orders most commonly made under Section 41 (7) are disclosure orders and repatriation orders.
Disclosure orders
A disclosure order requires the defendant to disclose to the prosecutor in a witness statement ,verified by a statement of truth, the nature, extent and location of all his realisable property. This information is essential if the prosecutor is to discharge his duty to police the order effectively and such orders should be sought in every case except where the prosecutor has already identified sufficient assets to meet any confiscation order that may be or has been made in the defendant's case.
A disclosure order may be made against a third party holding the defendant's realisable property: see Re D (Restraint Order: Non Party) The Times, 26 January, 1995.
Important note on the use of disclosure statements
In order to protect the defendant's privilege against self-incrimination, disclosure orders are made subject to a strict condition that the statements may not be relied on in the criminal proceedings. It is of vital importance that this rule is adhered to at all times. In cases of difficulty, advice from the Proceeds of Crime Unit should be sought.
Once a defendant has been convicted, the disclosure statement may be relied on in the confiscation proceedings. Indeed, good practice dictates that such statements should normally be exhibited to the prosecutor's statement of information made under section 16 of POCA.
Repatriation orders
Repatriation orders are orders requiring a defendant to repatriate to England and Wales assets held overseas. They are most commonly used in relation to funds held in overseas bank accounts which are vulnerable to dissipation before a letter of request can be issued and actioned to secure them.
A repatriation order should only be sought where the realisation of assets held overseas will be necessary to satisfy a confiscation order in the amount of the defendant's benefit. If there are sufficient UK based assets available, a repatriation order should not be sought. For more details on the Court's power to make a repatriation order, see DPP v Scarlett [2000] 1 WLR 515.
Receiver's costs
The costs of the management receiver are paid from the assets that he is managing (see section 49 (1)(d)), even where the defendant is ultimately acquitted. The CPS no longer agrees to indemnify receivers as to their costs in the event that there are insufficient assets in the receivership estate to pay their remuneration, costs and expenses.
Nonetheless, the potential consequences of the appointment of a management receiver are such that prosecutors should always seek their line manager's approval, before any application is made to the Court to appoint a management receiver from the CPS approved panel.
Procedure
Restraint
The Service Level Agreement (SLA) between ACPO and the CPS and the Local Protocol set out the respective roles of the police and the CPS.
Clause 3 of the SLA states that wherever there is the prospect of a restraint order, the police should ensure that advice is sought and obtained so that an application for a restraint order can be prepared as expeditiously as possible.
Once the police have requested advice, the CPS will provide that advice within an agreed timescale and will thereafter take forward any application for a restraint order by drafting the order, lodging it with the court, making the application and dealing with other ancillary matters, such as variation, contempt, or discharge applications.
The police will provide such assistance to the CPS as is requested within an agreed timescale. This will include such matters as preparing the supporting witness statement, personally serving any order on any restrained party, monitoring the effect of the order, and attendance at court to assist in the proceedings if required by the CPS.
If any information or evidence is needed to progress an application linked to a restraint or confiscation order, such as an application to the court for an order under the Contempt of Court Act 1981, the police will provide this within the timescale agreed with the CPS.
What must the prosecutor do?
Early advice
The prosecutor's first task will be to provide advice to the police in cases where restraint is being considered. Time is of the essence in such cases, if assets are not to be dissipated and it is imperative that advice is given urgently.
Review the content of witness statement
Once the decision has been made to apply for a restraint order, the CPS Prosecutor will prepare the written application for submission to the Crown Court. The Crown Court Rules require that a witness statement, which will have been prepared by the police financial investigator, should support the application. The lawyer should ensure that the statement sets out all relevant information consistent with the prosecutor's duty of full and frank disclosure.
In Stanford International Bank v Serious Fraud Office [2010] EWCA Civ 137 Hughes LJ emphasised the importance of complying with the duty of full and frank disclosure. The fact that applications for restraint orders are often put in the busy list of a Crown Court judge, with little time available to deal with it, made it essential for the duty of full and frank disclosure to be taken very seriously. He said that the duty required the prosecutor to put on his defence hat and ask himself what, if he were representing the defendant or an affected third party, he would be saying to the judge and, having answered that question, ensure that those matters are included in the witness statement.
A failure to comply with this duty may lead to an order being subsequently discharged and costs being awarded against the CPS.
Rule 59.1 (3) of the Criminal Procedure Rules 2010 ("CPR") provides that the witness statement must:
a. give the grounds for the application;
b. to the best of the witness's ability, give full details of the realisable property in respect of which the applicant is seeking the order and specify the person holding that realisable property;
c. give the grounds for, and full details of, any application for an ancillary order under section 41(7) of the Act for the purposes of ensuring that the restraint order is effective; and
d. where the application is made by an accredited financial investigator, include a statement that he has been authorised to make the application under section 68 of the Act.
The financial investigator should use a standard statement including the following information:
- the names of all the defendants and third parties against whom restraint orders are sought; and
- under which condition in section 40 the application is being made
- If the condition is the first condition,
- state that a criminal investigation has started
- provide full details of the investigation, including the date on which it commenced, the stage it has now reached, what lines of enquiry remain to be pursued and when it is anticipated a decision will be made as to whether charges will be preferred
- the grounds for believing that there is reasonable cause to believe that the defendant has benefited from his criminal conduct
- If the condition is the second condition, that criminal proceedings have started and not concluded:
- summarise both the offences charged and the evidence to support the offences charged; and
- verify that the prosecutor is to have conduct of the prosecution; and
- specify that the proceedings have not been concluded.
- the grounds for believing that there is reasonable cause to believe that the defendant has benefited from his criminal conduct
- If the condition is the third condition, that no order was made an application has been or will be made to reconsider the case or benefit, or defendant absconds:
- specify the grounds and stage of the application
- the grounds for believing that there is reasonable cause to believe that the defendant has benefited from his criminal conduct
- If the condition is the fourth condition, that an application to reconsider benefit has been or will be made:
- specify the grounds and stage of the application
- and that there is reasonable grounds to believe that the court will decide that there is more benefit
- and that there is reasonable grounds to believe that the court will decide that the new amount of benefit calculated will exceed the amount previously found to be the defendant's benefit.
- If the condition is the fifth condition, that an application to reconsider the available amount has been or will be made
- specify the grounds and stage of the application
- and that there is reasonable grounds to believe that the court will decide that the new available amount calculated exceeds the relevant amount (the amount found to be the available amount at a previous confiscation hearing).
- In all cases the personal circumstances of each defendant against whom a restraint order is sought;
- A description of the assets of each defendant over which a restraint order is sought and the amount of the benefit, if appropriate;
- The amount of the benefit should be estimated and be stated in the witness statement. There is a degree of latitude in the assessment of the amount of the benefit. FIO's can state that the exact amount of the benefit is not known where the investigation is at a very early stage;
- Whether civil proceedings have been instituted and, if so, the nature of those proceedings. The existence of civil proceedings will affect
- whether the Crown Court has a duty rather than a power to make a confiscation order against the defendant; and,
- where the Crown Court has a power to make a confiscation order, whether the Crown Court exercises its power to make such an order against the defendant.
Where the the restraint of company or business assets is sought, the witness statement should set out all the facts relied on in support of the contention that the company should be restrained together with full details of the corporate structure, including the date on which the company was incorporated, the share capital, the names of the company's officers and shareholders and, when known the approximate annual turnover of the company.
In all cases the witness statement must set out why it is believed there is a real as opposed to fanciful risk that assets will be dissipated if the order is not made. This issue needs to be addressed with particular care in cases where some time has elapsed since charged were preferred, or the defendant became aware that he is subject to investigation, and the date on which the application for a restraint order is made.
Unless the Crown Court otherwise orders, the statement can include hearsay statements, provided that the sources of the information and grounds for belief are included.
Prepare written application and draft order
Draft applications and draft orders are set out below and should be amended by the prosecutor to suit the particular circumstances of the case.
The prosecutor should ensure that draft order follows the standard template and that it includes the following:
all the necessary restrictions upon the diminution of the value of the realisable property;the notice at the beginning of the Order is not only addressed to the defendant or alleged offender but also to all those identified parties who are to be restrained by the order; and
the exceptions to be made to the order in particular whether the spouse or co-habitee of the defendant or alleged offender should be given sufficient monies to pay for weekly living expenses and separate legal advice and representation (see section 41(3) and (4));
any ancillary relief pursuant to section 41(7) for the purpose of ensuring that the restraint order is effective (e.g. requiring the defendant to disclose the existence and whereabouts of his assets and transfers; requiring the repatriation of assets held outside the jurisdiction back to within the jurisdiction; or asking that a deteriorating asset be sold and the money paid into an interest bearing account).
Consideration should always be given as to whether there is a need for a management receiver to be appointed at the same time (see the section on the 'appointment of management receivers' below).
Hearsay evidence
Hearsay evidence is admissible in restraint and receivership applications, however Rule 61.8 of the CPR provides that no notice need be served identifying the hearsay statements and of the intention to rely upon hearsay evidence in inter partes hearings. Section 2(1) of the Civil Evidence Act 1995 does not apply to restraint and receivership applications.
Lodge the application, statement in support and draft order at the Crown Court
The application is usually made ex parte without notice and will be decided upon the documents lodged by the prosecution at the Crown Court.
Although Rule 61.3 of the Criminal Procedure Rules allows restraint orders to be made administratively without a hearing, prosecutors should always consider whether the circumstances of individual cases are such that a hearing should be sought to explain the matter more fully to the judge. Prosecutors should normally ask for a hearing where the case involves any of the following features-
- The application for a restraint order is coupled with an application for the appointment of a management receiver;
- The application is being made at the investigation stage before any charges have been preferred against the defendants;
- The application includes a request to lift the corporate veil of a company;
- The order sought will restrain the assets of any other trading entity owned or under the control of the defendant;
- The case has any unusual or complex aspects that require detailed explanation to the judge
Where a hearing is required, the prosecutor should ensure the Court is given a realistic time estimate and that the papers are sent to the Court in sufficient time to allow the judge to give them detailed consideration in advance of the hearing: see Windsor v CPS [2011] EWCA Crim 143
The prosecutor should take a full note of the hearing and serve the same on the defendants along with a copy of the order and supporting evidence: see Director of the Assets Recovery Agency v Singh [2004] EWHC Admin 2335.
Venue for the restraint proceedings
Where applications for search warrants, production orders and other investigative remedies have already been made, the application for a restraint order should be made at the same Crown Court venue: see Windsor v CPS [2011] EWCA Crim 143.
Serve order and witness statement in support
Rule 59.2 (8) of the CPR requires that once the order has been made, that a copy of the order and the statement in support of the application is served on the defendant and on any person who is prohibited from dealing with realisable property by the restraining order. Any other person whom the applicant knows to be affected by the order must be notified of the terms of the order.
Where the restraint order has been obtained in respect of monies held in bank accounts, the relevant banks should be notified of the terms of the order. Similarly, where shares have been restrained, the Registrar holding the register of shares should be informed.
Clearly, it will be a necessary step in any contempt proceedings to prove that these documents were properly served.
Rule 57.14 provides that the applicant for the restraint order must file at the Crown Court a certificate of service within seven days of the order being served setting out the date and method of service.
Register an interest in any registered land
A restriction should be registered at the Land Registry to protect the state's claim to an interest in any registered land. The address of the Land Registry may be found at the land registry website www.landreg.gov.uk
Make and/or appear on applications by the defendant or by third parties to vary or discharge the restraint order
An ex parte restraint order has effect until further order of the court unless the court otherwise directs under Rule 59.2 (7) of the CPR. Section 43(2) POCA permits an application by the person who applied for the order, or by any person affected by the order to discharge or vary a restraint order or an order under section 41(7) (an ancillary order made to ensure that the restraint order is effective).
Rule 59.4 (3) requires that the applications for a variation are made in writing and must be supported by a statement setting out the grounds for the application and where the application is for the inclusion of further realisable property in the order, to the best of the witness's ability, give full details of the realisable property in respect of which the applicant is seeking the order and specify the person holding that realisable property.
In the case of a variation, Rule 59.4 (2) of the CPR provides that the application can be made ex parte without notice if there are reasonable grounds for believing that giving notice would cause the dissipation of realisable property, which is the subject of the application. Otherwise, the application and witness statement must be lodged with the Crown Court and served on the defendant at least two days before the date fixed by the court for hearing the application in accordance with Rule 59.4 (5) of the CPR, unless the Crown Court specifies a shorter period.
An application by the prosecutor to discharge the restraint order may be made without notice. The application must be in writing setting out the grounds for the discharge. The Court can determine the matter without a hearing: see Rule 59.5 of the CPR.
Where an application to vary or discharge the restraint order is made by the defendant or affected third party, the application and documentation should be sent immediately to the financial investigator for his comments. The prosecutor should then make a decision, in consultation with the investigator, as to whether the application is to be opposed and, if so, prepare and serve any necessary evidence. If the hearing has been listed at short notice it may be necessary to seek a short adjournment for this purpose.
If the application is not contentious (e.g. a request for a modest increase in the amount payable by way of general living expenses) the court and the parties should be notified immediately so the necessity for a court hearing can be avoided.
Third parties may ask the Crown Court to determine their rights in respect of restrained assets. Please refer to the chapter on enforcement under the heading "Resolution of third party interests".
Serve varied order or discharge
If the court makes an order for the variation or discharge of a restraint order, then the applicant must serve copies of the order and of the witness statement made in support of the application (in the case of a variation application) on:
a. the defendant;
b. any recipient of a tainted gift whose property the order restrains; and
c. any other person whom the applicant knows to be affected by the order.
A certificate of service must be completed and lodged with the Court in accordance with Rule 57.14 of the CPR.
Intervene in third party civil proceedings
The prosecutor may need to apply to become a party to matrimonial or other civil proceedings, in which the rights to restrained assets are in issue. Section 58(5)(6) provides that if a court in which proceedings are pending in respect of any property is satisfied that a restraint order has been applied for or made in respect of the property the court may either stay the proceedings or allow them to continue on any terms it thinks fit. Arguably, the civil court will be bound by the principles set out in section 69 POCA.
In appropriate cases, the prosecutor must intervene to protect the Crown's position. In cases of difficulty the Proceeds of Crime Unit should be consulted.
Appeals
The appeal procedure may be found in a combination of POCA, the Criminal Procedure Rules 2010 and in the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 (SI 2003 No. 82). There are resource and other implications for the CPS if unworthy appeals are pursued and prosecutors should refer likely cases to a level E or head of unit for decision. The Head of the Proceeds of Crime Unit should also be consulted.
The prosecutor may appeal in the following circumstances:
- Section 43(1) to the Court of Appeal where the Crown Court has refused to make an order;
- Section 43(2) (a) to the Court of Appeal where the Crown Court has made an order; and
- Section 44 (2) to the Supreme Court of the decision of the Court of Appeal.
In addition, the defendant, or any person affected by the making of an order may apply to the Crown Court to discharge or vary the original order and may then appeal to the Court of Appeal in respect of the refusal of the Crown Court to vary or discharge the order.
A notice of appeal must be served on all parties within fourteen days and leave to appeal must be obtained from the Court of Appeal or from the House of Lords.
Appeals to the Court of Appeal regarding restraint will be limited to a review of the decision of the Crown Court unless the Court of Appeal considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
The Court of Appeal will allow an appeal where the decision of the Crown Court was wrong, or unjust because of a serious procedural, or other irregularity in the proceedings in the Crown Court.
Any party to an appeal before the Court of Appeal may appeal with leave to the Supreme Court.
What must the Court do?
Apply the correct burden and standard of proof
The burden rests on the prosecution on a balance of probabilities.
Exercise of powers
Section 69(2) of POCA sets out the principles on which the Crown Court should exercise the discretion to grant a restraint order, namely that the power:
a. must be exercised with a view to the value for the time being of realisable property being made available (by the property's realisation) for satisfying any confiscation order that has been or may be made against the defendant;
b. must be exercised, in a case where a confiscation order has not been made, with a view to securing that there is no diminution in the value of realisable property;
c. must be exercised without taking account of any obligation of the defendant or a recipient of a tainted gift if the obligation conflicts with the object of satisfying any confiscation order that has been or may be made against the defendant;
d. may be exercised in respect of a debt owed by the Crown.
This provision has become known over the years as "the legislative steer" from which it will be seen that, although the judge has a discretion whether or not to grant an application for a restraint order, the exercise of the discretion is far from unfettered.
Section 69 is much stricter than the equivalent sections in the old legislation and, as the Court of Appeal held in Serious Fraud Office v Lexi Holdings PLC (In Administration) [2008] EWCA Crim 1443, "must be taken to represent a deliberate tightening up of the legislation by Parliament." In particular, restrained funds may not be released to enable unsecured third party creditors of the defendant to be paid. The decision to the contrary in Re X [2004] 3 WLR 906 is no longer good law.
Undertakings by the prosecutor
Rule 59.2 (5) of the CPR provides that the Crown Court may require the applicant to give an undertaking to pay the reasonable expenses of any person otherthan a person restrained from dealing with realisable property, which are incurred as a result of the restraint order. The prosecutor cannot, however, be required to give an undertaking in damages: see Rule 59.2 (4) of the CPR.
Cases of unusual complexity
Occasionally cases arise that are of particular complexity, raising issues far removed from those normally dealt with by a Crown Court judge. They may, for example raise difficult issues regarding trusts, company law, insolvency law, property law or family law. In such cases the principles set out in the judgment of Hughes LJ in Stanford International Bank v Serious Fraud Office [2010] EWCA Civ 137 should be followed.
Prosecutors should liaise with the appropriate Courts Administrator with a view to arranging for the hearing to take place before a judge with the necessary expertise. In urgent cases, the judge initially dealing withthe application should make the restraint order , but impose a short return date when the matter can be considered by a judge with appropriate expertise.
Management Receivers
Choice of receiver
A panel of receivers has been appointed to act on behalf of the CPS in all management and enforcement receivership cases
Where an application for the appointment of a management receiver is being considered the procurement team at York must be contacted and they will invite tenders from the panel. Please contact Tracy Rennison - telephone 01904-544463, email tracy.rennison@cps.gsi.gov.uk
Application to court
Rule 60.1 of the CPR provides that the Crown Court may determine the application ex parte without a hearing if the application is coupled with an application for a restraint order, is urgent or there are grounds for believing that giving notice of the application would lead to the dissipation of realisable property which is subject to the application .
Only the prosecutor may apply to the court for the appointment of a management receiver - the defendant has no standing in law to do so: see Re M [1992] 1 All ER 537.
Rule 60.1 (6) requires that, unless the application to appoint the receiver is made ex parte, the application and witness statement must be lodged with the Crown Court and served on:
a. the defendant;
b. the recipients of any tainted gifts; and
c. any other person whom the applicant knows to have an interest in any property to which the application relates,
at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.
The witness statement should give the grounds for the application including:
- an overview of the case and the circumstances giving rise to the need for the appointment of a management receiver;
- full details of the proposed receiver and exhibit the letter of agreement setting out the basis for the receivers remuneration and operation and a consent letter from the receiver that he or she is willing to act in the case and abide by the terms of both the order and letter of agreement; and
- to the best of the witnesss ability, full details of the realisable property in respect of which the applicant is seeking the order and specify the person holding that realisable property: see Rule 60.1 (3) of the CPR.
Compliance with the "Capewell Guidelines"
Further, prosecutors applying for management receivership orders must comply with the "Capewell Guidelines" laid down by the Court of Appeal in Capewell v Customs and Excise Commissioners [2005] 1 All ER 900. In particular-
- "Within the witness statement in support of the application to appoint a management receiver, the prosecutor should set out the reasons the prosecutor seeks the appointment of a receiver, and what purpose the prosecutor believes the receivership will serve.
- The witness statement in support of the application should also give an indication of the type of work that it is envisaged the receiver may need to undertake, based on the facts known to the prosecutor at the time of the appointment.
- The witness statement should specifically draw to the Courts attention the proposition that the assets over which the receiver is appointed will be used to pay the costs, disbursements and other expenses of the receivership (even if the defendant is acquitted or the receivership is subsequently discharged).
- The letter of acceptance of appointment from the receiver, which must be exhibited to the applicant's witness statement, should contain the time charging rates of the staff the receiver anticipates he may need to deploy.
- In appropriate cases, where it is possible, and this will not be in every case, the receiver should give in his letter of acceptance an estimate of how much the receivership is likely to cost.
- The prosecutor's witness statement in support of the application should inform the Court of the nature of the assets and their approximate value (if known) and the income the assets might produce (if known).
- If the prosecutor or receiver is unable to comply with any of the above requirements the prosecutor should explain the reasons for the failure in the prosecutor's application to the court and the matter will be left at the discretion of the court."
A draft receivership order must accompany the witness statement.
Hearsay evidence
Hearsay evidence is admissible in restraint and receivership applications, however Rule 61.8 of the CPR provides that no notice need be served identifying the hearsay statements and of the intention to rely upon hearsay evidence in inter partes hearings. Section 2(1) of the Civil Evidence Act 1995 does not apply to restraint and receivership applications.
Receiver's Powers
The Receiver gets his authority to act from the court. This is set out in the order appointing him (section 49 POCA). It is extremely important that the order appointing a Management Receiver is drafted so as to give the Receiver the powers that he needs to operate to manage the assets.
An ex parte application to appoint a Management Receiver the Court cannot give the Receiver power to manage the assets as in order to grant the Receiver this power an opportunity to be heard must be given to all parties likely to be affected by the Management Receiver Order.
On an ex parte order the Receiver may be given the
- Power to take possession of property;
- Power to start, carry on or defend legal proceedings in respect of the property;
- Power to enter premises in England and Wales:
- To search for or inspect anything authorised by the Court;
- To make or obtain a copy or photograph or other record as authorised by the Court;
- To remove any property as authorised in the receivership order.
After an inter partes hearing he may be given the powers set out above and also the
- Power to realise so much of the property as is necessary to meet the receivers remuneration and expenses;
- Power to realise so much of the property as is necessary to meet the receivers remuneration and expenses.
Costs of management receivers
Management receivers draw their costs, disbursements and other expenses from the receivership estate. The Court has no power to order the prosecutor to pay even if the defendant is acquitted or the receiver is later discharged: see Capewell v HM Revenue and Customs [2007] UKHL 2.
Appeal
Prosecution appeals in respect of management receivership may be made with leave in the following circumstances:
- Section 65 (1) to the Court of Appeal in respect of the refusal of the Crown Court to appoint and/or give powers to a management receiver
- Section 65 (2) (a) to the Court of Appeal in respect of an order made by the Crown Court to appoint and/or to give powers to a management or receiver
- Section 65 (3) to the Court of Appeal where on a further application by the prosecutor, the Crown Court refuses to make an order
- Section 65 (4) to the Court of Appeal where on a further application the Crown Court has made an order; and
- Section 66 to the House of Lords in respect of a decision of the Court of Appeal.
The appeal procedure may be found in a combination of POCA, the Criminal Procedure Rules 2010 and in the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 (SI 2003 No. 82).
Notice of Appeal should be served within fourteen days, although application can be made for an appeal out of time.
Any decision as to whether a prosecution appeal should be lodged, should be taken by the relevant Unit Head after consultation withthe Head of the Proceeds of Crime Unit.
In addition, the defendant and/or any person affected by the appointment or powers given to a management receiver; by the grant of powers to the receiver; by the refusal or the giving of directions; or by a refusal to discharge or vary the order, may appeal with leave to the Court of Appeal. Any party appearing in an appeal before the Court of Appeal may appeal to the Supreme Court.
Draft Restraint Order
DISOBEDIENCE TO THIS ORDER IS A CONTEMPT OF COURT WHICH IF YOU ARE AN INDIVIDUAL IS PUNISHABLE BY IMPRISONMENT OR IF YOU ARE A BODY CORPORATE IS PUNISHABLE BY SEQUESTRATION OF YOUR ASSETS AND BY IMPRISONMENT OF ANY INDIVIDUAL RESPONSIBLE
IN THE CROWN COURT
SITTING AT [NAME]
Before His/Her Honour Judge [ NAME OR LEAVE BLANK FOR NAME] sitting in Private
No.
Dated
IN THE MATTER OF [FULL NAME]
(Defendant)
AND
IN THE MATTER OF THE PROCEEDS OF CRIME ACT 2002
Restraint Order Prohibiting Disposal Of Assets
TO: (1) Mr X (the Defendant)
(2) Mrs X (wife of the Defendant)
(3) [AB LIMITED] (a company controlled by the Defendant)
(4) [NAME OF OTHER RESTRAINED PARTY]
Penal Notice
If you the Defendant, Mrs X, AB LIMITED [or NAME OF RESTRAINED PARTY] disobey this Order you may be held to be in contempt of court and may be imprisoned, fined or have your assets seized.
Any other person who knows of this order and does anything which helps or permits the Defendant, Mrs X, AB LIMITED [or NAME OF RESTRAINED PARTY] to breach the terms of this Order may also be held to be in contempt of court and may be imprisoned, fined or have their assets seized.
IMPORTANT: NOTICE TO THE DEFENDANT, MRS X, AND AB LIMITED [and/or NAME OF RESTRAINED PARTY]
This order prohibits you the Defendant, from dealing with your assets. It prohibits Mrs X from dealing with the assets identified in paragraph [INSERT NO.] of this Order. It prohibits AB LIMITED from dealing with the assets identified in paragraph [INSERT NO.] of this Order. [REPEAT FOR ANY OTHER RESTRAINED PARTY]
The order is subject to the exceptions contained in the order. You should read it all carefully.
You are advised to consult a solicitor as soon as possible. Under paragraph 2 of schedule 2 of the Access to Justice Act 1999, as amended by paragraph 36 of schedule 11 of Proceeds of Crime Act 2002, you may be entitled to Community Legal Service Funding in respect of this Order. Your solicitor will be able to provide you with the appropriate forms. Such applications should be submitted to theLegal Services Commission, Exchange Tower, 2 Harbour Exchange Square, London E14 9GE. In relation to LSC funding (formerly Legal Aid) general enquiries may be directed to the free LSC telephone helpline: 0845 345 4 345.
You have a right to ask this court to vary or discharge this order, see paragraph [INSERT NO.] below. If you wish to do this you must serve on the Crown Prosecution Service and all other affected parties a copy of the application and any witness statement in support at least 2 clear working days before the date fixed for the hearing.
There is an interpretation section at page [INSERT NO.] of this order.
The Order
1. This is a Restraint Order made against Mr X (the Defendant), Mrs X and AB LIMITED [and/or NAME OF RESTRAINED PARTY] on [DATE OR LEAVE BLANK TO INSERT DATE] by His/Her Honour Judge [INSERT NAME OR LEAVE BLANK FOR NAME] on the application of the Crown Prosecution Service (the Prosecutor). The Judge read the witness statements listed in Schedule A and accepted the undertakings set out in Schedule B at the end of this order.
2. This order was made without notice to the Defendant, Mrs X, AB LIMITED, [and/or NAME OF RESTRAINED PARTY]. The Defendant, Mrs X, AB LIMITED, [and/or NAME OF RESTRAINED PARTY] have a right to apply to the court to vary or discharge the order - see paragraph [NUMBER] below.
3. There will be a further hearing of this matter on [INSERT DATE OR LEAVE BLANK FOR DATE] (the return date) when the Prosecutor will apply for the continuation of this order. The Defendant, Mrs X, AB LIMITED, [and/or NAME OF RESTRAINED PARTY] and any other person affected by this order are entitled to appear and to object to the continuation of this order or to ask for it to be varied.
Disposal Of Or Dealing With Assets
4. The Defendant must not:-
(1) remove from England and Wales any of his assets which are in England and Wales [up to the value of £ amount. - NOT NECESSARY TO INSERT VALUE IF BENEFIT WILL EXCEED REALISABLE ASSETS]; or
(2) in any way dispose of, deal with or diminish the value of any of his assets whether they are in or outside England and Wales [up to the value of £ amount. NOT NECESSARY TO INSERT VALUE IF BENEFIT WILL EXCEED REALISABLE ASSETS].
5. Paragraph 4 applies to all the Defendant's assets whether or not the assets are described in this order or are transferred to the Defendant after the order is made, are in his own name and whether they are solely or jointly owned. For the purpose of this order the Defendant's assets include any asset which he has the power, directly or indirectly, to dispose of or deal with as if it were his own. The Defendant is to be regarded as having such power if a third party holds or controls the asset in accordance with his direct or indirect instructions.
6. This prohibition includes the following assets in particular:-
(a) the property known as [INSERT ADDRESS, TITLE NUMBER AND NAME PROPERTY REGISTERED IN] or the net sale money after payment of any mortgages if it has been sold;
(b) the property and assets of the Defendant's business known as [NAME] carried on at [ADDRESS] or the sale money if any of them have been sold;
(c) the assets of a company called AB LIMITED (company number xxxxx), registered address xxxxx;
(d) the shares held by the Defendant in the company called AB LIMITED (company number xxxxx), registered address xxxxx;
(e) any money in the account numbered [ACCOUNT NUMBER & SORT CODE] at [NAME AND ADDRESS OF BANK] held in the name of [NAME(S) IN WHICH ACCOUNT HELD e.g. name of defendant, third party or AB LIMITED].
(f) a vehicle [CAR/ MOTOR BIKE MAKE/MODEL, REGISTRATION NUMBER & WHOSE NAME REGISTERED IN].
(g) jewellery namely [DETAILS] presently in the possession of the [NAME] Police Service.
(h) cash of £ [AMOUNT] currently in the possession of the [NAME] Police Service.
AND IT IS ORDERED THAT:-
The Assets of AB LIMITED be treated as the personal assets of the Defendant.
[INSERT THIS ORDER IF LIFTING THE CORPORATE VEIL]
[7.
(1) If the total value free of charges or other securities ("unencumbered value") of the Defendant's assets in England and Wales exceeds £ [AMOUNT], the Defendant may remove any of those assets from England and Wales or may dispose of or deal with them so long as the total unencumbered value of the Respondent's assets still in England and Wales remains above £[AMOUNT].
(2) If the total unencumbered value of the Defendant's assets in England and Wales does not exceed £[AMOUNT] the Defendant must not remove any of those assets from England and Wales and must not dispose of or deal with any of them. If the Defendant has other assets outside England and Wales, he may dispose of or deal with those assets outside England and Wales so long as the total unencumbered value of all his assets whether in or outside England and Wales remains above £[AMOUNT]. ]
[ONLY INSERT IF REALISABLE ASSETS EXCEEDS BENEFIT. NOT APPLICABLE IN CRIMINAL LIFESTYLE CASES]
8. This prohibition does not include the sum of £ [AMOUNT] held by the [INSERT] Police, seized pursuant to section 294 of the Proceeds of Crime Act 2002, whilst detained pursuant to an order for continued detention made by the [INSERT DETAILS OF THE MAGISTRATES COURT AND DATE OF THE DETENTION ORDER] under section 295(2) of the Proceeds of Crime Act 2002.
9. MRS X must not:-
(1) remove from England and Wales or
(2) in any way dispose of or deal with or diminish the value of the following assets -e
(a) [LIST ASSETS]
10. AB LIMITED (a company in the Control of the Defendant) must not:-
(1) remove from England and Wales or
(2) in any way dispose of or deal with or diminish the value of the following assets -
(a) The assets of the company called AB LIMITED (Company number xxxxx) registered address xxxxxxxxxxxx;
(b) [LIST SPECIFIC ASSETS OF AB LIMITED SEEKING TO RESTRAIN]
Provision Of Information
11. The Defendant must serve a witness statement certified by a statement of truth on the Prosecutor within [NUMBER] days after this order has been served on him setting out all his assets and all assets under his control whether in or outside England and Wales and whether in his own name or not and whether solely or jointly owned, giving the value, location and details of all such assets. The witness statement must include:
(1) the name and address of all persons including financial institutions holding any such assets;
(2) details of the Defendant's current salary or other form of income, identifying the amounts paid, by whom they are paid and the account or accounts into which such sums are paid;
(3) the names and numbers of all accounts held by or under the control of the Defendant, together with the name and address of the place where the account is held and the sums in the account;
(4) details (including addresses) of any real property in which the Defendant has any interest, including an interest in any of the net sale money if the property were to be sold. These details must include details of any mortgage or charge on the property;
(5) details of all National Savings Certificates, unit trusts, shares or debentures in any company or corporation, wherever incorporated in the world, owned or controlled by the Defendant or in which he has an interest;
(6) details of all trusts of which the Defendant is a beneficiary, including the name and address of every trustee;
(7) particulars of any income or debt due to the Defendant including the name and address of the debtor;
(8) details of all assets over £1,000 in value received by the Defendant, or anyone on his behalf, since [INSERT DATE - USUALLY 6 YEARS PRIOR TO COMMENCEMENT OF PROCEEDINGS AGAINST DEFENDANT], identifying the name and address of all persons from whom such property was received.
(9) details of all assets over £1,000 in value transferred by the Defendant, or anyone on his behalf, to others since [INSERT - DATE USUALLY 6 YEARS PRIOR TO COMMENCEMENT OF PROCEEDINGS AGAINST DEFENDANT], identifying the name and address of all persons to whom such property was transferred.
12.
(1) Subject to any further order of the court any information given in compliance with this order shall only be used:-
(a) for the purpose of these proceedings;
(b) if the Defendant is convicted, for the purposes of any confiscation hearing that may take place; and
(c) if a confiscation order is made, for the purposes of enforcing that order, including any receivership proceedings.
(2) There shall be no disclosure of any material disclosed in compliance with this order to any co-defendant in the criminal proceedings.
(3) However, nothing in this paragraph shall make inadmissible any disclosure made by the Defendant in any proceedings for perjury relating to that disclosure.
Repatriation
13.
(1) The Defendant must within 21 days after service of this Order upon him bring any moveable asset in respect of which he has an interest, which is outside England and Wales, to a location within England and Wales.
(2) The Defendant must inform the Crown Prosecution Service of the location within England and Wales within 7 days of the arrival of the assets.
(3) If the asset is cash or credit in a financial institution it must be paid into an interest bearing account and the account holder, location and account number be notified to the Crown Prosecution Service within 7 days.
Exceptions To This Order
14.
(1) This order does not prohibit the Defendant, on the proviso that he is not in prison, from spending up to £250 a week towards his ordinary living expenses, up to the date of the making of any confiscation order. But before spending any money the Defendant must tell the Prosecutor where the money is to come from.
(2) This order does not prohibit MRS X, on the proviso that she is not in prison, from spending up to £250 a week towards her ordinary living expenses, up to the date of the making of any confiscation order. But before spending any money MRS X must tell the Prosecutor where the money is to come from.
(3) This order does not prohibit the Defendant from spending any money he may receive by way of state benefit from the Department of Social Security.
(4) This order does not prohibit the Defendant from spending towards his ordinary living expenses any sum earned by him whilst he is in prison.
(5) The Defendant [and MRS X] may agree with the Prosecutor that the above spending limits be varied or that this Order be varied in any other respect, but any such agreement must be in writing.
(6) This order does not prevent:-
(a) any person from paying any money in satisfaction of the whole or part of any confiscation order which may be made against the Defendant; or
(b) the levy of distress upon any goods subject to this order for the purpose of enforcement of any confiscation order which may be made against the Defendant.
Variation Or Discharge Of This Order
14. Anyone affected by this order may apply to the court at any time to vary or discharge this order (or so much of it as affects that person), but they must first inform the Prosecutor and the Defendant, Mrs X, AB LIMITED, [and/or NAME OF RESTRAINED PARTY] giving two working days notice together with a witness statement in support of the application.
Effect Of This Order
15. A person who is an individual who is ordered not to do something must not do it himself or in any other way. He must not do it through others acting on his behalf or on his instructions or with his encouragement.
16. A person who is not an individual which is ordered not to do something must not do it itself or by its directors, officers, partners, employees or agents or in any other way.
Parties Other Than The Defendant
Effect of this order
17. It is a contempt of court for any person notified of this order knowingly to assist in or permit a breach of this order. Any person doing so may be imprisoned or fined. He is also at risk of prosecution for a money laundering offence.
Set off by banks
18. This order does not prevent any bank from exercising any right of set off it may have in respect of any facility which it gave to the Defendant before it was notified of this order.
Withdrawals by the Defendant
19. No bank need enquire as to the application or proposed application of any money withdrawn by the Defendant if the withdrawal appears to be permitted by this order.
Cash in the custody of the Police
20. The [NAME OF POLICE] may pay the quantities of cash in their custody into an interest bearing account until further order unless required as an exhibit in criminal proceedings against the Defendant.
Existing Charges
21. This order does not prevent any financial institution from enforcing or taking any other steps to enforce an existing charge it has in respect of a property or properties so secured.
Persons outside England, Wales, Scotland and Northern Ireland
22.
(1) Except as provided in paragraph (2) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court, Scotland or Northern Ireland.
(2) The terms of this order will affect the following persons in a country or state outside the jurisdiction of this court, Scotland or Northern Ireland:-
(a) a person to whom this order is addressed or the officer or agent appointed by power of attorney of such a person;
(b) any person who:-
(i) is subject to the jurisdiction of this court, Scotland or Northern Ireland;
(ii) has been given written notice of this order at his residence or place of business within the jurisdiction of this court, Scotland or Northern Ireland; and
(iii) is able to prevent acts or omissions outside the jurisdiction of this court, Scotland or Northern Ireland which constitute or assist in a breach of the terms of this order; and
(c) any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.
Enforcement in Scotland and Northern Ireland
23. This order shall have effect in the law of Scotland and Northern Ireland, and may be enforced there, if it is registered under the Proceeds of Crime Act 2002 (Enforcement in Different Parts of the United Kingdom) Order 2002.
Assets located outside England and Wales
24. Nothing in this order shall, in respect of assets located outside England and Wales, prevent any third party from complying with-
(1) what it reasonably believes to be its obligations, contractual or otherwise, under the laws and obligations of the country or state in which those assets are situated or under the proper law of any contract to which it is a party; and
(2) any orders of the courts of that country or state, provided that reasonable notice of any application for such an order is given to the Prosecutor;
unless those assets are situated in Scotland or Northern Ireland, in which case this order must be obeyed there.
Undertakings
25. The Crown Prosecution Service gives to the court the undertakings set out in Schedule B to this order.
Duration Of The Order
26. This order will remain in force until it is varied or discharged by a further order of this court.
Interpretation
27. Reference to the "Defendant" means Mr X. Reference to an asset belonging to the Defendant includes any property in which the Defendant has an interest and any property to which the Defendant has a right.
28. A period of time expressed as a number of days shall be computed as clear days as defined in rule 57.2 of the Criminal Procedure Rules 2005.
Costs
29. The costs of this order are reserved.
Communications With The Court
All communications to the court about this order should be sent to the Crown Court [ADDRESS] quoting the case number. The office is open between 10am and 4:30pm Monday to Friday. The telephone number is [TELEPHONE NUMBER].
Address Of The Prosecutor For Service And Any Communication In Respect Of These Proceedings
All communications to the Prosecutor about this order should be sent to the Crown Prosecution Service [ADDRESS]. Telephone number [TELEPHONE NUMBER] quoting the Defendant's name. The CPS is open between 9am and 5pm Monday to Friday.
COURT STAMP
Schedule A
Witness Statements
(1) Witness Statement of [NAME & DATE]
Schedule B
Undertakings Given To The Court By The Prosecutor
(1) The Prosecutor will serve upon the Defendant, Mrs X and AB LIMITED [and NAME OF RESTRAINED PERSON]:-
(a) a copy of this order; and
(b) a copy of the witness statement containing the evidence relied upon by the Prosecutor, and any other documents provided to the court on the making of the application.
(2) Anyone notified of this order will be given a copy of it by the Prosecutor.
(3) The Prosecutor will pay the reasonable costs of anyone other than the Defendant, Mrs X and AB LIMITED [and NAME OF RESTRAINED PERSON] which are incurred as a result of this order including the costs of finding out whether that person holds any of the Defendant's assets, save that the Prosecutor will not without an order of the court be obliged to pay any legal or accountancy costs so incurred unless the Prosecutor first gives its consent in writing.
- Restraint
