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Home » Legal Resources » Legal Guidance » P to R » Proceeds Of Crime Guidance Restraint and Management Receivers

Restraint and Management Receivers: Proceeds Of Crime

Updated 22/02/10

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.

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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) makes 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.
  • 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 now 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.

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 Director of the Assets Recovery Agency (ARA) 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;
  • a Customs officer of similar rank, or;
  • an accredited financial investigator designated by the Secretary of State.

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.

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 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 or the Director of ARA 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 or the Director of ARA 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 or Director 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 or the Director does not intend to proceed (see section 40 (7) (8)).

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 free 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.
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 asset 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 defendant's 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 me 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.

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. If there is insufficient to pay the Receiver's costs then the prosecutor, who will have indemnified the Receiver as to his costs, will pay any remaining costs.

Accordingly, prosecutors should seek their line manager's approval, before any application is made to the Court to appoint a management receiver from the CPS approved panel.

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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 lawyer 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. A failure to comply with this duty may lead to an order being subsequently discharged and costs being awarded against the CPS.

The Crown Court (Confiscation, Restraint and Receivership) Rules 2003 SI 2003 No. 421 (the Rules), provide 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
    • specify the stage of the investigation
    • 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.

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 in the annex 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 39 of the rules 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.

Serve order and witness statement in support

Rule 17 of the Rules require 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.

Register an interest in any registered land

An inhibition 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 in one of the directories kept on branch.

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. 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).

The rules require 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, 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, 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.

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.

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 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.

Appeals

The appeal procedure may be found in a combination of POCA, the Criminal Appeal (Confiscation, Restraint and Receivership) Rules 2003 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 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 House of Lords 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 House of Lords.

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.

Although the judge has a discretion whether or not to grant an application for a restraint order, it can be seen that the exercise of the discretion is far from unfettered.

Undertakings by the prosecutor

The Crown Court may require the applicant to give an undertaking to pay the reasonable expenses of any person other than the defendant or the recipient of a tainted gift, which are incurred as a result of the restraint order.

Management Receivers

Choice of receiver

A panel of receivers will be appointed to act on behalf of the CPS on a range of confiscation related matters across the 42 Areas.

Areas will take receivers from a national panel on a case-by-case basis; geography does not impact on the selection and use of receivers. Receivers will be appointed to the panel after a rigorous tendering exercise and be experienced in this work and fully acquainted with the Department's requirements.

The project team, on behalf of the Service, will undertake the tendering and the setting up of the panel.

The receiver's letters of appointment will agree the fees they charge and the terms and conditions under which they will work.

Application to court

The Crown Court may determine the application without a hearing. The Rules state 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 witness's 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.

A draft receivership order must accompany the witness statement.

Hearsay evidence

Hearsay evidence is admissible in restraint and receivership applications, however Rule 39 of the rules 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;
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 Appeal (Confiscation, Restraint and Receivership) Rules 2003 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 at level E, or by the head of the relevant trials unit after consultation with CCB.

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 House of Lords.

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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.

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