Restraint orders are one of the most restrictive tools available to investigators and prosecutors under the Proceeds of Crime Act 2002 (POCA). A restraint order is a type of court order that freezes access to property and assets, with the aim of preventing those under suspicion of a criminal offence by the police or other authorities from transferring, hiding, spending or otherwise dissipating wealth while a criminal investigation is ongoing. The primary function is to ringfence funds where investigators suspect there could have been a financial gain from crime. Funds and property are frozen so that an investigation can take place, and usually with a view to making a confiscation order upon conviction.

While these orders are powerful and can be more restrictive than Account Freezing Orders, the law recognises that people subject to a restraint order still need access to money to live. A restraint order that applies to all of a defendant's assets can mean that they are left without the funds they need to live, or for the legal services they need to defend themselves. Thankfully, you can work with a solicitor to apply to the court and have the order varied or discharged, which allows you to regain limited access to restrained funds or restores your access entirely. The courts allow an exception for reasonable living expenses and certain legal expenses.

It is important to note that what counts as “reasonable” varies depending on circumstances, and these ordinary living expenses are granted at the court's discretion. As such, it is important to work with a solicitor who understands the details of the Proceeds of Crime Act and has experience supporting those who may later face confiscation proceedings.

Here, JMW's expert business crime solicitors explain when a restraint order may be imposed, how you can apply to access living expenses and how much you might be permitted. We will also cover the role our defence solicitors can play in securing reasonable expenses on your behalf, working to have the order varied or discharged, and building a defence against the allegations you are facing.

When Might a Restraint Order Be Used?

A restraint order is granted by the Crown Court on application by an investigating authority, including the Crown Prosecution Service (CPS) or the Serious Fraud Office (SFO).

It can be made at different stages of an investigation:

• Pre-charge: If there are reasonable grounds to suspect that a person has benefited from criminal conduct, a restraint order can be imposed even before formal charges are laid.
• During proceedings: Once a prosecution is under way, restraint orders are often sought to ensure that any assets remain available for confiscation if there is a conviction.
• Post-conviction: Even after a guilty verdict, a restraint order may continue in force to secure assets until confiscation proceedings are complete.

The scope of a restraint order is wide. It can cover bank accounts, property, vehicles, investments, and can include overseas assets. The individual is prohibited from dealing with those assets, subject to limited exceptions.

The order may be granted without notice, which means that you may not know that your access to your funds has been restricted until it is too late. As such, it is important to act quickly to secure the funds you will need for reasonable legal expenditure and living expenses. It may also be possible to have the order discharged before it takes effect if you are warned that the authorities are pursuing a restraint order, or shortly after it takes effect, in some cases.

How Can I Access Reasonable Living Expenses?

Although a restraint order restricts access to assets, it normally contains a clause allowing the subject to apply for reasonable living expenses. This reflects the balance the law seeks to achieve: preventing dissipation of criminal proceeds while ensuring a person can still meet daily needs. You can also speak to a solicitor about challenging the court order on your behalf.

The process usually involves making an application to the court with a request for the release of funds to cover specific living expenses. A judge will then consider what level of allowance is appropriate, having regard to the facts of the case. It is important to work with a solicitor during this process to prepare a strong case, based on evidence, for the maximum amount of living expenses that you are likely to need.

The law does not provide a set or average figure for what constitutes "reasonable" living expenses. Instead, your allowance will be assessed based on the facts of the case and your life circumstances. The court will consider:

• Necessity: Only essential expenditure will be allowed, such as money for food, housing, utilities, transport and childcare.
• Lifestyle history: Courts look at the standard of living enjoyed before the restraint order, but will not allow extravagance.
• Asset preservation: If maintaining, repairing or paying for an asset may be required to preserve its value (for example, paying insurance or mortgage arrears), this may be considered reasonable.
• Other available resources: If the individual has unrestrained assets or income, they will be expected to use these first.
• Duration of the order: The longer a restraint order is expected to last, the more carefully the court will scrutinise requested allowances.

The team at JMW will gather evidence of your lifestyle and your specific needs to make sure the court takes everything into account when deciding whether to permit expenditure and how much you should receive.

There is no statutory cap, and the amount varies widely from case to case. The court will typically approve:

• A weekly or monthly allowance to cover food, transport and utilities.
• Funds for rent or mortgage payments, if necessary to preserve a home.
• Money for insurance, medical needs or childcare costs.

Expenditure on luxury items, private school fees, or discretionary spending is usually disallowed, unless there are compelling reasons. Discuss these with your solicitor if you have concerns about whether or not they fall under the banner of reasonable expenses and whether you have legal options to recover the funds you need for these items or services.

If the court is satisfied with your application, it will vary the restraint order to allow access to an agreed weekly or monthly sum. A solicitor can not only improve the outcome by improving your chance of having your living expenses approved, but may find opportunities to challenge the order itself when reviewing your circumstances.

Can I Access Reasonable Legal Expenses?

POCA specifically prohibits restrained assets from being used to pay for legal representation in criminal proceedings. However, some reasonable legal expenses related to civil proceedings arising alongside the criminal case, or for other legal matters, may be included. For example, reasonable legal expenditure tied to divorce or family proceedings, or contractual disputes not directly linked to any alleged criminal offence, may be allowed.

Whether to allow legal expenses under living expenses is up to the court’s discretion and whether the issue is incidental to, or independent from, the criminal prosecution.