A restraint order is a type of court order used in criminal investigations where the authorities believe that a person has benefited financially from criminal conduct. Its purpose is to freeze assets including bank accounts, property, vehicles or investments that the police believe may be connected to a criminal offence while an investigation takes place. The restraint order ensures that assets cannot be dissipated, moved, withdrawn or spent before the conclusion of criminal proceedings.

In practice, a restraint order can have a far-reaching effect on your financial freedom. When you are facing restrained funds, you may be left without the money you need for day-to-day spending or the operating costs for your business. It can also be difficult to access money for legal fees in order to fight back against a restraint order. Proceedings do not need to have begun for the order to be granted, which often means that people find out about a restraint order only after it has been granted.

In these cases, it is vital to know that you have legal options. You can apply to have restrained assets restored or to have a restraint order varied or discharged, to restore your access to certain reasonable expenses. In some cases, you may also have grounds to challenge a restraint order and have it overturned.

The specialist restraint order solicitors at JMW can offer expert advice on your options and help to restore your access to your funds. If you are facing a criminal charge related to the funds under investigation, we can also offer legal support with your defence and help you to secure the best possible outcome. Here, our experienced team explains the most common grounds for challenging a restraint order and details how you can apply to have the document varied or overturned.

How Does a Restraint Order Work?

The legal framework for restraint orders is set out under the Proceeds of Crime Act 2002 (POCA). This legislation aims to recover any financial benefits of criminal activity and disrupt further offending by limiting access to funds. Under POCA, authorities such as the police, the Crown Prosecution Service and the Serious Fraud Office can apply for a restraint order at any stage of a criminal investigation or prosecution, provided there are reasonable grounds to believe that the person under investigation has benefited from criminal conduct.

The restraint order does not in itself mean the individual is guilty, and prosecutors often seek restraint orders early in an investigation if there is a risk that assets could be hidden, transferred or otherwise put out of reach of law enforcement. The order remains in force until it is discharged by the court. As such, you may find yourself unable to access your assets long before a criminal prosecution begins, from the beginning of an investigation through any delays that arise in court proceedings, without having done anything wrong.

If the defendant is found guilty and their assets are found to be recoverable property, confiscation proceedings may begin as a way to recover the frozen assets. An experienced POCA solicitor can help you to have a restraint order discharged and represent you during confiscation proceedings to have your assets returned to you, even following a criminal conviction.

How Can You Challenge a POCA Restraint Order?

Although restraint orders are powerful tools, they can be challenged. The first approach is to have the order varied to allow the subject access to funds for daily living expenses. A solicitor can help you to prepare this type of application and give you the best chance of success. This provides immediate relief and will allow you to deal with the further complications of your case with the most urgent aspects taken care of.

From there, defendants and affected third parties may apply to have a restraint order discharged if they can demonstrate valid grounds for doing so. There are several potential approaches to this, and although it is only possible in certain circumstances a solicitor can advise you of the best approach.

One of the most common grounds for challenge is lack of necessity. The prosecution must show that the order is needed to prevent the dissipation of assets. If the individual can prove that there is no realistic risk of assets being concealed or moved, the court may be persuaded to lift or amend the order. For example, if the assets in question are fixed property that cannot easily be transferred or hidden, this may support an argument that restraint is unnecessary.

Another frequent line of challenge is disproportionality. A restraint order must not impose greater restrictions than are justified by the alleged benefit from crime. If the order freezes assets far in excess of the sum thought to amount to the proceeds of crime, it may be excessive. In such cases, our team can gather evidence such as financial records, valuations and proof of essential expenses to show the imbalance between the scope of the order and the allegations being investigated.

A further ground is the absence of reasonable suspicion. To grant a restraint order under POCA, the court must be satisfied that there is reasonable cause to suspect criminal benefit. If the prosecution cannot substantiate its suspicion with sufficient evidence, or if the investigation has been ongoing without progress for an extended period, the defence may argue that the basis for the order no longer exists. Demonstrating this often involves careful analysis of the prosecution’s disclosure, highlighting weaknesses in the evidence, and showing that the threshold test has not been met, all areas in which our criminal defence team has a wealth of expertise.

If, in this analysis, we find that the prosecution failed to make full and frank disclosure when applying for the order - by omitting facts that might have influenced the court, for example - we could challenge the restraint order on this basis. Where the challenge is successful, the order may be discharged altogether or varied to allow greater financial freedom.