Restraint of your assets can take place long before any finding of guilt and can be devastating to your personal and professional life. As a barrister with over 15 years’ experience in civil and criminal proceedings, I will robustly advise you and defend any attempt by the Prosecution or regulatory authority to have a Restraint Order put in place.
What is a Restraint Order?
A Restraint Order can be obtained by a prosecuting authority at an early stage of a criminal investigation, often before charges are brought. With the introduction of the Proceeds of Crime Act 2002 came an increased determination by the government to confiscate assets of those individuals whom authorities suspected to be guilty of criminal activity.
Restraint Orders are issued by courts as a way of freezing or preserving assets that may be later confiscated, under a Confiscation Order, following a criminal conviction. It is possible, if you are under investigation for serious fraud, money laundering or VAT and Tax fraud, that you will be the subject of a Restraint Order.
Considered extremely draconian in nature, a Restraint Order will only be issued after the Court considers the balance between the need to prevent dissipation and the reasonable ongoing expenditure of the subject. Care must be taken when issuing a Restraint Order as doing so can have devastating consequences for innocent parties such as business partners, trustees, and contractual suppliers to a business. In addition, you and your family members may find your bank accounts frozen and be unable to use credit and debit cards.
How will I pay for things if I am made subject to a Restraint Order?
If you become subject to a Restraint Order, you will be provided with a weekly allowance from your assets. Even if this allowance is insufficient for you and your family’s basic needs, you will be prevented from accessing your additional assets. Instead, you will need to renegotiate with the Court and prosecuting authorities for an allowance increase.
Finding yourself in this position is extremely stressful and can put an enormous strain on family relationships. When instructing me, you can be fully confident that I will negotiate hard for an allowance increase should you already have a Restraint Order in place. However, the best path is to ensure the order is never realised by contacting me as soon as prosecuting authorities apply to the Court for an order to restrain your property and/or assets.
If you have been accused of a serious crime and are concerned about the potential of a restraint order and subsequent confiscation proceedings, you need to contact me as soon as possible. I will give you practical legal advice, help you detail your assets for the court and represent you in any court proceedings.
How is an application for a Restraint Order defended?
When an application for a Restraint Order is made, the judge must use his or her discretion based on the evidence produced by a financial investigator. If the application is made ex parte (without notice) there will be scope to vary the order, reflecting the fact there is little room for checks and balances to be made.
If the conditions for a Restraint Order against property and/or assets exists, the Prosecution needs to prove there is a real risk of dissipation. I will robustly defend such assertions, using expert evidence to prove that there is no risk of any property or assets being disposed of or tampered with prior to trial. If it is proven to the judge that there is no risk of dissipation, they cannot lawfully make a Restraint Order. However, it is important to instruct an experienced barrister who understands how such a defence works to ensure there is no risk of the order being made due to the defence not being strong enough.
I will work with you and your Solicitor to prove that there is no reason for a Restraint Order to be granted. To save time and legal fees, you can also instruct me directly, and if a Solicitor is also required, I will immediately inform you.