Restraint order

Last updated

A restraint order is an order which has the effect of freezing the assets and bank accounts of the persons against whom it is directed, in consequence of a belief by the authorities that some crime has been committed from which a person has benefited financially.

Contents

A restraint order is therefore related to criminal investigations and criminal proceedings. It has some parallels to a Mareva injunction which might be obtained against a defendant in civil proceedings.

Background

The legal basis for restraint orders in England & Wales currently is sections 40 - 47 [1] of the Proceeds of Crime Act 2002. In England & Wales a restraint order under PoCA 2002 would be made in the Crown Court. Restraint orders in other parts of the UK are based on other sections of PoCA 2002 and made in the appropriate court in each jurisdiction.

History

However restraint orders were provided for in earlier English statute law going back to the Drug Trafficking Offences Act 1986. [2] In relation to suspected criminal conduct which extends back prior to 24 March 2003 (when the relevant provisions of PoCA 2002 came into force) that earlier legislation may still be relevant. [3]

Initially restraint orders were introduced only in relation to suspected drugs offences, but restraint orders for other types of offence were introduced by the Criminal Justice Act 1988. Under the Proceeds of Crime Act 2002 the same procedures apply in both drugs and non-drugs cases.

The making of an order

A restraint order can be made by a Crown Court judge on the application of a prosecuting or investigating authority. The subjects of the restraint order may be individuals or companies who either are alleged offenders who are believed to have benefited from a criminal offence, or are persons who have received (by way of what is known as a 'tainted gift' [4] ) an asset from an alleged offender.

A restraint order may be made at any time after a criminal investigation has commenced and there are reasonable grounds to suspect that an individual or company has benefited from criminal conduct. [5] In practice a restraint order will often be obtained at the stage where an investigation has progressed and an arrest is either imminent or has recently been made. A copy of the restraint order has to be served on every subject of it. Where a police investigation is being conducted without the suspect being aware of it, then the police may delay obtaining a restraint order to avoid alerting the suspect to the existence of their ongoing investigation. Once an arrest has been made there is no longer any advantage in delaying obtaining the restraint order. For this reason the restraint order may be obtained shortly before the arrest is made, and served on the suspected offender at the time of his arrest.

Purpose and scope of the order

The purpose of a restraint order is to prevent the dissipation of assets (for example by them being spent, hidden, given away, or moved out of the country) so that they remain available for confiscation following the conviction of the alleged offender. Typically a restraint order is expressed to cover all assets and bank accounts of the subject anywhere in the world.

Effect of the order

Technically a restraint order prevents the subject of it from "dealing with" his assets. [6] There is normally a provision in the restraint order allowing the subject to draw and spend a sum of money, typically £250 per week, to meet day to day living expenses. [7]

A restraint order may also contain clauses requiring the subject of the order to disclose information to the authorities concerning his assets. [8]

The order document

The order itself is likely to be a lengthy legal document. [9] A person served with a restraint order should obtain appropriate legal advice from a suitably experienced solicitor without delay.

Breach of the order

Breach of a restraint order may result in a fine or imprisonment for contempt of court or perverting the course of justice. [10]

Duration of the order

A restraint order continues in force until it is discharged (cancelled) by the Crown Court. This could be on an application by the subject of the order, or where proceedings are not brought within a reasonable time as a consequence of a criminal investigation which has not resulted in anyone being charged, [11] or on the acquittal of the alleged offender, or on the satisfaction of any confiscation order made by the Crown Court following the alleged offender’s conviction. [12]

Related Research Articles

An indictment is a criminal accusation that a person has committed a crime. In jurisdictions that use the concept of felonies, the most serious criminal offence is a felony; jurisdictions that do not use the felonies concept often use that of an indictable offence, an offence that requires an indictment.

Crown Prosecution Service United Kingdom government non-ministerial department

The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions (DPP).

Criminal Assets Bureau

The Criminal Assets Bureau (CAB) is a law enforcement agency in Ireland. The CAB was established with powers to focus on the illegally acquired assets of criminals involved in serious crime. The aims of the CAB are to identify the criminally acquired assets of persons and to take the appropriate action to deny such people of these assets. This action is taken particularly through the application of the Proceeds of Crime Act, 1996. The CAB was established as a body corporate with perpetual succession in 1996 and is founded on the multi-agency concept, drawing together law enforcement officers, tax officials, social welfare officials as well as other specialist officers including legal officers, forensic analysts and financial analysts. This multi-agency concept is regarded by some as the model for other European jurisdictions.

Crown Office and Procurator Fiscal Service independent public prosecution service for Scotland

The Crown Office and Procurator Fiscal Service is the independent public prosecution service for Scotland, and is a Ministerial Department of the Scottish Government. The department is headed by Her Majesty's Lord Advocate, who under the Scottish legal system is responsible for prosecution, along with the area procurators fiscal. In Scotland, virtually all prosecution of criminal offences is undertaken by the Crown. Private prosecutions are extremely rare.

Magistrates court (England and Wales)

In England and Wales, a magistrates' court is a lower court which holds trials for summary offences and preliminary hearings for more serious ones. Some civil matters are also decided here, notably family proceedings. In 2015, there were roughly 330 magistrates' courts in England and Wales, though the government was considering closing up to 57 of these. The jurisdiction of magistrates' courts and rules governing them are set out in the Magistrates' Courts Act 1980.

Procurator fiscal public prosecutor in Scotland

A procurator fiscal, sometimes called PF or fiscal, is a public prosecutor in Scotland. They investigate all sudden and suspicious deaths in Scotland, conduct fatal accident inquiries and handle criminal complaints against the police. They also receive reports from specialist reporting agencies such as Her Majesty's Revenue and Customs.

Civil recovery is the method in some legal systems employed to recover the proceeds of crime, instead of, or in addition to, criminal.

Proceeds of Crime Act 2002 United Kingdom legislation

The Proceeds of Crime Act 2002 (c.29) (POCA) is an Act of the Parliament of the United Kingdom which provides for the confiscation or civil recovery of the proceeds from crime and contains the principal money laundering legislation in the UK.

Criminal Justice Act 2003 United Kingdom legislation

The Criminal Justice Act 2003 (c.44) is an Act of the Parliament of the United Kingdom. It is a wide-ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland.

A police caution is a formal alternative to prosecution in minor cases, administered by the police in England and Wales. It is commonly used to resolve cases where full prosecution is not seen as the most appropriate solution. Accepting a caution requires an admission of guilt.

Asset forfeiture Confiscation of assets by the state

Asset forfeiture or asset seizure is a form of confiscation of assets by the state. In the United States, it is a type of criminal justice financial obligation. It typically applies to the alleged proceeds or instruments of crime. This applies, but is not limited, to terrorist activities, drug related crimes, and other criminal and even civil offenses. Some jurisdictions specifically use the term "confiscation" instead of forfeiture. The alleged purpose of asset forfeiture is to disrupt criminal activity by confiscating assets that potentially could have been beneficial to the individual or organization.

A private prosecution is a criminal proceeding initiated by an individual or private organisation instead of by a public prosecutor who represents the state. Private prosecutions are allowed in many jurisdictions under common law, but have become less frequent in modern times as most prosecutions are now handled by professional public prosecutors instead of private individuals who retain barristers.

Youth justice system in England and Wales comprises the organs and processes that are used to prosecute, convict and punish persons under 18 years of age who commit criminal offences. The principal aim of the youth justice system is to prevent offending by children and young persons.

Serious Crime Act 2007 United Kingdom legislation

The Serious Crime Act 2007 is an Act of the Parliament of the United Kingdom that makes several radical changes to English criminal law. In particular, it creates a new scheme of serious crime prevention orders to frustrate crime in England and Wales and in Northern Ireland, replaces the common law crime of incitement with a statutory offence of encouraging or assisting crime, makes provision as to disclosure and information sharing in order to prevent fraud, and abolishes the Assets Recovery Agency creating a new regime for the recovery of the proceeds of crime.

Prevention of Money Laundering Act, 2002

Prevention of Money Laundering Act, 2002 is an Act of the Parliament of India enacted by the NDA government to prevent money-laundering and to provide for confiscation of property derived from money-laundering. PMLA and the Rules notified there under came into force with effect from July 1, 2005. The Act and Rules notified there under impose obligation on banking companies, financial institutions and intermediaries to verify identity of clients, maintain records and furnish information in prescribed form to Financial Intelligence Unit - India (FIU-IND).

Human trafficking in Australia

Human trafficking in Australia is illegal under Divisions 270 and 271 of the Criminal Code (Cth). In September 2005, Australia ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, which supplemented the United Nations Convention against Transnational Organized Crime. Amendments to the Criminal Code were made in 2005 to implement the Protocol.

Life imprisonment has been the most severe criminal sentence in New Zealand since the death penalty was abolished in 1989 having not been applied since 1957. Offenders sentenced to life imprisonment must serve a minimum of 10 years imprisonment before they are eligible for parole, although the sentencing judge may set a longer minimum period or no minimum period at all. Released offenders remain on parole and are subject to electronic tagging for the rest of their life.

Sentencing in England and Wales refers to a bench of magistrates or district judge in a magistrate's court or a judge in the Crown Court passing sentence on a person found guilty of a criminal offence. In deciding the sentence, the court will take into account a number of factors: the type of offence and how serious it is, the timing of any plea of guilty, the defendant's character and antecedents, including his/her criminal record and the defendant's personal circumstances such as their financial circumstances in the case of a fine being imposed.

A criminal behaviour order (CBO) is an order to the offender issued by a judge in England and Wales, at the request of the prosecution, under Part 2 of the Anti-Social Behaviour, Crime and Policing Act 2014.

Organized crime in Singapore has a long history with secret societies such as Ghee HinKongsi carrying out their activities in the 19th century. These organized groups hold great relevance to Singaporean modern history. Since 1890, organized groups began fading from Singapore, decline in street organized crime in the past years due to legislation has been put place to ensure authorities suppress the activities of criminal gangs. Contemporary Singapore witnessed a significant rise in other forms of crime —organized cyber-crime.

References

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.