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Restraint
The Proceeds of Crime Act (POCA) 2002 combines previous legislation and introduced wide-ranging, groundbreaking powers to enable the police and law enforcement authorities to reduce the harm caused by crime and the perceptions of crime.
POCA was intended to enforce the 'crime does not pay' message by depriving offenders of the benefits obtained from their criminality (i.e. preventing them living the life of luxury on the proceeds of their crimes). The power to restrain assets is a powerful tool in the asset recovery process and POCA is now the primary legislation used in financial investigations.
On this page:
What is the purpose of a Restraint Order?
A Restraint Order is granted to prevent a suspect from dissipating, diminishing or disposing of assets before a Confiscation Order is made.
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Who can apply for a Restraint Order?
Under POCA, a police officer, customs officer or accredited financial investigator can apply for a Restraint Order.
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What Court has the power to make a Restraint Order?
The Crown Court now has the power to make a Restraint Order. Under the previous legislation, applications had to be made to the High Court.
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At what stage of a criminal investigation can a Restraint Order be sought?
Under POCA a Restraint Order can be sought once a criminal investigation has commenced. Previously, the application could only be made when the Prosecutor had a 'settled intention' to proceed with criminal proceedings. In complicated cases, criminal charges can take years following a suspect's arrest and this led to concerns that suspects could dissipate, diminish or dispose of their assets between arrest and charge.
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Can legal costs be met if a POCA Restraint Order is in place?
POCA prevents funds under restraint being released to the suspect/defendant (or the recipient of a 'tainted gift') for legal expenses relating to the offences in respect of which the Restraint Order is made.
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Are Restraint Orders being extensively sought?
Yes. The Serious Organised Crime Agency (SOCA) alone reported that in 2010/11 and 2009/10 it obtained Restraint Orders totalling £45.8m and £103.7m of assets respectively.
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I have been made subject of a Restraint Order. What can I do?
If you have been made subject of a POCA Restraint Order the best thing you can do is the 'right thing'; the worst thing you can do is nothing. Specialist advice is essential and OneE TDI can help.
The recent case of Eastenders Cash & Carry v HMRC [2010] EWHC 2797) demonstrates that law enforcement does not always get it right. This was a suspected alcohol diversion fraud HM Revenue & Customs (HMRC) asserted suspicions to satisfy the High Court that a Restraint Order should be granted. It was later decided there was no supporting evidence to make such assertions.
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How can OneE TDI help?
POCA is a draconian piece of legislation. In many cases, it has been properly used and led to criminals losing their 'ill-gotten gains'. However, OneE TDI has acted or been instructed in a number of cases where we have successfully demonstrated that the Prosecution's assertions either had no supporting evidence, were unjust or there would be a serious risk of injustice were the Court to agree them.
At the core of OneE TDI is a highly experienced team specialising in all areas of POCA investigations. Mark Taylor was a Case Director in HMRC's Restraint, Confiscation & Civil Forfeiture Unit and became an Accredited Financial Investigator authorised by the Asset Recovery Agency. He successfully obtained and executed POCA Court Orders and so knows how best to present and defend a case. He is now an associate member of the Proceeds of Crime Lawyers Association (POCLA) and is a recognised expert in this area of law.
We offer confidential, non-judgemental and invaluable advice and have a proven track record in challenging Prosecution assertions, benefit calculations (including defending client's from the statutory assumptions) and disproving hidden asset arguments. We work with instructing lawyers to control and manage all confiscation cases.
Please see the Testimonials kindly provided by our clients (or their accountants or lawyers), which confirm our levels of client service.
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How can I contact OneE TDI?
If you would like a free, no obligation discussion with us please contact either Gary Rowson or Mark Taylor on 0800 652 6156 or complete and submit the online form below:
Whilst we endeavour to provide informative and accurate information, the content on this site is for general information purposes only and should not be taken to constitute tax or legal advice which must always be tailored to individual circumstances. Please contact us if you would like to discuss matters.
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