Crime and Policing Act 2026 - POCA Part 2: Restraint orders
The Crime and Policing Act 2026 introduces important reforms to the restraint order regime under Part 2 of the Proceeds of Crime Act 2002 (POCA).
Unlike some of the wider confiscation reforms introduced by Schedule 21, these amendments do not fundamentally alter when restraint orders may be obtained. Instead, they place much of the existing case law and judicial practice onto a clear statutory footing, providing greater certainty for prosecutors, defendants and the courts.
The reforms introduce statutory guidance on one of the most frequently litigated issues in restraint proceedings: whether there is a genuine risk that assets will be dissipated. They also clarify how courts should approach applications for legal expenses, living expenses and the review of restraint orders following conviction.
What is a restraint order?
A restraint order freezes assets to prevent them being disposed of before confiscation proceedings are concluded.
Its purpose is straightforward. If there is a realistic prospect that a confiscation order may be made, the court may restrain the defendant's assets to ensure they remain available for enforcement.
Because restraint orders can significantly interfere with a person's ability to deal with their own property, courts have always needed to balance the interests of effective asset recovery against the rights of the individual.
The Crime and Policing Act 2026 seeks to make that balancing exercise more transparent by specifying the matters that judges must now consider when exercising their discretion.
What has changed?
Part 9 of Schedule 21 introduces a series of amendments affecting restraint orders under POCA.
The reforms cover five principal areas:
statutory guidance on assessing the risk of dissipation
legal expenses
living expenses
lengthy investigations before proceedings begin
review of restraint orders after conviction
Most practitioners will recognise these issues from existing restraint litigation.
The difference is that Parliament has now identified the factors courts should consider, creating a more structured and consistent approach across England and Wales.
A statutory test for the risk of dissipation
Perhaps the most significant reform is the codification of the risk of dissipation test.
Previously, much of the law developed through judicial decisions.
The Crime and Policing Act 2026 now requires courts to consider seven statutory factors when deciding whether there is a real risk that assets may be dissipated.
These include:
the nature of the property
any steps already taken to dispose of it
the circumstances of the person holding the property
evidence of that person's character
the defendant's criminal record
the suspected criminal benefit
the stage reached in the criminal proceedings.
None of these factors is determinative.
Instead, they provide judges with a structured checklist when exercising their discretion.
For practitioners, this should make restraint applications more predictable while providing a clearer framework for challenging or supporting the existence of dissipation risk.
Legal expenses
One of the more sensitive issues in restraint proceedings concerns funding legal representation.
The 2026 reforms expressly provide exceptions that allow restrained assets to be released for reasonable legal expenses.
However, the legislation also requires the court to:
restrict the exception to expenses that are reasonably incurred
specify the maximum amount that may be released
impose any appropriate conditions.
The legislation also enables the Lord Chancellor to introduce regulations governing legal aid related exceptions in the future.
Although restraint orders have long allowed certain legal expenses in appropriate cases, the reforms provide greater statutory clarity regarding how these exceptions should operate.
Living expenses
The Act also provides a more detailed statutory framework for applications seeking funds for everyday living expenses.
Rather than leaving the issue largely to judicial discretion, courts must now consider factors including:
how long the restraint order is likely to remain in force
the person's means and standard of living
the value of the restrained property
the likely value of any future confiscation order
whether releasing funds is necessary to preserve the restrained assets themselves.
Importantly, the relevant standard of living is the person's standard immediately before the restraint order was made.
However, if that lifestyle resulted from criminal conduct, the court is expressly permitted to disregard it.
This reflects the wider objective introduced elsewhere in Schedule 21 of ensuring confiscation powers deprive defendants of criminal benefit without unnecessarily preserving the financial advantages derived from offending.
Delays before criminal proceedings begin
Restraint orders can sometimes remain in force for lengthy periods before criminal proceedings commence.
The Crime and Policing Act 2026 introduces statutory guidance on situations in which defendants argue that proceedings have not started within a reasonable time.
Courts must now consider factors including:
the length of the delay
the prosecutor's explanation
the complexity of the investigation
international aspects of the investigation
the complexity of anticipated proceedings
the nature of the restrained property
the impact of the restraint order on affected individuals.
Again, much of this reflects principles already considered by courts.
The legislation places those considerations onto a statutory footing.
Post-conviction reviews of restraint orders
The reforms also address restraint orders following conviction.
When deciding whether to maintain or vary a restraint order after conviction, the court must now consider not only the conviction itself but also whether financial orders are likely to follow.
These include:
confiscation orders
surcharge payments
unlawful profit orders
slavery and trafficking reparation orders.
The court may also review existing exceptions to restraint orders following conviction and vary them where appropriate.
This recognises that the purpose of restraint evolves once conviction has been secured and confiscation proceedings become the primary focus.
Practical implications
Although these amendments may appear procedural, they are likely to have a significant practical impact.
For prosecutors, restraint applications should become more structured, with statutory guidance supporting the evidence presented to the court.
For defence practitioners, the legislation provides a clearer framework for challenging applications, particularly where the alleged dissipation risk is weak or where reasonable living expenses or legal expenses are genuinely required.
For forensic accountants, the reforms may increase the importance of detailed evidence concerning:
the nature and value of restrained assets
whether assets genuinely require preservation
available funds for living expenses
the proportionality of continuing restraint
the likely recoverable amount under any future confiscation order.
As confiscation proceedings themselves become more tightly managed under the wider Crime and Policing Act 2026 reforms, restraint orders are also likely to receive greater judicial scrutiny throughout the life of the case.
Final thoughts
The restraint order reforms introduced by the Crime and Policing Act 2026 are evolutionary rather than revolutionary.
Rather than creating entirely new powers, Parliament has largely codified existing judicial principles, providing clearer statutory guidance for courts exercising discretion.
The result should be:
greater consistency in restraint applications
more predictable decision-making
clearer rules governing legal and living expenses
improved oversight of lengthy restraint orders
a more structured approach following conviction.
Taken together with the wider reforms to confiscation proceedings, criminal lifestyle provisions, benefit calculations, timetabling, and early resolution meetings, these amendments constitute the most significant overhaul of the criminal confiscation regime since POCA came into force in 2003.
