Understanding Restraint Orders in POCA Proceedings
What Is a Restraint Order in POCA?
A restraint order is one of the strongest tools under the Proceeds of Crime Act 2002 (POCA). It freezes a defendant’s assets at an early stage to ensure that, if a confiscation order is later made, there are funds available to satisfy it.
The order is made by the Crown Court and usually prevents the defendant, and sometimes others from dealing with any realisable property. Importantly, restraint orders can be granted before a charge is brought, making them a serious early intervention in criminal proceedings.
When Can the Court Make a Restraint Order?
Under section 41 POCA, a restraint order may be made if the conditions in section 40 are satisfied. This typically includes situations where:
A criminal investigation has started, and there are reasonable grounds to believe the defendant has benefited from criminal conduct.
Proceedings for an offence have already begun and may result in a confiscation order.
This means restraint orders are often applied for before conviction and sometimes even before charge, giving investigators a powerful advantage.
What Property Does a Restraint Order Cover?
A POCA restraint order can apply to:
All realisable property owned by the defendant, whether described in the order or not.
Property acquired after the order is made.
The term “dealing with property” includes selling, transferring, or withdrawing assets, as well as removing property from England and Wales.
Exceptions to Restraint Orders in POCA
Restraint orders are strict, but the legislation allows certain exceptions to prevent unfair hardship.
Legal Aid Exception
Since 2015, all restraint orders must include a legal aid exception, allowing defendants to pay contributions required under the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This ensures that restraint orders do not prevent a defendant from meeting their obligations to the Legal Aid Agency.
Living and Business Expenses
The Crown Court may allow funds to be released for:
Reasonable living expenses for the defendant and their family.
Business or professional expenses so the defendant can continue working.
Legal Expenses Restriction
The court cannot release funds from restrained assets to pay for defence costs in the criminal case itself if the offence falls within section 41(5). This reflects the policy that criminal defence is dealt with through legal aid.
Varying or Challenging a Restraint Order
Restraint orders are not permanent and can be varied or discharged. Defence solicitors often apply to:
Increase the allowance for living expenses.
Permit access to funds for specific needs.
Challenge the order if it is overly restrictive or no longer justified.
If the order was made before charge, the court must keep the case under review and discharge it if proceedings are not started within a reasonable time.
Practical Impact of Restraint Orders
For defendants, a restraint order can feel like an immediate financial lockdown. Solicitors and counsel should:
Act quickly to secure sufficient allowances for living costs.
Apply for variations where the order causes unnecessary hardship.
Advise clients that breaching a restraint order is a criminal offence.
Understand the interaction with legal aid contributions, which must be permitted under the statutory exception.
FAQs on POCA Restraint Orders
Can you challenge a restraint order?
Yes. Defence teams can apply to vary or discharge the order, particularly if it is disproportionate or proceedings are not progressing.
Does a restraint order cover new assets?
Yes. It can apply to property acquired by the defendant after the order is made.
What happens if a restraint order is breached?
Breaching a restraint order is a criminal offence and can result in further proceedings.
Key Takeaways on POCA Restraint Orders
Restraint orders freeze a defendant’s assets early in proceedings.
They cover all realisable property, including assets acquired after the order.
Statutory exceptions exist for legal aid, living, and business expenses.
Defence practitioners should move quickly to secure fair allowances and challenge unnecessary restrictions.
