Restraint Orders, Confiscation and Civil Recovery

Restraint Orders, Confiscation and Civil Recovery

Restraint orders and confiscation

Restraint orders are granted pursuant to the Proceeds of Crime Act 2002. Where an individual is subject to a criminal investigation and the prosecuting authority takes the view that the individual has benefitted from this conduct they will often apply for a court order restraining the individual’s assets, and effectively freezing them, until proceedings are complete.

At the conclusion of proceedings, the restraint order will often be lifted either because the individual has been acquitted or an order for the confiscation of assets has been made. The problem is that both restraint orders and confiscation orders can affect wholly innocent parties such as spouses, children or business associates who jointly own assets with the individual. In the short to medium term restraint orders can lead to significant hardship or losses and, longer term, a confiscation order can lead to the partial or complete loss of one or more assets. In many instances this can lead to the loss of a family home or business.

We act for third parties who have been affected by asserting their rights in the courts and negotiating a release of their assets. In collaboration with specialist counsel we employ relevant case law and the forensic examination of documentation to demonstrate that the affected assets are our client’s property.

Civil Recovery

Civil recovery proceedings are being increasingly used by the National Crime Agency to recover assets obtained through unlawful conduct. These proceedings can be used even when the individual has not been convicted of an offence and are sometimes preferred as it is cheaper to recover assets in this way rather than pursuing a lengthy criminal trial. The difference is that civil recovery proceedings take place in the High Court and are subject to the civil standard of proof and therefore considerably easier for the NCA to succeed. We advise and assist on all stages of the civil recovery process including instructing counsel experienced in this little-known area of law.