Stuart Miller Solicitors

Restraint Orders - RvNS - Living Allowance Funds

Having been defended by a very senior, high-profile QC in Cardiff in addition to another well known Criminal Defence firm and then having consulted numerous other popular Criminal Law firms advertising their services on the internet, our Fraud Solicitors were engaged to act for one of the former Directors of the Cardiff Sixth Form College facing allegations of Charity Fraud.

The Restraint Order

Given the vast sums of money and assets involved, the prosecution applied for and succeeded in obtaining a Restraint Order which prevented our client from dealing with any of his assets. Not only that, but our client was only authorised to withdraw £250 per week to pay for all his living costs. Whilst this is a wholly insufficient amount to cover costs and the law does allow you to provide evidence of your real and reasonable expenditure to seek a variation to this amount, our client did not wish to make such an application.

The issue our client had frustration with was the authorisation for him to withdraw the living allowance from one named account. This account had modest sums of money and thus, after so many weeks, the balance of the account was insufficient to allow him to continue withdrawing the funds.

Our client had two other accounts which had thousands of pounds available and he made an application to the prosecution to transfer the funds from the two other accounts into the nominated account. This would then allow our client to withdraw the living allowance for the foreseeable future. 

However, his previous Solicitors failed to convince the prosecution to authorise these transfers and faced an argument that the funds are 'suspected' to have derived from the alleged Charity Fraud and therefore they were to remain preserved to satisfy any prospective Confiscation Proceedings if our client was convicted after trial.

Having been instructed to advise the client at this stage, given the lack of funds available to our client for our legal fees, our Fraud Solicitors accepted the case on a Pro-Bono basis and challenged the prosecution's argument.

Cashbox with money in and out of it

Our challenge

Our challenge rested on enshrined Rules of Law which assume an accused person is innocent until he has been proven to be guilty by a Court. Since the case had not even reached the Court, our Fraud Solicitors argued that the prosecution had unlawfully denied his request and concluded his guilt before the Court process had been followed.

Legal research revealed a 2010 case heard at the Court of Appeal, at which the Judgement confirmed:

We cannot help observing that that contention begs two critical questions. One is whether the monies were obtained by fraud, because of course the appellant has yet to stand trial and be convicted, and must at this point be granted the presumption of innocence; and the other question that is begged is whether the amounts being asked for under the section 41.3 rubric of reasonable living expenses were a matter of dissipation. Almost ex hypothesis, monies which are reasonable living expenses, or are allowed by a court as constituting reasonable living expenses, are not monies of mere dissipation. In our judgment, therefore, that was not a very helpful contention, unless of course the Crown was in the position, which it was not yet in, to show that the monies in question were simply a matter of dissipation.

Following consideration of our position and argument being supported by a very strong Court of Appeal decision, the prosecution conceded to our request and the funds were allowed to be transferred from the two additional accounts into the nominated account.

The entire approach and success of this application by our Fraud Solicitors highlights the importance of instructing Expert Fraud Solicitors. Had the application been listed to be heard to Court, the Judge may have taken the view that the matter ought to have been handled outside of Court and Costs under the Civil Procedure Rules could have been awarded against our client as Restraint Orders, fall under the jurisdiction of quasi-civil legislation.

Contact us for a free consultation

If you have a Restraint Order imposed against you, please visit our Contact Us page and use any of the mediums listed to contact our specialist Fraud Solicitors for advice and guidance. We can offer you free initial consultations online, over the telephone or in person.