Being issued with a restraint order can have a catastrophic effect on businesses, individuals and their families. A restraint order can prevent you from being able to operate your business or have access to reasonable living expenses. It can be a very worrying time that affects how you and your dependents live your lives and run your business.
If you’ve been given a restraint order, you’re likely to be feeling anxious and maybe even suffer from sleepless nights. It’s a challenging experience and a time when working with a competent, experienced solicitor can provide much relief from the anguish and worry.
Understanding the terms and implications of a restraint order is essential; otherwise, you could be facing new charges for contempt of court. If you’ve inadvertently or even purposefully breached your restraint order, it’s vital that you take the guidance of an experienced legal professional as soon as possible.
If a conviction is obtained from the trial, the assets may then be subject to a confiscation order. To facilitate this, the assets need to be secured and prevented from being available for disposal. Disposal could be in the form of spending, giving away, selling or transferring out of the country.
The restraint order means that your bank accounts will be frozen. You will be forbidden to sell or transfer your assets. You will be issued with an amount of cash that you’ll be allowed to withdraw each week for your living expenses.
Being under investigation can be a very stressful time. The effect all of this can have on you and your family makes it all the more imperative that you engage a solicitor who can help.
Have you been given a Restraint Order?
If you or somebody close to you has had a restraint order served, it’s likely that you are under investigation for a serious criminal offence such as money laundering, drug offences or fraud. It’s vital that you now seek specialist legal assistance to protect your interests.
You are probably feeling stressed, confused, worried and concerned about what’s going to happen.
What type of actions are considered when issuing a Restraint Order?
Prosecutors can apply to a crown court to put a restraint order on assets if they can prove that the following circumstances apply:
That a criminal investigation is underway against the individual
This criminal investigation may be related to drug trafficking, fraud, prostitution or money laundering
That it’s possible and reasonable to believe that the offender has gained financial benefits from criminal conduct
Despite it being relatively easy to obtain a restraint order, it may still be possible to achieve a positive outcome by challenging it.
Sometimes there are flaws in the order such as when a prosecutor has misled the court to obtain the order, or there have been substantial delays in the investigation.
There are also occasions when somebody else is under investigation or prosecution, but it’s your assets that are being restrained. In this case, the person may be a member of your family or a business associate.
Who Applies for a Restraint Order?
Typically the crown prosecution service or another agency such as the HMRC will apply to the crown court for a restraint order. It could be applied for at any time during a case, either at the beginning or during the trial, criminal charge or court proceedings.
The person who is applying for the restraint order needs to show evidence that there has been some financial benefit from the criminal activity for the person involved. Being merely suspicious is not enough for a restraint order to be granted by the court.
When is a RestrainT Order imposed?
The most likely time for a restraint order to be applied is when the case has progressed to the point where an arrest has been made or will be made imminently. In some cases, the application of the restraint order may be delayed so as not to alert the suspect of an ongoing investigation.
Once an arrest is made, there is no reason to delay the restraint order, and it’s likely to be served at the same time as the arrest is made. Specifically, the restraint order will typically allow for the subject to use £250 per week for living expenses.
When the restraint order is imposed by the court, it’s to protect the assets from being disposed of or transferred to another party or container.
In effect, the restraint order freezes the assets until the trial has completed. For example, it could be applied to a bank account or an overseas property that may have been acquired from the results of criminal activity.
If the assets or property has been legitimately required and is not the result of criminal activity, it’s essential to take legal advice from an experienced fraud solicitor immediately. Especially if the restraint order involves a fraud, drug offences, prostitution, money laundering or criminal trafficking prosecutions.
What happens when a Restraint Order has been applied?
When a restraint order is imposed, the defendant is typically required to disclose any assets they have. This disclosure needs to include property and it’s location, bank accounts and any overseas assets.
If the assets are held outside of England and Wales, the court may order them to be returned. This may involve the transfer of funds held in offshore bank accounts which will then be frozen. Restraint orders in England and Wales are based on sections 40 – 47 of the Proceeds of Crime Act 2002 which is different from the restraint orders imposed in other parts of the UK.
Subjects of the restraint order may be allowed to receive a living income from restrained assets, in order to pay living expenses. The restraint order will be in effect until cancelled by the court.
It’s critical that you take legal advice from experienced fraud solicitors as soon as possible if you suspect there is a possibility of an application being made for a restraint order. It’s essential to catch any errors or misjudgements early on before they have time to prejudice the outcome of a criminal investigation.
Instruct a legal professional as soon as possible
Whether you have been arrested, or you have had a restraint order imposed on your assets or both; we recommend that you engage a specialist fraud solicitor to support you immediately.
Not doing so will not help your case and nor help you as a person having to endure a very challenging experience. Your dependents may get a better outcome from having an experienced fraud solicitor look at your case and find ways to craft an influential defence and an improvement on the financial details of the restraint order.
What should you do if you are given a restraint order?
Fraud law can be complicated and without knowing the rules inside out and having the experience, it is hard to defend against.
It’s important to engage with a competent fraud solicitor who has experience in the field of restraint orders. They will be able to challenge the restraint order to either get it removed or to have it adjusted so that it is more in your favour.
The first step will be to work through what you need to handle your everyday outgoings and to collect proof of this for the magistrate. Having to battle with the authorities over access to your own assets is frustrating and tiring. It’s vital that the restraint order is handled well so that its longevity and impact is the most positive it can be.
The restraint order will specify exactly what you can deal with and what you cannot touch in your assets.
Our fraud solicitors keep current with changes in the law and are familiar with what makes a strong defence strategy. By engaging one of our team, you will have access to the best defence and advice. We will support you throughout the entire process and ensure that you get the best outcome.
Can the police search my home?
The police can search your home as part of your case if they are seeking evidence. A magistrate or judge can grant a search warrant and the police as law enforcement officers will carry through the search. The search for evidence will extend beyond the physical location of your home and may involve your vehicle, your place of work and also your smartphone, email, text messages, telephone calling history and more.
How Can Stuart Miller Solicitors Help?
Despite there being a very low threshold for obtaining a restraint order, it’s important to look at how to challenge it. For example, some things may have gone wrong in the case such as there having been substantial delays in the investigation. It’s also possible there are other flaws such as a prosecutor misleading the court in order to obtain the order.
We will work with you to identify if there are any areas that we can use to your advantage with regards to challenging it.
We’ll advise you as to whether the order is valid and we’ll also inspect what can be used to successfully challenge it, with a view to an application to dismiss it where appropriate.
We will also help you with:
Proving that you need more than the typical £250 per week to live from so that the court can increase this amount
Alternative methods of funding your legal expenses.
The preparation of your statement with regards to what assets are owned, including advice on what the legal and commercial implications are of this statement.
Our specialist fraud solicitors have deep expertise in restraint orders and provide advice for both pre-charge and post-charge restraint orders. We can provide you with the support and legal guidance you need with regards to living allowance issues, the legality of the order, repatriation clauses and may even be able to get the order discharged. We will also provide you with the protection you need at contempt of court proceedings.
If the living allowances are not enough for the basic needs of your family or enough for you to run your business, we will re-negotiate with the court and the prosecutors for an increase in allowance.
We know how hard it can be to live with the effects of a restraint order. Our fraud solicitors have commercial awareness and are available for you to handle your requests at any time of day or night.
Before disclosing information about yourself, third parties or limited companies, it’s critical that you seek specialist legal advice. You need to be aware of exactly what your obligations are with regards to information disclosure of accounts and financial affairs.
Our experience includes the successful application to both vary and discharge restraint orders. Although the restraint order may be causing chaos in your life, we will guide you in how to lead a life that is normal as possible during the life of a restraint order.
Would you like to discuss your case before instructing us?
If you’d like to have a no obligation chat with us before you instruct us to take your case, then call us today.
We can provide you with a free consultation, and can also represent you at the police station if you’ve been arrested. We can look at securing your legal aid.
Please contact us for a face to face meeting or a telephone call. There is a WhatsApp link on this page if that is your preference.
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