Restraint Orders (POCCA)
Restraint orders have the effect of freezing property and preserving the assets belonging to the accused, which may be necessary to meet a confiscation order following a conviction. A restraint order can also affect third parties, who are prevented from dealing with a property they hold where it could be used to satisfy a confiscation order.
What is the effect of a restraint order?
The restraint order will prevent the assets of the subject(s) being dissipated by preventing the sale or transfer of those assets and by ‘freezing’ the subject’s bank accounts. Technically the restraint order prohibits each subject from “dealing with” his assets. The restraint order will typically list known bank accounts and assets of the subject and will contain clauses designed to ensure that the order relates to those assets and accounts and to any other assets and accounts which are not shown on the list.
Can a restraint order be challenged?
Yes. The subject of a restraint order can apply to have the order discharged (cancelled) or amended. The application will be heard by a Crown Court judge who will hear submissions both from the applicant for the original order and the subject(s) of that order.
Typically a subject of a restraint order will apply to have the terms of the order relaxed
Typically a subject of a restraint order will apply to have the terms of the order relaxed, for example, to allow a higher level of living expenses or to allow monies to be used to pay specific expenses (such as mortgage payments) or to remove one or more of the subjects from the scope of the order.
In some circumstances, it may be appropriate for a subject to apply to the court to have the order limited so as to cover only specified assets.
• Enforcement of a Confiscation Order
Whenever a Confiscation Order is made, a period is set within which this should be paid, known as Time To Pay or TTP. Often six months is the initial period allowed. However, it is possible to apply for an extension to allow up to a maximum of 12months to pay an Order.
Also, whenever a Confiscation Order is made a ‘sentence in default’ is applied – this means that should you fail to satisfy your Confiscation Order in full a custodial sentence is imposed.
The standard default sentences are set out below (s139 Powers of Criminal Courts (Sentencing) Act 2000:
In cases where you are unable to pay the Confiscation Order, in full, it may be possible for you to apply for, what is commonly known as, a ‘Certificate of Inadequacy’. However, where such an application is rejected by the Court, or where you are unwilling to pay your Order the Prosecution and/or the Court’s Confiscation Unit will ask the Court to impose the default sentence period, this is known as enforcement.
Service of the default period does not expunge the Order – when you leave prison you will still need to pay your Confiscation Order. You should remember that once TTP has concluded interest starts to accrue, this is a very high rate of interest set by the Court (not the current Bank of England base rate for example). It is possible, albeit rare, for the Prosecution to complain to the Court of the unpaid interest and ask for another default sentence to be imposed.
Enforcement hearings are heard at the Magistrates’ Court. The Magistrates do not have the power to reduce the Confiscation Order, nor the default sentence. This is unless any monies have been paid off the Confiscation Order, in which case the sentences is reduced on a pro rata basis.
If you, or someone you know have been made subject to a confiscation order, contact us immediately. We at Spartans Law understand that such orders can have a detrimental impact on your daily life and therefore we will leave no corner unturned to ensure you receive the best outcome possible. We have great wealth of experience dealing with such matters. Contact Us now for more information.