Restraint and Confiscation Orders in England and Wales
min readThe Proceeds of Crime Act 2002 (POCA) is the centrepiece for recovering assets gained through criminal conduct in England and Wales. POCA enables (amongst other things) law enforcement to confiscate, freeze and recover the proceeds of crime. Among the most powerful tools in the POCA armoury are restraint orders and confiscation orders. This article examines the restraint and confiscation regime in the context of criminal investigations and proceedings in England and Wales.
What are Restraint Orders?
Restraint orders are interim asset-freezing measures designed to preserve tainted property (i.e. assets that are the proceeds of crime), so that those assets remain available to satisfy any future confiscation order following conviction (i.e. if a defendant is found guilty of a criminal offence). The rationale is to mitigate the risk that property may be dissipated or transferred before conviction. A restraint order prohibits any specified person from dealing with any realisable property obtained through or in connection with the offence, whether or not the property is held by the defendant. The concept of “dealing with" property is broadly construed and includes in respect of the property: i) removing from the jurisdiction, ii) disposing of, iii) transferring, iv) charging, and/or v) diminishing the value of the property. Restraint orders can include virtually any realisable property, although typical types of assets include: i) bank accounts, ii) cash, iii) property, iv) land, v) business assets, vi) vehicles and vii) high-value items.
Restraint orders can be sought by prosecuting authorities or accredited financial investigators (typically the Crown Prosecution Service or Serious Fraud Office) (as provided for principally by sections 40 to 47 of POCA) and are granted by the Crown Court (part of the criminal courts in England and Wales). An application may be made at any stage of proceedings, including before charges have been laid, provided a criminal investigation is underway.
An application for a restraint order is made by prosecuting authorities without notice to the defendant. In practice, that means the first indication to a defendant is typically service of the restraint order itself, or the discovery that access to bank accounts or other assets has been restricted.
Section 40 of POCA sets out five conditions, any of which, if satisfied, empowers the court to make a restraint order:
Condition 1: The pre-charge investigation stage
This is where a criminal investigation has been started in England and Wales relating to an offence, and there are reasonable grounds to suspect that the alleged offender has benefited from their criminal conduct. The threshold was previously "reasonable cause to believe" (which remains the case for conditions 2 – 5 below) but was lowered by the Serious Crime Act 2015 (SCA 2015). This lower threshold means that only a “suspicion” of the defendant having benefited from criminal conduct is required; and the SCA 2015 commentary explains that the term “suspicion” denotes a degree of satisfaction, not amounting to belief, but at least extending beyond speculation. This makes it easier to obtain a freeze at an early stage in circumstances where the investigation is on-going.
Condition 2: The post-charge, pre-conviction stage
This is where criminal proceedings for an offence have started in England and Wales but not concluded, and there is reasonable cause to believe that the defendant has benefited from their criminal conduct. The threshold for this condition is “reasonable cause to believe” that the defendant has benefited from criminal conduct.
Condition 3: The confiscation application stage
This is where an application by the prosecutor has been made under section 19, 20, 27 or 28 of POCA (which relate to the reconsideration of benefit and confiscation following absconding) in respect of the defendant that i) has not yet concluded or the court believes the application will be made, and ii) there is “reasonable cause to believe” that the defendant has benefited from his criminal conduct.
Condition 4: The post-confiscation order stage
This is where an application by the prosecutor has been made under section 21 of POCA (which concerns the reconsideration of benefit after a confiscation order has already been made) that i) has not concluded or the court believes an application will be made, and ii) there is “reasonable cause to believe” that the court will decide (under section 21 of POCA) that the amount found under the new calculation of the defendant’s benefit exceeds the ‘recoverable amount’ as most recently assessed by the court (section 21(13)). The calculation for recoverable amount is “an amount equal to the defendant’s benefit from the conduct concerned” (section 7(1)).
Condition 5: The reconsideration stage
This is where an application has been made by the prosecutor under section 22 of POCA that: i) has not concluded, or the court believes an application will be made, and ii) there is “reasonable cause to believe” that the court will decide (under section 22 of POCA) that the amount found under the new calculation of the ‘available amount’ exceeds the ‘relevant amount’. Section 22 concerns the reconsideration of the ‘available amount’ after a confiscation order has already been made, allowing the court to increase the ‘recoverable amount’ where additional assets come to light. As above, the “ recoverable amount’ is “an amount equal to the defendant’s benefit from the conduct concerned.”
However, none of the second to fifth conditions will be satisfied if the court believes that there has been undue delay in continuing the relevant proceedings or application, or that the prosecutor does not intend to proceed with the investigation and/or prosecution.
If a restraint order is made there are exceptions applied to allow the defendant to make certain payments. A restraint order must be made subject to an exception to enable relevant legal aid payments to be made (e.g. contributions towards the cost of their legal aid). The court also has discretion under section 41 of POCA to make further exceptions such as for: i) reasonable living expenses, ii) reasonable legal expenses, provided these are not for the criminal proceedings that gave rise to the restraint order (section 41(4)) and/or iii) enabling the defendant to carry on any trade, business, or occupation.
Further, a restraint order should only be made if there is a “real risk” of dissipation (as established by case law) for example the underlying charges involve dishonesty.
Breach of a restraint order constitutes contempt of court and may additionally be prosecuted as perverting the course of justice.
What are Confiscation Orders?
A confiscation order is made following conviction of a criminal offence (i.e. if the defendant is found guilty) where the defendant is found to have benefitted from the criminal conduct. The confiscation serves to deprive the defendant of that benefit. Before making the order, the court must determine three key questions:
- Whether the defendant has a “criminal lifestyle” within the meaning of POCA. Pursuant to section 75 of POCA, a defendant has a “criminal lifestyle” if the offence satisfies one of three tests: i) it falls within a list of serious offences (specified in Schedule 2 of POCA), such as drug trafficking, money laundering, arms trafficking, directing terrorism, or blackmail; ii) it constitutes conduct forming part of a course of criminal activity; or iii) it is an offence committed over a period of at least six months and the defendant has benefited from the conduct which constitutes the offence. Where a “criminal lifestyle” is established, the court must make certain rebuttable statutory assumptions under section 10 of POCA. One of the rebuttable assumptions is that any property transferred to the defendant in the prior 6 years before the day proceedings were started was obtained from criminal conduct.
- Whether the defendant has benefited from relevant criminal conduct, meaning the defendant obtained property as a result or in connection with it. The benefit amount is the total value of property or pecuniary advantages obtained by the defendant.
- What the recoverable amount is. The recoverable amount is the lower of the benefit figure that the defendant obtained and the amount currently available to the defendant. The starting point is that the court will order the defendant to pay a sum equal to the benefit the defendant obtained, unless the defendant can demonstrate that the available amount is lower (section 7 POCA).
The confiscation powers under POCA are intended to deprive a defendant of the pecuniary proceeds of their crime rather than add punishment.
The full amount ordered must, in principle, be paid by the defendant on the day on which the order is made. However, the court may allow payment within specified periods not exceeding three months. The defendant may apply for an extension which the court may grant if it is satisfied that all reasonable efforts have been made to pay within the period. If the defendant defaults on payment, they may be committed to a term of imprisonment, with the maximum term increasing depending on the amount outstanding.
Purpose of Restraint and Confiscation Orders
Restraint and confiscation orders serve distinct but complementary functions within the POCA regime.
As discussed above, the purpose of a restraint order is preservative, to ensure that assets remain available to satisfy any confiscation order. As also noted, a confiscation order is not intended as a punishment, nor is it a compensatory remedy for victims (though victims may benefit indirectly), but rather a mechanism to recover proceeds of crime and ensure that financial benefit is not derived/retained by the defendant. The SCA 2015 introduced a new section 6(5) to POCA which requires that a confiscation order must not be disproportionate in the circumstances. This was to ensure that confiscation orders are compatible with the European Convention of Human Rights and further shows that their aim is to deprive proceeds of crime rather than add an extra layer of punishment. The regime also serves a broader deterrent to discourage such conduct.
The Economic Crime and Corporate Transparency Act 2023 (ECCTA) extended the regime's reach to address (amongst other things) the growing use of crypto assets in illicit transactions. Although crypto assets already fell within POCA's definition of "property", ECCTA introduced specific powers relating to the search, detention and conversion of such assets, including the ability to transfer crypto into law enforcement wallets and seize offline wallets or related devices.
Implications of Restraint and Confiscation Orders
The practical implications of restraint and confiscation orders can be severe.
Once a restraint order is in place, the defendant is generally unable to deal with the restrained property. Defendants may be unable to access funds for ordinary activities or to conduct business. Restraint orders can remain in force for several years before confiscation proceedings conclude, and even where the individual is ultimately acquitted. The SCA 2015 requires the applicant (the prosecuting authority) to report on the progress of the investigation at specified intervals and obliges the court to discharge orders made pursuant to condition 1 (see above) if proceedings are not commenced within a reasonable time.
The orders can also have significant consequences for third parties. Spouses, partners, business associates or creditors can find their own assets, such as bank accounts, property or vehicles, frozen or unrecoverable. This can lead to business disruption, loss of access to funds and reputational damage. POCA provides some safeguards in this regard in section 10A, which enables the court to establish beneficial ownership where third parties have made independent financial contributions, thereby recovering their interest in the property. A defendant or affected person also has the right to challenge or seek to vary an order under section 42(3) of POCA. Although initial restraint applications are made without notice, any person affected by a restraint order may apply to vary or discharge it under section 42(3) of POCA.
The fact that initial restraint applications are made without notice can mean there is a risk that material facts are omitted or inadequately presented (from the defendant’s perspective) to the court when the order was granted, despite the application (prosecuting authority) being under a duty of full and frank disclosure.
The Crime and Policing Act 2025
The Crime and Policing Act 2025 received Royal Assent on 29 April 2026 and is coming into force in stages. The Act introduces an overhaul of the POCA confiscation and restraint regimes. The reforms are centred on a new statutory “principal objective” to deprive the defendant of the benefit of their criminal conduct and involves faster confiscation proceedings and stronger enforcement powers. The provisions relevant to the restraint and confiscation order regime do not come into force automatically on Royal Assent and, at the time of writing, no commencement date has been fixed for these sections (and for reforms of this complexity a lead-in period would be typical).
Conclusion
The restraint and confiscation order regime under POCA confers extensive powers on the court and prosecuting authorities to freeze and recover assets connected with criminal conduct. For those subject to, or potentially facing, such proceedings, the consequences can be far-reaching and immediate, from the freezing of bank accounts and property to restrictions on the conduct of business. Early engagement with specialist legal advisers is important, including as to whether to challenge the basis for a restraint order, negotiate reasonable exceptions for living and legal expenses, or contest the benefit figure and recoverable amount at the confiscation stage.
Our Expertise
Our Financial Crime team has extensive experience advising clients who are subject to, or at risk of, restraint and confiscation proceedings under POCA. Our practice covers the full lifecycle of POCA proceedings, and we have experience acting in high-value and multi-jurisdictional matters, including cases involving complex corporate structures. If you or your business is affected by a restraint or confiscation order, or if you wish to understand how these powers might affect your position, please get in touch here or with your usual Charles Russell Speechlys contact if you would like to get in touch.
