Proceeds
of Crime Act 2002 – rules applicable only to restraint proceedings
59.1
Application for restraint order
(1)
This rule applies where the prosecutor, the Director or an accredited
financial investigator makes an application for a restraint order under
section 42 of the Proceeds of Crime Act 2002 ((1)).
(2)
The application may be made without notice.
(3)
The application must be in writing and supported by a witness statement
which must—
(a)
give the grounds for the application;
(b) to the best of the witness’s ability, give full details
of the realisable property in respect of which the applicant is seeking
the order and specify the person holding that realisable property;
(c) give the grounds for, and full details of, any application for
an ancillary order under section 41(7) of the 2002 Act for the purposes
of ensuring that the restraint order is effective; and
(d) where the application is made by an accredited financial investigator,
include a statement that he has been authorised to make the application
under section 68 of the 2002 Act.
Formerly
rule 16 of the Crown Court (Confiscation, Restraint and Receivership)
Rules 2003 ( (2)).
59.2
Restraint orders
(1) The Crown Court may make a restraint order subject to exceptions,
including, but not limited to, exceptions for reasonable living expenses
and reasonable legal expenses, and for the purpose of enabling any person
to carry on any trade, business or occupation.
(2)
But the Crown Court must not make an exception for legal expenses where
this is prohibited by section 41(4) of the Proceeds of Crime Act 2002.
(3)
An exception to a restraint order may be made subject to conditions.
(4)
The Crown Court must not require the applicant for a restraint order
to give any undertaking relating to damages sustained as a result of
the restraint order by a person who is prohibited from dealing with
realisable property by the restraint order.
(5)
The Crown Court may require the applicant for a restraint order to give
an undertaking to pay the reasonable expenses of any person, other than
a person who is prohibited from dealing with realisable property by
the restraint order, which are incurred in complying with the restraint
order.
(6)
A restraint order must include a statement that disobedience of the
order, either by a person to whom the order is addressed, or by another
person, may be contempt of court and the order must include details
of the possible consequences of being held in contempt of court.
(7)
Unless the Crown Court directs otherwise, a restraint order made without
notice has effect until the court makes an order varying or discharging
the restraint order.
(8)
The applicant for a restraint order must—
(a)
serve copies of the restraint order and of the witness statement made
in support of the application on the defendant and any person who
is prohibited from dealing with realisable property by the restraint
order; and
(b) notify any person whom the applicant knows to be affected by the
restraint order of the terms of the restraint order.
Formerly
rule 17 of the Crown Court (Confiscation, Restraint and Receivership)
Rules 2003.
59.3
Application for discharge or variation of restraint order by person
affected by order
(1)
This rule applies where a person affected by a restraint order makes
an application to the Crown Court under section 42(3) of the Proceeds
of Crime Act 2002 to discharge or vary the restraint order or any ancillary
order made under section 41(7) of the Act.
(2)
The application must be in writing and may be supported by a witness
statement.
(3)
The application and any witness statement must be lodged with the Crown
Court.
(4)
The application and any witness statement must be served on the person
who applied for the restraint order and any person who is prohibited
from dealing with realisable property by the restraint order (if he
is not the person making the application) at least two days before the
date fixed by the court for hearing the application, unless the Crown
Court specifies a shorter period.
Formerly
rule 18 of the Crown Court (Confiscation, Restraint and Receivership)
Rules 2003.
59.4
Application for variation of restraint order by the person who applied
for the order
(1)
This rule applies where the applicant for a restraint order makes an
application under section 42(3) of the Proceeds of Crime Act 2002 to
the Crown Court to vary the restraint order or any ancillary order made
under section 41(7) of the 2002 Act (including where the court has already
made a restraint order and the applicant is seeking to vary the order
in order to restrain further realisable property).
(2)
The application may be made without notice if the application is urgent
or if there are reasonable grounds for believing that giving notice
would cause the dissipation of realisable property which is the subject
of the application.
(3)
The application must be in writing and must be supported by a witness
statement which must—
(a)
give the grounds for the application;
(b) where the application is for the inclusion of further realisable
property in the order give full details, to the best of the witness’s
ability, of the realisable property in respect of which the applicant
is seeking the order and specify the person holding that realisable
property; and
(c) where the application is made by an accredited financial investigator,
include a statement that he has been authorised to make the application
under section 68 of the 2002 Act.
(4) The application and witness statement must be lodged with the Crown
Court.
(5)
Except where, under paragraph (2), notice of the application is not
required to be served, the application and witness statement must be
served on any person who is prohibited from dealing with realisable
property by the restraint order at least 2 days before the date fixed
by the court for hearing the application, unless the Crown Court specifies
a shorter period.
(6)
If the court makes an order for the variation of a restraint order,
the applicant must serve copies of the order and of the witness statement
made in support of the application on—
(a)
the defendant;
(b) any person who is prohibited from dealing with realisable property
by the restraint order (whether before or after the variation); and
(c) any other person whom the applicant knows to be affected by the
order.
Formerly
rule 19 of the Crown Court (Confiscation, Restraint and Receivership)
Rules 2003.
59.5
Application for discharge of a restraint order by the person who applied
for the order
(1)
This rule applies where the applicant for a restraint order makes an
application under section 42(3) of the Proceeds of Crime Act 2002 to
discharge the order or any ancillary order made under section 41(7)
of the 2002 Act.
(2)
The application may be made without notice.
(3)
The application must be in writing and must state the grounds for the
application.
(4)
If the court makes an order for the discharge of a restraint order,
the applicant must serve copies of the order on—
(a)
the defendant;
(b) any person who is prohibited from dealing with realisable property
by the restraint order (whether before or after the discharge); and
(c) any other person whom the applicant knows to be affected by the
order.
Formerly
rule 20 of the Crown Court (Confiscation, Restraint and Receivership)
Rules 2003.
