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Proceeds of Crime Act 2002

Restraint orders

Sections 189 to 191: Conditions for exercise of powers; Restraint orders; Application, discharge and variation

256.Sections 189 to 191 essentially reflect the provisions made in this Act at sections 40 to 41 for England and Wales. The significant difference is that in Northern Ireland restraint orders will remain within the jurisdiction of the High Court. However the point at which a restraint order may be made is brought forward in the Act to any time after an investigation has been started (at present, although both orders may be made at the investigative stage, it is only possible to do so where charges are in the offing). The only other differences arise from references to Northern Ireland legislation. Section 190 explains the nature and effect of a restraint order. Section 191 lays down who may apply for a restraint order under the Act, and sets out criteria like those in the existing legislation for the variation or discharge of such orders. The Act provides that application may be made by the prosecutor, the Director and by an accredited financial investigator.

Sections 192 & 193: Appeal to Court of Appeal; Appeal to House of Lords

257.The Judicature Act (Northern Ireland) 1978 provides a general right of appeal against an order of the High Court of Northern Ireland and accordingly there is no need for this legislation to provide a specific right of appeal in relation to restraint orders. However, as it has been necessary to create a specific right of appeal in the Act for England and Wales in relation to restraint orders made (or not made) by the Crown Court, it was considered appropriate to make similar provision in Northern Ireland.

Section 194: Seizure

258.Section 194 allows a constable or a customs officer to seize any property subject to a restraint order to prevent its removal from Northern Ireland.

Section 195: Supplementary

259.Section 195 contains ancillary provision relating to restraint orders. It re-enacts provision from existing confiscation legislation. In Northern Ireland there are two distinct procedures for the registration of title concerning land. This is as a result of historical differences concerning the purchase and sale of land in Ireland. Accordingly title is required to be registered either in the Land Registry or the Registry of Deeds. The existing provision on restraint orders has the effect that where the prosecutor obtains a restraint order affecting land, an “inhibition” may be placed on the property at the Land Registry preventing its disposal.

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