Part 2Confiscation: England and Wales

Restraint orders

40 Conditions for exercise of powers

F1(1)

Section 41 (power to make a restraint order) applies if—

(a)

any of the first to fifth conditions is satisfied (see subsections (2) to (6)), and

(b)

there is a real risk that relevant realisable property held by any person will be dissipated unless the Crown Court exercises the powers conferred by section 41 in relation to that property.

(1A)

For the purposes of this section—

(a)

“relevant realisable property” is realisable property that could be used for the purpose of satisfying any confiscation order that has been or may be made against the defendant;

(b)

a reference to relevant realisable property being “dissipated” is to it ceasing to be available for that purpose.

(1B)

In determining for the purposes of subsection (1)(b) whether there is a real risk of relevant realisable property being dissipated, the court must, in particular, have regard to the following—

(a)

the nature of the relevant realisable property;

(b)

the extent to which any person has taken steps with a view to relevant realisable property being dissipated;

(c)

any circumstances of a person who holds the relevant realisable property that may affect the ease with which they would be able to secure the dissipation of the property;

(d)

any evidence of such a person’s character;

(e)

the nature of the defendant’s criminal conduct;

(f)

the amount by which the defendant is suspected or believed to have benefited from their criminal conduct;

(g)

the stage of the proceedings for an offence against the defendant.

(2)

The first condition is that—

(a)

a criminal investigation has been started in England and Wales with regard to an offence, and

(b)

there F2are reasonable grounds to suspect that the alleged offender has benefited from his criminal conduct.

(3)

The second condition is that—

(a)

proceedings for an offence have been started in England and Wales and not concluded, and

(b)

there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(4)

The third condition is that—

(a)

an application by the prosecutor F3... has been made under section 19, 20, 27 or 28 and not concluded, or the court believes that such an application is to be made, and

(b)

there is reasonable cause to believe that the defendant has benefited from his criminal conduct.

(5)

The fourth condition is that—

(a)

an application by the prosecutor F4... has been made under section 21 and not concluded, or the court believes that such an application is to be made, and

(b)

there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the defendant’s benefit exceeds the relevant amount (as defined in that section).

(6)

The fifth condition is that—

(a)

an application by the prosecutor F5... has been made under section 22 and not concluded, or the court believes that such an application is to be made, and

(b)

there is reasonable cause to believe that the court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount (as defined in that section).

(7)

The second condition is not satisfied if the court believes that—

(a)

there has been undue delay in continuing the proceedings, or

(b)

the prosecutor does not intend to proceed.

(8)

If an application mentioned in the third, fourth or fifth condition has been made the condition is not satisfied if the court believes that—

(a)

there has been undue delay in continuing the application, or

(b)

the prosecutor F6... does not intend to proceed.

(9)

If the first condition is satisfied—

(a)

references in this Part to the defendant are to the alleged offender;

(b)

references in this Part to the prosecutor are to the person the court believes is to have conduct of any proceedings for the offence;

(c)

section 77(9) has effect as if proceedings for the offence had been started against the defendant when the investigation was started.