Part 2

Confiscation: England and Wales

Restraint orders

Conditions for exercise of powers
40
1
The Crown Court may exercise the powers conferred by section 41 if any of the following conditions is satisfied.
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 is reasonable cause to believe 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 or the Director 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 or the Director 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 or the Director 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 or the Director (as the case may be) 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.