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A restraint order is an order made by the Crown Court the Proceeds of Crime Act 2002 (POCA 2002), s 41 and such an order prohibits any person from dealing with any realisable property which he holds.
A restraint order may be made if any of the five conditions set out in POCA 2002, s 40 is satisfied. These include ongoing criminal investigations, criminal proceedings, and applications under the POCA 2002 by the prosecution in cases where there is reasonable cause to believe that alleged offender or defendant has benefitted from his criminal conduct.
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Considerations when dealing with litigants in person—checklist Issue Comment Link to Lexis+® UK guidance/external links To what extent is a represented party required to assist a litigant in person? A legal representative’s paramount duty is to the court and to the administration of justice. Subject to that, the legal representative’s duty is to the client. Practice Note: Litigants in person—general considerations, resources and regulators' guidanceThe Law Society—Litigants in person: guidelines for lawyers, paras 7–9Legal Services Act 2007, s 1(3) A legal representative must not abuse their position by taking unfair advantage of a litigant in person but there is no obligation to help a litigant in person run their case or to take any action on a litigant in person’s behalf. Practice Note: Litigants in person—general considerations, resources and regulators' guidanceSRA Code of Conduct for Solicitors, RELs and RFLs, para 1.2SRA Code of Conduct for Firms, para 1.2The Law Society—Litigants in person: guidelines for lawyers, para 18 When exercising its powers of case management, the court must consider whether...
Considerations and next steps for victims of fraud—checklist This Checklist is designed to assist individuals and companies who suspect they have been a victim of fraud. It considers the immediate steps they should take to gather and preserve evidence, obtain legal advice, mitigate and reduce risk and obtain emergency or urgent relief (such as freezing orders and insurance cover), including whether it is necessary to report a suspected fraud to the police and how to do so using the Action Fraud service. It also addresses the choice between issuing civil and criminal proceedings for fraud and explains the possibility of running a civil fraud claim in parallel with a criminal prosecution (private or public). This Checklist should be read in conjunction with the Practice Notes: • Starting a civil fraud claim—a practical guide • Civil fraud—heads of claim • Civil fraud—frequently asked questions (FAQ) • Commencing criminal proceedings—applying for the issue of a summons • Fraud—civil claim and private criminal prosecution compared For full guidance on fraud offence under criminal...
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What is a restraint order?A restraint order is a preventive measure imposed in support of any confiscation order that may be or has been made. It is an instrument of statute, provided for in section 40 of the Proceeds of Crime Act 2002 (POCA 2002).POCA 2002, s 40 (in providing for restraint orders) gives an investigator or prosecutor the pre-emptive right to restrain a person's assets, where that person is under suspicion/investigation in respect of an acquisitive offence, and even before that person has been arrested for the suspected offence. A restraint order under POCA 2002 has the effect of freezing specified and yet to be identified property in order to preserve the assets considered necessary to meet a confiscation order following prosecution and conviction (see below: Legislative steer under POCA 2002, s 69). Such an order prohibits any specified person from dealing with the property in question, including third parties who hold property in which a suspect or defendant is considered to have an interest. A restraint order affects...
Application to discharge a restraint orderAny person affected by a restraint order, as well as the person who applied for it, may apply for its discharge. This includes defendants, associated and third parties, and receivers. The suspect or defendant may, for example, seek to discharge the order where:•there is insufficient evidence to connect the suspect with the offence•there is no property held by the suspect or defendant•there is no risk of dissipation of assetsAn application to discharge the restraint order can also be made by a defendant in the circumstances that no reasonable belief exists that the defendant has benefited from criminal conduct. An application may also be made on procedural grounds, eg where the applicant, in an ex parte process, has failed to discharge their duty of full and frank disclosure (or duty of candour). When making the application for a restraint order, the applicant must be astute to wear their ‘defence hat’ when making such applications as if the defence were present. See further, Practice Note: Restraint orders—Applying...
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Who is an accredited financial investigator and what powers can they exercise under the Proceeds of Crime Act 2002 (POCA 2002)? Who is an accredited financial investigator? An accredited financial investigator (AFI) for the purposes of Proceeds of Crime Act 2002 (POCA 2002) is a financial investigator who is trained and accredited pursuant to POCA 2002, s 3. In addition, POCA 2002, s 453 empowers the Secretary of State, through secondary legislation, to designate an investigator who falls within a specified description as an AFI. The purpose of this order-making power is to enable the Secretary of State to limit the use of restraint and investigation powers to those financial investigators who are employed or engaged by law enforcement authorities or are employed or engaged in a law enforcement capacity by Government departments. For further information, see the Explanatory Notes to POCA 2002, s 453 at Part 12: Miscellaneous and General: UK Acts 2002: Explanatory Notes of Primary Legislation [643]. POCAÂ 2002 (References to Financial Investigators) (England...
How do I obtain copies of statements of case filed before 2 October 2006? Do you have any precedents relevant to a claim seeking the release of funds from a bank? A non-party can obtain a copy of a statement of case filed before 2 October 2006 if the court gives permission. The non-party must accordingly make an application under CPR 23 identifying the document, or class of document sought and the grounds relied on. The application can be made without notice, but the court can direct that a notice is given to any person affected by the decision. For an example of how the courts might approach an application for a copy of a statement of case filed before 2 October 2006, see News Analysis: Patent court considers access documents on the court file when permission is required (News, 16 December 2010). For more general information on applications under CPR 23, see Practice Note: How to make an application for a court order (CPR 23),...
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Law360, London: The first unexplained wealth order (UWO) secured by the Serious Fraud Office (SFO), against the former wife of a convicted solicitor, suggests that the agency is thinking creatively about how to use the dirty-money tools at its disposal, although lawyers wonder whether it will be a durable strategy.
Dispute Resolution analysis: The minutes of the CPR Committee (CPRC) meeting of 4 October 2024 (conducted in a hybrid format at The Rolls Building (Royal Courts of Justice) and via video conference) cover a number of issues including proposed amendments to the Pre-Action Protocol for Personal Injury Claims below the Small Claims Limit in Road Traffic Accidents and CPR PD 27B. Amendments to CPR 25 (interim remedies and security for costs), CPR 42 (change of solicitor), CPR 46 (costs orders in favour of or against non-parties) and CPR PD 52E (appeals by way of case stated) were also considered. Discussion ensued on the small claims paper determination pilot scheme, guidance on emailing the court and costs budgeting light.
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