Enforcement: Proceeds Of Crime Guidance

Updated 17/04/08

Principle
Guidance
Procedure
- Cases with the prosecutor holding lead responsibility
- Cases where Magistrates Court holds lead responsibility
Useful Sources
- National Best Practice Guide to Confiscation Order Enforcement
Annex - Draft restraint order

Principle

The purpose of a confiscation order, namely to deprive the defendant of the proceeds of his or her crime, is only fulfilled once the order is paid. A confiscation order is a debt owed by the defendant to the Crown. The defendant can choose to pay the order voluntarily, but if he or she fails to pay the order, compulsory enforcement action can be taken.

All confiscation order payments, however enforced, go to the Treasury through the enforcing Magistrates' Court.

It is intended that CPS will play an active role in the enforcement of confiscation orders by making applications to the Crown Court for the appointment of enforcement receivers and/or by requesting the listing of applications at the Magistrates' Court to activate the default sentence of imprisonment, if the defendant fails to pay the confiscation order.

Guidance

When is payment due?

The amount to be paid under a confiscation order must be paid on the date of the making of the confiscation order (section 11 Proceeds of Crime Act 2002 (POCA)). If the defendant shows that he or she needs time to pay the confiscation order, the court may extend this time for payment for up to six months. If within the six months the defendant applies to the court for a further extension of this time and the court finds that there are exceptional circumstances, it can extend the time for a further six months. Before granting either an application for an extension of time or an application for a further extension of time, the Court must give the prosecutor an opportunity to make representations.

What sum is due?

Interest is payable on the unpaid amount of the confiscation order, to encourage prompt payment. If the confiscation order is not paid by the due date, the amount of interest is added to the confiscation order and is treated as if it were part of the order (section 12 POCA).

The rate of interest is that specified in section 17 of the Judgments Act 1838 and is currently 8%.

Interest is not payable if an application to extend time to pay has been made by the defendant within twelve months of the making of the confiscation order and has not been determined by the court.

Who may enforce a confiscation order?

The Director of ARA or the Magistrates' Court is responsible for the enforcement of a confiscation order. In cases where the Director of ARA is not responsible for enforcing the order, the prosecutor has an important role in enforcement by applying to the Crown Court for the appointment of an enforcement receiver to realise the defendant's assets, and/or to the Magistrates' Court for an enforcement hearing, so that the court can activate the sentence imposed in default of payment of the confiscation order.

The Director of ARA

Section 34 of POCA requires the court to appoint the Director as the enforcement authority for a confiscation order if:

the Court made a confiscation order after being asked to do so by the Director;
the Court made a confiscation order after being asked by the Director to reconsider the case where no confiscation order was made;
the Court of Appeal, or the Crown Court at the direction of the House of Lords, made a confiscation order as the result of an appeal by the Director;
before the Court made the confiscation order, the Director applied to the Court to appoint him as the enforcement authority for the order.

A protocol will be agreed with ARA as to the types of cases, where ARA may be willing to act as the enforcement authority. The guiding factor will be one of complexity. It is anticipated that cases, which involve the realisation of substantial assets abroad would fall within this category.

The Magistrates' Court

The Magistrates' Court has the ultimate responsibility of enforcing a confiscation order and it will enforce the order as if it were a fine. Nevertheless, the Magistrates' Court is not the preferred enforcer in cases involving the realisation of assets outside the jurisdiction, real property, or enforcing against property held in the names of third parties.

Magistrates' power to obtain monies from banks and building societies

POCA makes specific provision for cash held by banks and building societies, in order to ensure that effective enforcement of confiscation orders occurs quickly.

A Magistrates' Court may order a bank or building society to pay the money to the Justices' Chief Executive towards satisfaction of the confiscation order if any of the following conditions occurs:

money is held by a defendant in an account which he holds with a bank or building society; or
money has been seized by a constable under section 19 of PACE 1984 and is held by a police force in an account which it holds with a bank or building society; or
money has been seized by a customs officer under section 19 of PACE 1984 and is held by the Commissioners of Customs and Excise in an account which they hold with a bank or building society; and
the money has been restrained by a restraint order; and
a confiscation order has been made against the defendant; and
the Director has not been appointed as the enforcement authority for the confiscation order; and
an enforcement receiver has not been appointed in relation to the money; and
the period granted by the Court for payment of the confiscation order has expired.

If the bank or building society fails to comply with such an order, the Magistrates' Court may order it to pay an amount not exceeding £5000 and this money will be treated as payment towards the confiscation order (see section 67 POCA).

The Prosecutor

As the Director of ARA is only likely to be appointed in complex cases, perhaps involving foreign properties, and as the Magistrates' Court is best equipped to recover sums of money from bank accounts or other straight forward cases, it will fall upon the prosecutor to enforce cases involving the realisation of the defendant's assets. Fortunately, this task may be easily achieved by the prosecutor applying to the Crown Court for the appointment of an enforcement receiver (see below).

The prosecutor, rather than the Magistrates' Court, should normally take primary responsibility in cases in which there is an existing restraint order and/or where the realisable assets include:

Assets out of the jurisdiction;
Real property; or
Assets held in the names of third parties (including limited companies).

Note - This is an administrative arrangement rather than a legal requirement.

The decision to appoint an enforcement receiver

The prosecutor should consider making an application to the Crown Court for the appointment of an enforcement receiver wherever the realisable assets include assets out of the jurisdiction, real property or assets held by and/or in the names of third parties (including limited companies).

Another factor to consider is the cost of appointing an enforcement receiver. The CPS give the receiver an indemnity to make good any shortfall of the receiver's costs after the defendant's assets have been realised. Clearly, if the costs of hiring the receiver are likely to be in excess of the amount that is likely to be realised, a receiver should not be appointed. This may be a particularly pertinent issue in cases where there has been no restraint order, as some assets may have been dissipated prior to the appointment of the receiver.

Although the application to court is made by the prosecutor, once appointed, the receiver is an officer of the court and will be separately represented on future hearings.

See below for the procedure relating to the appointment of the enforcement receiver.

The role of third parties

Third parties have no right to be heard on a criminal confiscation hearing. The Crown Court will determine the defendant's interest in property held by third parties, whether this property is held jointly, is a tainted gift, or is property otherwise held in the names of third parties. The Court at the confiscation stage is only tasked with determining the amount of the defendant's free property, in order to calculate the recoverable or available amount in which to make an order for a sum of money and is not concerned with the property itself. Any determinations as to the defendant's interest at that stage cannot be binding on third parties, as they are not parties to the proceedings (see Re Norris [2001] UKHL 34).

Third party assets may be restrained and/or at the enforcement stage, action may be taken by a receiver to realise property, in which third parties may be claiming an interest. Third parties are entitled to have their claims determined by a court, although not as a part of the confiscation proceedings. Unlike previous legislation, POCA provides that the appropriate court will be the Crown Court.

Resolution of third party interests

The court may order anyone who has possession of realisable property to give it to the receiver and may order anyone who holds an interest in realisable property to pay the receiver the amount of any interest held in the property by the defendant or the recipient of a tainted gift. Once that payment is made, the interest of the defendant or the recipient of the tainted gift in the property is extinguished. Before such orders are made, the Crown Court (Confiscation, Restraint and receivership) Rules 2003 (SI 2003 No. 421) require that the defendant or the recipient of the gift must be given notice of the hearing and will, therefore, be able to make representations to the court.

The defendant, or the recipient of a tainted gift, may apply to the court for an order that any property that cannot be replaced should not be sold. Such an order made under section 69(4) POCA may be revoked or varied.

Section 62(3) POCA provides that any person affected by the action or proposed action of a receiver may apply to the Crown Court for an order giving directions as to the exercise of the receivership powers. The court may make such order as it believes appropriate.

Any person affected by an order appointing or giving powers to a receiver may also apply to the Crown Court to vary or discharge the order by virtue of section 63(1)(c) POCA.

Section 69(3) POCA provides that in exercising the powers given to the court and/or to a receiver, the powers must be exercised with a view to allowing a person other than the defendant or a recipient of a tainted gift to retain or recover the value of any interest held by him;

In the case of realisable property held by a recipient of a tainted gift, the powers must be exercised with a view to realising no more than the value for the time being of the gift;

In a case where a confiscation order has not been made against the defendant, property must not be sold if the court so orders under subsection (4).

The matrimonial home

A confiscation order is an order to pay a sum of money and may be enforced against any property held by the defendant, even if some of that property was legally obtained. Accordingly, the matrimonial home may be seized and confiscated, if the defendant fails to pay. Subject to the operation of section 31 of the Family Law Act 1996, this may result in the eviction of other family members.

The effect of section 69(3)(a) POCA is to reverse the unreported case of Customs and Excise v A (July 22 2002, CA); a case in which it was held that a property adjustment order could be made in family proceedings notwithstanding the provisions of the Drug Trafficking Act 1994.

The court may not, however, order the realisation of any share in the matrimonial home owned by the spouse or partner, unless it can be shown that the share was a tainted gift (see R v Buckman [1997] 1 Cr.App.R.(S.) 325).

Inadequacy of available amount

If the defendant or enforcement receiver applies to the Crown Court to vary the order the court must calculate the available amount. If it finds that the available amount is inadequate to pay the amount outstanding under the confiscation order the court may substitute the amount that it thinks just (section 23 POCA).

The court must disregard any inadequacy that it believes is attributable in whole or in part to anything done by the defendant to preserve property held by the recipient of a tainted gift in order to prevent it from being used to pay the confiscation order.

Discharging the confiscation order

In exceptional circumstances if less than £1,000 remains to be paid under the confiscation order and a Justices' Chief Executive applies to the Court for the discharge of the order, the Court may consider whether the available amount is inadequate.

If the Court finds the available amount to be inadequate to meet the amount remaining to be paid, and if this is due to fluctuations of currency exchange rates for foreign currency or due to any other reason specified by the Secretary of State, the Court may discharge the confiscation order.

If only a small amount remains outstanding (£50.00 or less) and a Justices Chief Executive applies to the Court for the discharge of the order, by virtue of section 25 POCA, the Court may discharge the confiscation order.

Enforcement abroad

Realisable property is often held abroad. If a confiscation order has not yet been made, but any one of the five conditions for the granting of a restraint order have been satisfied and the prosecutor or the Director believes that realisable property is situated outside the United Kingdom, the prosecutor or the Director may send a request for assistance to another country via the Secretary of State to prohibit any person from dealing with realisable property and/or to sell realisable property and apply the proceeds in accordance with the law of that country (see section 74 POCA).

If the property is sold by the requested country, the money raised from that sale remains in the requested country, but the remaining balance of the amount ordered to be confiscated will be reduced by the amount raised by the sale.

Procedure

The Crown Court will send the Notice of the Confiscation Order, Confiscation Certificate and Schedule(s) of Assets to the relevant prosecutor and the defence solicitors within seven days of the confiscation order being made.

The prosecutor should then contact the Justices Chief Executive for the Magistrates' Court within fourteen days of receipt of Orders and Schedule(s) from the Crown Court to inform him/her whether CPS intends to take the primary enforcement responsibility, or conversely whether there is an existing restraint order and that the CPS intends to take no enforcement action. The reasons for this should be detailed in a letter.

The Justices Chief Executive for the Magistrates' Courts will contact the prosecutor in cases that he/she believes that the prosecutor should take primary responsibility, if the prosecutor has not already made contact.

Cases with the prosecutor holding lead responsibility

Determine whether an appeal has been lodged

Contact should be made with the Court of Appeal to confirm whether or not an appeal has been lodged. If an appeal has been lodged, then the enforcement process will be stayed pending the outcome of the appeal.

Determine whether any monies have been paid

Before taking the action outlined below, a telephone call should be made to the Magistrates' Court to ascertain whether the defendant has voluntarily paid any of the sum due under the confiscation order.

Send letter to the defendant

Within fourteen days of primary responsibility being established, the prosecutor should send a letter to the defendant or defendant's representatives indicating the preferred enforcement process (voluntary payment or application for receiver) and enclosing any relevant documents for signature (e.g. authorities for accounts, policies, motor vehicles, jewellery etc).

The letter will inform the defendant that failure to satisfy the Confiscation Order by the due date together with a refusal to consent to the preferred enforcement process may lead to the imposition of the default sentence. The debt will not be expunged after the default sentence is imposed. It cannot be remitted and will increase due to the accrual of interest at the relevant rate. Enforcement action to realise assets will continue even after the default sentence is imposed.

Determine defendant's earliest release date

The prosecutor should obtain confirmation of changes in the defendant's earliest release date and current location by faxing the Prisoner Release Service on 0121-6263474. Where the defendant's earliest release date post-dates the expiry of time to pay, the prosecutor should ensure that any enforcement action is completed before the defendant's earliest date of release, and preferably before the expiry of time to pay, so that the magistrates' court can issue a warrant of commitment in relation to any unpaid amount while the defendant is in prison.

List an enforcement hearing in the Magistrates' Court

At the request of the prosecutor, the Magistrates' Court should list an enforcement hearing to see why the default sentence should not be imposed. The prosecutor should supply the Court with copies of the relevant correspondence to and from the defendant showing its efforts to pursue funds.

Once a default sentence has been imposed, it cannot be remitted and must be served in full, or until such time as the Confiscation order is satisfied, whichever is earliest.

The incentive to the defendant is the fact that wilful refusal to co-operate is likely to lead to the default sentence being imposed and being served in full with the assets then be realised anyway. If there is no penalty for delaying the enforcement process defendant's will continue to do so.

At the request of the prosecutor, the Magistrates' Court should issue a distress warrant or obtain a garnishee order as appropriate. The prosecutor should supply the Court with copies of the relevant correspondence to and from the defendant showing its efforts to pursue the particular assets and any other information or documentary evidence which the Magistrates' Court might reasonably require in order to obtain a garnishee order.

Enforcement hearings at the Magistrates' Court should not normally be adjourned for more than two weeks to allow for the defendant to sign relevant documentation or four weeks to permit the defendant to arrange for the transfer to the Court's bailiffs of chattel assets not already in the Crown's possession.

NB. It can be more expedient and cost-effective for the court rather than a receiver to realise certain chattels or cash.

Appoint Enforcement Receiver

There are three conditions that must exist before the court appoints an enforcement receiver:

The court has made a confiscation order;
The confiscation order has not been satisfied; and
The confiscation order is not subject to appeal.

Once these conditions are met, on the application of the prosecutor, the Crown Court may appoint a Receiver in respect of realisable property.

Choice of receiver

A panel of receivers will be appointed to act on behalf of the CPS on a range of confiscation related matters across the 42 Areas.

Areas will take receivers from a national panel on a case-by-case basis; geography does not impact on the selection and use of receivers. Receivers will be appointed to the panel after a rigorous tendering exercise and be experienced in this work and fully acquainted with CPS requirements.

The project team, on behalf of the Service, will undertake the tendering and the setting up of the panel.

The receiver's letters of appointment will agree the fees they charge and the terms and conditions under which they will work as set out in the Framework Agreement.

Application to court

The Crown Court may determine the application without a hearing. The Rules state that unless the application to appoint the receiver is made ex parte, the application and witness statement must be lodged with the Crown Court and served on -

the defendant;
the recipients of any tainted gifts; and
any other person whom the applicant knows to have an interest in any property to which the application relates,

at least seven days before the date fixed by the court for hearing the application, unless the Crown Court specifies a shorter period.

Content of witness statement

The witness statement should give the grounds for the application including:

an overview of the case and the circumstances giving rise to the need for the appointment of an enforcement receiver:
copy correspondence with the defendant inviting payment of the confiscation order;
full details of the proposed receiver and exhibit the letter of agreement setting out the basis for the receivers remuneration and operation and a consent letter from the receiver that he or she is willing to act in the case and abide by the terms of both the order and letter of agreement; and
to the best of the witness's ability, full details of the realisable property in respect of which the applicant is seeking the order and specify the person holding that realisable property.

A draft receivership order must accompany the witness statement.

Hearsay evidence

Hearsay evidence is admissible in restraint and receivership applications, however, Rule 39 of the Crown Court (Confiscation, Restraint and Receivership) Rules 2003 (SI 2003 No. 421) provides that section 2(1) of the Civil Evidence Act 1995 does not apply to these proceedings. There is no duty to serve notice identifying the hearsay statements or of an intention to rely upon hearsay.

Receiver's powers

The receiver gets his authority to act from the court. This is set out in the order appointing him (section 51 POCA). It is extremely important that the order appointing a enforcement receiver is drafted so as to give the receiver the powers that he needs to operate to manage the assets.

An ex parte application to appoint an enforcement receiver the Court cannot give the receiver power to manage the assets as in order to grant the receiver this power an opportunity to be heard must be given to all parties likely to be affected by the enforcement receiver order.

On an ex parte order the receiver may be given the:

Power to take possession of property;
Power to start, carry on or defend legal proceedings in respect of the property;
Power to enter premises in England and Wales:
To search for or inspect anything authorised by the Court;
To make or obtain a copy or photograph or other record as authorised by the Court;
To remove any property as authorised in the receivership order.

After an inter partes hearing he may be given the powers set out above and also the:

Power to realise so much of the property as is necessary to meet the receivers remuneration and expenses; and
Power to realise so much of the property as is necessary to meet the receivers remuneration and expenses.

Address any third party claims

Please refer to the heading - "The role of third parties" - above.

Appeals

Any decision as to whether a prosecution appeal should be lodged, should be taken at level E, or by the head of the relevant trials unit.

Prosecution appeals in respect of enforcement receivership include:

Section 65 (1) to the Court of Appeal in respect of the refusal of the Crown Court to appoint and/or give powers to an enforcement receiver;
Section 65 (2) (a) to the Court of Appeal in respect of an order made by the Crown Court to appoint and/or to give powers to an enforcement receiver;
Section 65 (3) to the Court of Appeal where on a further application by the prosecutor, the Crown Court refuses to make an order;
Section 65 (4) to the Court of Appeal where on a further application the Crown Court has made an order; and
Section 66 to the House of Lords in respect of a decision of the Court of Appeal.

In addition, the defendant and/or any person affected by the appointment or powers given to a enforcement receiver; by the grant of powers to the receiver; by the refusal or the giving of directions; or by a refusal to discharge or vary the order, may appeal with leave to the Court of Appeal. Any party appearing in an appeal before the Court of Appeal may appeal with leave to the House of Lords.

The appeal procedure may be found in a combination of POCA, the Criminal Appeal (Confiscation, Restraint and Receivership) Rules 2003 and in the Proceeds of Crime Act 2002 (Appeals under Part 2) Order 2003 (SI 2003 No. 82).

Notice of Appeal should be served within fourteen days, although application can be made for an appeal out of time.

Chase up enforcement receiver

Regular contact should be maintained with the enforcement receiver and reports obtained of the amounts recovered and of the remaining balance. This information should be entered on the Excel spreadsheet and submitted to Headquarters on a quarterly basis.

Cases where the Magistrates' Court holds lead responsibility

Quarterly updates as to the value of assets realised should be obtained from the relevant Magistrate's Court. The details should be entered in the Excel spreadsheet and forwarded to Headquarters every quarter whilst the order is outstanding.

If the Magistrates' Court appears to be making little progress, the prosecutor should consider asking the court to list a hearing to activate the default sentence of imprisonment.

Alternatively, further consideration should be given to the appointment of an enforcement receiver, if appropriate.

Useful Sources

National Best Practice on Confiscation Order Enforcement

Receiver Panel

BDO Stoy Hayward

Kroll Ltd

Richard Long & Co

Chantrey Vellacott DFK

Kingston Smith & Partners

Begbies Traynor

Baker Tilley

Mazars

Grant Thornton

Haslers

Moore Stephens

Davies Arnold Cooper

Annexes

Annex 1 - Draft Restraint Order

DISOBEDIENCE TO THIS ORDER IS A CONTEMPT OF COURT WHICH IF YOU ARE AN INDIVIDUAL IS PUNISHABLE BY IMPRISONMENT OR IF YOU ARE A BODY CORPORATE IS PUNISHABLE BY SEQUESTRATION OF YOUR ASSETS AND BY IMPRISONMENT OF ANY INDIVIDUAL RESPONSIBLE

IN THE CROWN COURT SITTING AT [NAME]

Before His/Her Honour Judge [NAME OR LEAVE BLANK FOR NAME] sitting in Private

No.

Dated

IN THE MATTER OF [FULL NAME]

(Defendant)

AND

IN THE MATTER OF THE PROCEEDS OF CRIME ACT 2002

__________________________________________________________

RESTRAINT ORDER PROHIBITING DISPOSAL OF ASSETS

__________________________________________________________

TO: (1) Mr X (the Defendant)

(2) Mrs X (wife of the Defendant)

(3) [AB LIMITED] (a company controlled by the Defendant)

(4) [NAME OF OTHER RESTRAINED PARTY]

PENAL NOTICE

If you the Defendant, Mrs X, AB LIMITED [or NAME OF RESTRAINED PARTY] disobey this Order you may be held to be in contempt of court and may be imprisoned, fined or have your assets seized.

Any other person who knows of this order and does anything which helps or permits the Defendant, Mrs X, AB LIMITED [or NAME OF RESTRAINED PARTY] to breach the terms of this Order may also be held to be in contempt of court and may be imprisoned, fined or have their assets seized.

IMPORTANT: NOTICE TO THE DEFENDANT, MRS X, AND AB LIMITED [and/or NAME OF RESTRAINED PARTY]

This order prohibits you the Defendant, from dealing with your assets. It prohibits Mrs X from dealing with the assets identified in paragraph [INSERT NO.] of this Order. It prohibits AB LIMITED from dealing with the assets identified in paragraph [INSERT NO.] of this Order. [REPEAT FOR ANY OTHER RESTRAINED PARTY]

The order is subject to the exceptions contained in the order. You should read it all carefully.

You are advised to consult a solicitor as soon as possible. Under paragraph 2 of schedule 2 of the Access to Justice Act 1999, as amended by paragraph 36 of schedule 11 of Proceeds of Crime Act 2002, you may be entitled to Community Legal Service Funding in respect of this Order. Your solicitor will be able to provide you with the appropriate forms. Such applications should be submitted to the Legal Services Commission, 29-37 Red Lion Street London WC1R 4PP. In relation to LSC funding (formerly Legal Aid) general enquiries may be directed to the free LSC telephone helpline: 0800 085 6643.

You have a right to ask this court to vary or discharge this order, see paragraph [INSERT NO.] below. If you wish to do this you must serve on the Crown Prosecution Service and all other affected parties a copy of the application and any witness statement in support at least 2 clear working days before the date fixed for the hearing.

There is an interpretation section at page [INSERT NO.] of this order.

THE ORDER

This is a Restraint Order made against Mr X ("the Defendant"), Mrs X and AB LIMITED [and/or NAME OF RESTRAINED PARTY] on [DATE OR LEAVE BLANK TO INSERT DATE] by His/Her Honour Judge [INSERT NAME OR LEAVE BLANK FOR NAME] on the application of the Crown Prosecution Service ("the Prosecutor"). The Judge read the witness statements listed in Schedule A and accepted the undertakings set out in Schedule B at the end of this order.

This order was made without notice to the Defendant, Mrs X, AB LIMITED, [and/or NAME OF RESTRAINED PARTY]. The Defendant, Mrs X, AB LIMITED, [and/or NAME OF RESTRAINED PARTY] have a right to apply to the court to vary or discharge the order - see paragraph [NUMBER] below.

There will be a further hearing of this matter on [INSERT DATE OR LEAVE BLANK FOR DATE] ("the return date") when the Prosecutor will apply for the continuation of this order. The Defendant, Mrs X, AB LIMITED, [and/or NAME OF RESTRAINED PARTY] and any other person affected by this order are entitled to appear and to object to the continuation of this order or to ask for it to be varied.

DISPOSAL OF OR DEALING WITH ASSETS

4. The Defendant must not:-

remove from England and Wales any of his assets which are in England and Wales [up to the value of £ amount. - NOT NECESSARY TO INSERT VALUE IF BENEFIT WILL EXCEED REALISABLE ASSETS]; or

in any way dispose of, deal with or diminish the value of any of his assets whether they are in or outside England and Wales [up to the value of £ amount. NOT NECESSARY TO INSERT VALUE IF BENEFIT WILL EXCEED REALISABLE ASSETS].

5. Paragraph 4 applies to all the Defendant's assets whether or not the assets are described in this order or are transferred to the Defendant after the order is made, are in his own name and whether they are solely or jointly owned. For the purpose of this order the Defendant's assets include any asset which he has the power, directly or indirectly, to dispose of or deal with as if it were his own. The Defendant is to be regarded as having such power if a third party holds or controls the asset in accordance with his direct or indirect instructions.

6. This prohibition includes the following assets in particular:-

the property known as [INSERT ADDRESS, TITLE NUMBER AND NAME PROPERTY REGISTERED IN] or the net sale money after payment of any mortgages if it has been sold;

the property and assets of the Defendant's business known as [NAME] carried on at [ADDRESS] or the sale money if any of them have been sold;

the assets of a company called AB LIMITED (company number xxxxx), registered address xxxxx;

the shares held by the Defendant in the company called AB LIMITED (company number xxxxx), registered address xxxxx;

any money in the account numbered [ACCOUNT NUMBER & SORT CODE] at [NAME AND ADDRESS OF BANK] held in the name of [NAME(S) IN WHICH ACCOUNT HELD e.g name of defendant, third party or AB LIMITED].

a vehicle [CAR/ MOTOR BIKE MAKE/MODEL, REGISTRATION NUMBER & WHOSE NAME REGISTERED IN].

jewellery namely [DETAILS] presently in the possession of the [NAME] Police Service.

cash of £ [AMOUNT] currently in the possession of the [NAME] Police Service.

AND IT IS ORDERED THAT:-

The Assets of AB LIMITED be treated as the personal assets of the Defendant.

[INSERT THIS ORDER IF LIFTING THE CORPORATE VEIL]

[7. (1) If the total value free of charges or other securities (unencumbered value) of the Defendant's assets in England and Wales exceeds £ [AMOUNT], the Defendant may remove any of those assets from England and Wales or may dispose of or deal with them so long as the total unencumbered value of the Respondent's assets still in England and Wales remains above £[AMOUNT].

(2) If the total unencumbered value of the Defendant's assets in England and Wales does not exceed £[AMOUNT] the Defendant must not remove any of those assets from England and Wales and must not dispose of or deal with any of them. If the Defendant has other assets outside England and Wales, he may dispose of or deal with those assets outside England and Wales so long as the total unencumbered value of all his assets whether in or outside England and Wales remains above £[AMOUNT]. ]

[ONLY INSERT IF REALISABLE ASSETS EXCEEDS BENEFIT. NOT APPLCIABLE IN CRIMINAL LIFESTYLE CASES]

This prohibition does not include the sum of £ [AMOUNT] held by the [INSERT] Police, seized pursuant to section 294 of the Proceeds of Crime Act 2002, whilst detained pursuant to an order for continued detention made by the [INSERT DETAILS OF THE MAGISTRATES COURT AND DATE OF THE DETENTION ORDER] under section 295(2) of the Proceeds of Crime Act 2002.

MRS X must not:-

remove from England and Wales or

in any way dispose of or deal with or diminish the value of the following assets -

[LIST ASSETS]

AB LIMITED (a company in the Control of the Defendant) must not:-

remove from England and Wales or

in any way dispose of or deal with or diminish the value of the following assets -

The assets of the company called AB LIMITED (Company number xxxxx) registered address xxxxxxxxxxxx;

[LIST SPECIFIC ASSETS OF AB LIMITED SEEKING TO RESTRAIN]

PROVISION OF INFORMATION

11. The Defendant must serve a witness statement certified by a statement of truth on the Prosecutor within [NUMBER] days after this order has been served on him setting out all his assets and all assets under his control whether in or outside England and Wales and whether in his own name or not and whether solely or jointly owned, giving the value, location and details of all such assets. The witness statement must include:

(1) the name and address of all persons including financial institutions holding any such assets;

(2) details of the Defendant's current salary or other form of income, identifying the amounts paid, by whom they are paid and the account or accounts into which such sums are paid;

(3) the names and numbers of all accounts held by or under the control of the Defendant, together with the name and address of the place where the account is held and the sums in the account;

(4) details (including addresses) of any real property in which the Defendant has any interest, including an interest in any of the net sale money if the property were to be sold. These details must include details of any mortgage or charge on the property;

(5) details of all National Savings Certificates, unit trusts, shares or debentures in any company or corporation, wherever incorporated in the world, owned or controlled by the Defendant or in which he has an interest;

(6) details of all trusts of which the Defendant is a beneficiary, including the name and address of every trustee;

particulars of any income or debt due to the Defendant including the name and address of the debtor;

details of all assets over £1,000 in value received by the Defendant, or anyone on his behalf, since [INSERT DATE - USUALLY 6 YEARS PRIOR TO COMMENCEMENT OF PROCEEDINGS AGAINST DEFENDANT], identifying the name and address of all persons from whom such property was received.

details of all assets over £1,000 in value transferred by the Defendant, or anyone on his behalf, to others since [INSERT DATE - USUALLY 6 YEARS PRIOR TO COMMENCEMENT OF PROCEEDINGS AGAINST DEFENDANT], identifying the name and address of all persons to whom such property was transferred.

12. (1) Subject to any further order of the court any information given in compliance with this order shall only be used:-

for the purpose of these proceedings;

if the Defendant is convicted, for the purposes of any confiscation hearing that may take place; and

if a confiscation order is made, for the purposes of enforcing that order, including any receivership proceedings.

(2) There shall be no disclosure of any material disclosed in compliance with this order to any co-defendant in the criminal proceedings.

However, nothing in this paragraph shall make inadmissible any disclosure made by the Defendant in any proceedings for perjury relating to that disclosure.

REPATRIATION

13. (1) The Defendant must within 21 days after service of this Order upon him bring any moveable asset in respect of which he has an interest, which is outside England and Wales, to a location within England and Wales.

(2) The Defendant must inform the Crown Prosecution Service of the location within England and Wales within 7 days of the arrival of the assets.

(3) If the asset is cash or credit in a financial institution it must be paid into an interest bearing account and the account holder, location and account number be notified to the Crown Prosecution Service within 7 days.

EXCEPTIONS TO THIS ORDER

14. (1) This order does not prohibit the Defendant, on the proviso that he is not in prison, from spending up to £250 a week towards his ordinary living expenses, up to the date of the making of any confiscation order. But before spending any money the Defendant must tell the Prosecutor where the money is to come from.

(2) This order does not prohibit MRS X, on the proviso that she is not in prison, from spending up to £250 a week towards her ordinary living expenses, up to the date of the making of any confiscation order. But before spending any money MRS X must tell the Prosecutor where the money is to come from.

This order does not prohibit the Defendant from spending any money he may receive by way of state benefit from the Department of Social Security.

This order does not prohibit the Defendant from spending towards his ordinary living expenses any sum earned by him whilst he is in prison.

The Defendant [and MRS X] may agree with the Prosecutor that the above spending limits be varied or that this Order be varied in any other respect, but any such agreement must be in writing.

This order does not prevent:-

(a) any person from paying any money in satisfaction of the whole or part of any confiscation order which may be made against the Defendant; or

the levy of distress upon any goods subject to this order for the purpose of enforcement of any confiscation order which may be made against the Defendant.

VARIATION OR DISCHARGE OF THIS ORDER

14. Anyone affected by this order may apply to the court at any time to vary or discharge this order (or so much of it as affects that person), but they must first inform the Prosecutor and the Defendant, Mrs X, AB LIMITED, [and/or NAME OF RESTRAINED PARTY] giving two working days notice together with a witness statement in support of the application.

EFFECT OF THIS ORDER

A person who is an individual who is ordered not to do something must not do it himself or in any other way. He must not do it through others acting on his behalf or on his instructions or with his encouragement.

A person who is not an individual which is ordered not to do something must not do it itself or by its directors, officers, partners, employees or agents or in any other way.

PARTIES OTHER THAN THE DEFENDANT

Effect of this order

17. It is a contempt of court for any person notified of this order knowingly to assist in or permit a breach of this order. Any person doing so may be imprisoned or fined. He is also at risk of prosecution for a money laundering offence.

Set off by banks

18. This order does not prevent any bank from exercising any right of set off it may have in respect of any facility which it gave to the Defendant before it was notified of this order.

Withdrawals by the Defendant

No bank need enquire as to the application or proposed application of any money withdrawn by the Defendant if the withdrawal appears to be permitted by this order.

Cash in the custody of the Police

The [NAME OF POLICE] may pay the quantities of cash in their custody into an interest bearing account until further order unless required as an exhibit in criminal proceedings against the Defendant.

Existing Charges

This order does not prevent any financial institution from enforcing or taking any other steps to enforce an existing charge it has in respect of a property or properties so secured.

Persons outside England, Wales, Scotland and Northern Ireland

22. (1) Except as provided in paragraph (2) below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court, Scotland or Northern Ireland.

(2) The terms of this order will affect the following persons in a country or state outside the jurisdiction of this court, Scotland or Northern Ireland:-

a person to whom this order is addressed or the officer or agent appointed by power of attorney of such a person;

any person who:-

is subject to the jurisdiction of this court, Scotland or Northern Ireland;

has been given written notice of this order at his residence or place of business within the jurisdiction of this court, Scotland or Northern Ireland; and

is able to prevent acts or omissions outside the jurisdiction of this court, Scotland or Northern Ireland which constitute or assist in a breach of the terms of this order; and

(c) any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state.

Enforcement in Scotland and Northern Ireland

23. This order shall have effect in the law of Scotland and Northern Ireland, and may be enforced there, if it is registered under the Proceeds of Crime Act 2002 (Enforcement in Different Parts of the United Kingdom) Order 2002.

Assets located outside England and Wales

24. Nothing in this order shall, in respect of assets located outside England and Wales, prevent any third party from complying with-

(1) what it reasonably believes to be its obligations, contractual or otherwise, under the laws and obligations of the country or state in which those assets are situated or under the proper law of any contract to which it is a party; and

(2) any orders of the courts of that country or state, provided that reasonable notice of any application for such an order is given to the Prosecutor;

unless those assets are situated in Scotland or Northern Ireland, in which case this order must be obeyed there.

UNDERTAKINGS

The Crown Prosecution Service gives to the court the undertakings set out in Schedule B to this order.

DURATION OF THE ORDER

This order will remain in force until it is varied or discharged by a further order of this court.

INTERPRETATION

Reference to "the Defendant" means Mr X. Reference to an asset belonging to the Defendant includes any property in which the Defendant has an interest and any property to which the Defendant has a right.

A period of time expressed as a number of days shall be computed as clear days as defined in rule 57.2 of the Criminal Procedure Rules 2005.

COSTS

29. The costs of this order are reserved.

COMMUNICATIONS WITH THE COURT

All communications to the court about this order should be sent to the Crown Court [ADDRESS] quoting the case number. The office is open between 10am and 4:30pm Monday to Friday. The telephone number is [TELEPHONE NUMBER].

ADDRESS OF THE PROSECUTOR FOR SERVICE AND ANY COMMUNICATION IN RESPECT OF THESE PROCEEDINGS

All communications to the Prosecutor about this order should be sent to the Crown Prosecution Service [ADDRESS]. Telephone number [TELEPHONE NUMBER] quoting the Defendant's name. The CPS is open between 9am and 5pm Monday to Friday.

COURT STAMP

SCHEDULE A

WITNESS STATEMENTS

(1) Witness Statement of [NAME & DATE]

SCHEDULE B

UNDERTAKINGS GIVEN TO THE COURT BY THE PROSECUTOR

(1) The Prosecutor will serve upon the Defendant, Mrs X and AB LIMITED [and NAME OF RESTRAINED PERSON]:-

(a) a copy of this order; and

(b) a copy of the witness statement containing the evidence relied upon by the Prosecutor, and any other documents provided to the court on the making of the application.

(2) Anyone notified of this order will be given a copy of it by the Prosecutor.

(3) The Prosecutor will pay the reasonable costs of anyone other than the Defendant, Mrs X and AB LIMITED [and NAME OF RESTRAINED PERSON] which are incurred as a result of this order including the costs of finding out whether that person holds any of the Defendant's assets, save that the Prosecutor will not without an order of the court be obliged to pay any legal or accountancy costs so incurred unless the Prosecutor first gives its consent in writing.

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