Criminal Law: Restraint Orders | Setfords

Criminal Law: Restraint Orders

The rise in HMRC investigations and tax-related prosecutions has also seen an increase in the use of Restraint Orders, Provision of Information Orders and a Repatriation Orders.

Following the introduction of the Proceeds of Crime Act 2002, defendants charged with tax evasion and fraud are often charged with money laundering.

Prosecutors are increasingly asking courts to issue Restraint Orders, thereby reducing the risk of dissipation of assets. One issue that often causes confusion is the extent to which a court can restrain company assets.

Companies enjoy their own legal personality separate and distinct from the defendant. In normal circumstances, therefore, assets of a company do not constitute realisable property of the defendant. However, a long line of authorities have established that where a defendant is the controlling mind of the company, and it is a sham and/or has been used to facilitate the criminal conduct complained of, the court may ‘pierce the corporate veil’ of the company and treat it as the realisable property of the defendant.

The court will not, however, permit the restraint order to operate at the pre-conviction stage is such a way as to preclude the company engaging in legitimate trading activity. The restraint order will need to make provision for company assets to be released to facilitate such activity. In cases of particular complexity, an application for the appointment of a management receiver may be necessary.

In addition to a Restraint Order, a court can also make a Provision of Information Order and a Repatriation Order.

A provision of information order requires the defendant to provide information to the prosecutor in a witness statement, verified by a statement of truth, about the nature, extent and location of all his realisable property. Such an order may be appropriate if the value of the defendant’s known assets do not correlate with the value of the property known to have been obtained by him or her.

Repatriation orders are orders requiring a defendant to repatriate to England and Wales assets held overseas. They are most commonly used in relation to funds held in overseas bank accounts which are vulnerable to dissipation before a letter of request can be issued and actioned to secure them.

We act for companies, and many high-net-worth individuals who are currently the subject of HMRC investigations include fraud and money laundering. We have an enviable success rate representing clients charged with serious offences. Whether you are charged with tax-related offences, fraud, money laundering or Cash Seizures, restraint Orders and Confiscation Proceedings contact us for an initial free consultation.

Malcolm Simmons

Malcolm Simmons

Consultant Solicitor
Criminal Law

If you are looking for a proactive approach with clear, strategic advice for the successful conclusion of your case, contact us for a free consultation.

Enquire today 020 7871 4941 Email Malcolm

Significant experience advising clients who are the subject of HMRC investigations and criminal prosecutions for tax-related offences, fraud and money laundering and other offences including:

  • Serious and Organised Crime
  • Fraud and Financial Crime
  • Corporate Crime
  • Tax Investigations
  • Bribery & Corruption
  • Insider Dealing
  • Corporate Manslaughter and Health & Safety Law
  • Cash Seizures, Restraint Orders and Confiscation Proceedings

Former international judge who presided in many complex serious and organised crime cases including tax evasion, money laundering, fraud and asset confiscation cases. Will give clear strategic advice for the successful conclusion of difficult financial crime cases.