A restraint order can freeze a person's assets from the early stages of a criminal investigation, long before any charge, so as to preserve them for a possible confiscation order. We explain when the Crown Court may make one, what it permits and prohibits, and how it can be varied, discharged or appealed.

In brief

• A restraint order may be made once a criminal investigation has started, and before any charge.

• Since the 29th June 2026, the court must also be satisfied that there is a real risk of dissipation.

• Living and business expenses may be released, but restrained funds may not be used for legal expenses relating to the offence, save for relevant legal aid payments.

• Orders obtained without notice may be challenged for non-disclosure, and appeals now lie under section 67J.

The purpose of a restraint order

A restraint order under Part 2 of the Proceeds of Crime Act 2002 ("POCA") operates before conviction as the counterpart to confiscation. It prohibits a person from dealing with his assets, so that their value remains available to meet any confiscation order which may later be made. Since it may be obtained at an early investigative stage, and without notice, it is a powerful and sometimes draconian measure.

The conditions for making an order

Under section 40, the Crown Court's power to make a restraint order arises where one of five conditions is satisfied. The two most commonly relied upon are:

(i) that a criminal investigation has been started in England and Wales and there are reasonable grounds to suspect that the alleged offender has benefited from his criminal conduct, and

(ii) that proceedings have been started and not concluded and there is reasonable cause to believe that the defendant has benefited.

Since the 29th June 2026, the court must also be satisfied that there is a real risk that realisable property will be dissipated unless the order is made (section 40(1), as amended by the Crime and Policing Act 2026). That requirement appears to apply from that date without any express transitional limitation.

What the order prohibits, and what it permits

By section 41, the court may prohibit any specified person from dealing with any realisable property held by him. In exercising its powers, the court is subject to the "legislative steer" in section 69, under which the powers must be exercised with a view to the value of realisable property being available to satisfy any confiscation order and, where none has yet been made, with a view to there being no diminution in that value; and, since the 29th June 2026, those powers are subject to the "principal objective" in section 5A, which is, broadly, that of depriving the defendant of his benefit so far as is within his means (section 69(3)).

A restraint order may contain exceptions, in particular for reasonable living expenses and for carrying on a trade, business, profession or occupation (section 41(3)), and it must contain an exception for relevant legal aid payments (section 41(2A)). However, it must not make provision for legal expenses which relate to the offence giving rise to the order and which are incurred by the defendant or by a recipient of a tainted gift (section 41(4)); the policy is that restrained funds should not pay for the defence of the very proceedings to which they are tied.

In R v Luckhurst [2022] UKSC 23, the Supreme Court held that the prohibition does not extend to the legal expenses of separate civil proceedings (such as claims in tort or for equitable wrongs), even where those are founded on similar facts, which are instead controlled by the court's discretion as to reasonableness. Since the 29th June 2026, section 41(3A) has set out matters to be taken into account where an exception for living expenses is sought. Further amendments to section 41, which will alter the provision for legal expenses, have been enacted by the Crime and Policing Act 2026 but are not yet in force.

Applications, non-disclosure and discharge

Only the prosecutor or an accredited financial investigator may apply for a restraint order, and the application may be made without notice to a judge in chambers (section 42). An applicant who proceeds without notice is under a strict duty to give full and frank disclosure to the court. In Re Stanford International Bank Ltd [2010] EWCA Civ 137, the Court of Appeal set aside a restraint order (made under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005) for serious non-disclosure, applying the principles in Brink's-Mat Ltd v Elcombe [1988] 1 WLR 1350, although it then re-granted the order afresh once the position was properly before the court.

The person who applied for the order, or any person affected by it, may apply to the Crown Court to discharge or vary it (section 42). The court must discharge the order when the proceedings conclude or, where the order was based on an investigation, if proceedings are not started within a reasonable time.

Appeals

An appeal against the Crown Court's decision lies to the Court of Appeal and from there to the Supreme Court. With effect from the 29th June 2026, the Crime and Policing Act 2026 repealed the former sections 43 and 44, and the appeal provisions for restraint orders are now in section 67J ("Appeals in relation to restraint orders").

Section 67J permits an appeal to the Court of Appeal against a refusal to make an order (section 67J(1)) and against a decision on an application to discharge or vary (section 67J(2)), with a further appeal to the Supreme Court. Part 42 of the Criminal Procedure Rules governs appeals in confiscation and related proceedings, and Part 33 governs restraint proceedings themselves.

Receivers

Once a restraint order has been made, the court may appoint a management receiver over the realisable property (section 48), with powers to take possession of, manage and deal with it (section 49). The court must not confer powers of management or sale without first giving those with interests in the property a reasonable opportunity to make representations.

How DWK Law can help

DWK Law advise and represent those affected by restraint orders, including on applications to vary or discharge, challenges founded on non-disclosure, and applications for the release of funds for living and business expenses.

Speak to a member of our team in confidence on 020 3179 2924, or by email to info@dwklaw.co.uk

DWK Law. This guide is for general information only and is not legal advice. The law is stated as at the 6th November 2026 and may have changed since. Advice should be taken on the facts of any particular case