Introduction
It is now standard for a pre-charge Restraint Order to involve a clause that requires the subject of the Restraint Order to provide a list of all assets that are held by the subject. This is usually required in the form of a witness statement with an attached statement of truth.
The second part of the order then requires the subject to repatriate any assets that they have outside of the UK back to the UK. The time set for both of these requirements is usually rather short, 7 to 21 days. However debatable it is as to whether it is reasonable that such intrusive provisions should be included in an order which is made at an ex-parte hearing, these provisions are now seen as standard.
The relevant provisions of the Restraint Order that make up a repatriation order usually include the following points:
- The Alleged Offender must, within [xx] days after being asked to do in writing by the Prosecutor, 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.
- The Alleged Offender must inform the Prosecutor of the location within England and Wales within [xx] days if the arrival of the asset.
- If that 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 Prosecutor within -- days.
These are summarised provisions of a number of orders, but they cover the imperative parts. The Prosecutor can activate the provisions at any time, and normally does so shortly after the order is made. The effect of the provision is to require ‘any moveable assets’ to be moved to England and Wales. In combination with a requirement that the subject discloses all his assets, this is an intrusive but effective part of the Restraint Order.
Although an overall challenge to the reasonableness of this type of order is possible, it is unlikely to be successful, as these types of provisions have already been considered in DPP v Scarlett [2000] 1 WLR 515. Below I will set out the law in full and how best to deal with such a requirement.
Relevant Law
The power to make such an order is given to the court by section 41 (7) of the Proceeds of Crime Act 2002. This provision states:
(7) The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.
In DPP v Scarlett the Jurisdiction of the Crown Court to make a Repatriation Order was considered. The court found that the power to make a Repatriation Order was inherent in section 41 (7), as was the power to make a disclosure Order. Beldam LJ stated:
“If a power to order full disclosure of assets on affidavit is inherent in a restraint order the order should also include power to order the return of those assets within the jurisdiction. Both powers are essential to the purpose of the restraint order and to the realisation of those assets which is the purpose of the express stator power given by Parliament.”
This power must be used by the court on a discretionary basis. The court must consider why it is appropriate to make such an order rather than the prosecutor seek mutual legal assistance from the country where the assets are located.
If the subject of a Repatriation Order fails to comply with the order, then it is a breach of the order. This will be dealt with as a contempt of court. If a Repatriation Order is not complied with, it is for the prosecution to bring contempt of the Crown Court proceedings.
These proceedings are governed by CrimPR Pt 48. The contempt is a civil contempt not a criminal contempt, as confirmed by the Supreme Court in O’Brien v Director of the Serious Fraud Office [2014] UKSC 23. This means that breaching a Restraint Order is not, in itself, a crime but the court can impose a punishment for such a breach.
If contempt proceedings are brought it will be for the prosecution to prove that the contempt is proven. In this case that will mean that moveable assets have not been moved back to England and Wales in accordance with the order.
Response
There are two ways in which a subject can respond. First, challenging whether the order is reasonable. As set out above, it is a discretionary power. So, one option is to apply to the Court for the Repatriation section to be set aside. The basis of this application would be to show that it was wrong to require the subject to repatriate their assets and that this requirement was too much of a burden in the circumstances.
This application can be made alone or as a part of a wider application to discharge the order on the grounds that there is no risk for dissipation, or that the order was made on an improper basis.
The second option is to comply with the order by setting out what assets the subject has, and why they cannot be repatriated. This might include giving reasons why liquid assets need to stay in a set account, and why other assets cannot be reasonably repatriated.
Along with these substantive options for a response, it is important to ask for time. This will usually be given, but it is important that it is requested and agreed upon. If not, the subject will technically be in contempt.
Barnaby Hone is a barrister with specialist expertise in all types of asset recovery and financial crime. He is ranked in Chambers and Partners and the Legal 500 for his knowledge within POCA, asset recovery, and forfeiture. Barnaby writes the chapters on International Asset Recovery and Terrorism Finance for Millington and Sutherland Williams on POCA.
