Part 2Confiscation: England and Wales

Restraint orders

42 Application, discharge and variation

(1)

A restraint order—

(a)

may be made only on an application by an applicant falling within subsection (2);

(b)

may be made on an ex parte application to a judge in chambers.

(2)

These applicants fall within this subsection—

(a)

the prosecutor;

F1(b)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)

an accredited financial investigator.

(3)

An application to discharge or vary a restraint order or an order under section 41(7) may be made to the Crown Court by—

(a)

the person who applied for the order;

(b)

any person affected by the order.

(4)

Subsections (5) to F2(8) apply to an application under subsection (3).

(5)

The court—

(a)

may discharge the order;

(b)

may vary the order.

(6)

If the condition in section 40 which was satisfied was that proceedings were started or an application was made, the court must discharge the order on the conclusion of the proceedings or of the application (as the case may be).

F3(6A)

The duty in subsection (6) to discharge a restraint order on the conclusion of proceedings does not apply where—

(a)

the proceedings are concluded by reason of a defendant's conviction for an offence being quashed,

(b)

the order is in force at the time when the conviction is quashed, and

(c)

the Court of Appeal has ordered the defendant to be retried for the offence or the prosecutor has applied for such an order to be made.

(6B)

But the court must discharge the restraint order—

(a)

if the Court of Appeal declines to make an order for the defendant to be retried,

(b)

if the Court of Appeal orders the defendant to be retried but proceedings for the retrial are not started within a reasonable time, or

(c)

otherwise, on the conclusion of proceedings for the retrial of the defendant.

F4(7)

If the condition in section 40 which was satisfied was that an investigation was started—

(a)

the court must discharge the order if within a reasonable time proceedings for the offence are not started;

(b)

otherwise, the court must discharge the order on the conclusion of the proceedings.

(8)

If the condition in section 40 which was satisfied was that an application was to be made—

(a)

the court must discharge the order if within a reasonable time the application is not made;

(b)

otherwise, the court must discharge the order on the conclusion of the application.