See also RSC Order
115

PRACTICE DIRECTION RSC
115 – RESTRAINT ORDERS AND
APPOINTMENT OF RECEIVERS IN CONNECTION WITH CRIMINAL PROCEEDINGS AND
INVESTIGATIONS
This practice direction supplements RSC Order
115

Contents of this Practice Direction

Title	Number
Scope and interpretation	Para. 1.1
SECTION I – RESTRAINT ORDERS
Form of restraint order	Para. 2.
Amount under restraint	Para. 3.1
Living expenses and legal fees	Para. 4.
Restraint orders against third parties	Para. 5.1
Restraint orders against businesses	Para. 6.
Duration of order made on application without notice – rules 4(2) and 27(2)	Para. 7.1
SECTION II – APPOINTMENT OF RECEIVER
SECTION III – DOMESTIC FREEZING ORDER CERTIFICATE
Form of domestic freezing order certificate	Para. 9.
Appendix 1
Appendix 2

Scope and interpretation

1.1

This practice direction applies to applications to the
High Court for a restraint order or the appointment of a receiver under
–

(1) Part VI of the Criminal Justice Act 1988
(‘the 1988 Act’);

(2) Part I of the Drug Trafficking Act 1994
(‘the 1994 Act’); or

(3) Schedule 4 to the Terrorism Act 2000 (‘the
2000 Act’).

(Part VI of the 1988 Act and Part I of the 1994 Act are
repealed by the Proceeds of Crime Act 2002 from a day to be appointed, but will
continue to apply to pending and transitional cases. Following their repeal,
applications for a restraint order or the appointment of a receiver which would
previously have been made under those Acts will instead be made to the Crown
Court under Part 2 of the 2002 Act.)

1.2

In this practice direction –

(1) ‘the prosecutor’ means the person
applying for a restraint order or the appointment of a receiver; and

(2) ‘the defendant’ means the person
against whom criminal proceedings have been brought or a criminal investigation
is taking place, and against whom a confiscation order or forfeiture order has
been or might be made.

SECTION I – RESTRAINT ORDERS

Form of restraint order

2.

An example of a restraint order is set
out in Appendix 1 to this
practice direction. This example may be modified as appropriate in any
particular case.

Amount under restraint

3.1

A restraint order may, where appropriate, apply to
–

(1) all of the defendant’s realisable
property;

(2) the defendant’s realisable property up to a
specified value; or

(3) one or more particular specified
assets.

3.2

Where –

(1) a confiscation order or forfeiture order has
already been made against the defendant in a particular amount; or

(2) the prosecutor is able to make a reasonably
accurate estimate of the amount of any confiscation order or forfeiture order
that might be made against him,

and, in either case, it is clear that the
defendant’s realisable property is greater in value than the amount or
estimated amount of that order, the court will normally limit the application
of the restraint order in accordance with paragraph 3.1(2) or (3).

3.3

In such cases the prosecutor’s draft order should
normally either include an appropriate financial limit or specify the
particular assets to which the order should apply.

Living expenses and legal fees

4.

A restraint order will normally, unless it is clear
that a person restrained has sufficient assets which are not subject to the
order, include an exception to the order permitting that person to spend assets
–

(1) in the case of an individual, for reasonable
living expenses; and

(2) in the case of either an individual or a
company, to pay reasonable legal fees so that they may take advice in relation
to the order and if so advised apply for its variation or discharge.

Restraint orders against third parties

5.1

Where a restraint order applies to property held in
the name of a person other than the defendant –

(1) the order must be addressed to that person in
addition to the defendant; and

(2) in applying for the order, the prosecutor
must consider the guidance given in the matter of G (restraint order) [2001]
EWHC Admin 606.

5.2

Examples of additional persons to whom an order
must, where appropriate, be addressed include –

(1) a person who has a joint bank account with
the defendant;

(2) in proceedings under the 1988 Act or the 1994
Act, a person to whom the defendant is alleged to have made a gift which may be
treated as realisable property of the defendant under the provisions of the
relevant Act; or

(3) a company, where the prosecutor alleges that
assets apparently belonging to the company are in reality those of the
defendant.

5.3

However, an order should not normally be addressed
–

(1) to a bank with whom a defendant has an
account; or

(2) to the business name of a defendant who
carries on an unincorporated business (such business not being a separate legal
entity from the defendant).

Restraint orders against businesses

6.

If an application for a restraint order is made
against a company, partnership or individual apparently carrying on a
legitimate business –

(1) the court will take into account the
interests of the employees, creditors and customers of the business and, in the
case of a company, any shareholders other than the defendant, before making an
order which would or might prevent the business from being continued;
and

(2) any restraint order made against that person
will normally contain an exception enabling it to deal with its assets in the
ordinary course of business.

Duration of order made on application without notice
– rules 4(2) and 27(2)

7.1

RSC Order 115 rules 4(2) and 27(2) provide that,
unless the court otherwise directs, a restraint order made without notice shall
have effect until a day which shall be fixed for a further hearing where all
parties may attend (‘the return date’).

7.2

Where a return date is fixed, it will normally be
no more than 14 days after the date of the order.

7.3

Where no return date is fixed, the court will
always include in the order a provision giving the defendant or anyone affected
by the order permission to apply to vary or discharge the order (see paragraph
14 of the sample form of order).

SECTION II – APPOINTMENT OF RECEIVER

8.1

CPR Part 69, and Practice
Direction 69, apply to the
appointment of a receiver under the 1988, 1994 or 2000 Act, subject to the
provisions of RSC Order 115 rule 8 and rule 23(e) where applicable.

8.2

In particular, CPR rule 69.7, and paragraph 9 of Practice
Direction 69, apply in relation
to the remuneration of the receiver.

8.3

Where no confiscation or forfeiture order has been
made –

(1) an application for the appointment of a
receiver should not be made without notice, unless the application is urgent or
there is some other good reason for not giving notice to the defendant;
and

(2) if the application is made without notice,
the prosecutor’s written evidence should explain the reasons for doing
so.

8.4

Where the court appoints a receiver on an
application without notice in the circumstances set out in paragraph 8.3, the
order will normally limit the receiver’s powers to manage, deal with or sell
property (other than with the defendant’s consent) to the extent that is shown
to be urgently necessary. If the receiver seeks further powers, he should apply
on notice for further directions.

SECTION III – DOMESTIC FREEZING ORDER
CERTIFICATE

Form of domestic freezing order certificate

9.

An example of a domestic freezing order certificate
is set out in the Annex to Council Framework Decision 2003/577/JHA of 22 July
2003 on the execution in the European Union of orders freezing property or
evidence. This Framework Decision is set out in Appendix 2 to this Practice
Direction.

Appendix
1

DownloadExample of a
restraint order prohibiting disposal of assets (PDF – opens in new window) (PDF, 168 KB)

Appendix
2

Council Framework Decision 2003/577/JHA of 22 July
2003 on the execution in the European Union of orders freezing property or
evidence (which contains an example of a domestic freezing order
certificate)

DownloadCouncil Framework Decision 2003/577/JHA of
22 July 2003 (PDF – opens in new window) (PDF, 235 KB)