A Restraint Order can result in financial devastation.
The authority to apply for a Restraint Order vests in prosecutors and/or financial investigators. The grounds available are broad, the threshold for making an order is relatively low, and the application can be made without notice to the Alleged Offender. In summary, PoCA 2002 is generous to applicant’s and affords minimal protections to Alleged Offenders.
Of course, there are some safeguards included in PoCA 2002, including, for example, a requirement that a Court discharge a Restraint Order if proceedings are not commenced within a ‘reasonable time’ and a requirement for the applicant to report to the Court on the progress of any investigation, which is usually on a six monthly basis. However, these safeguards, in the main, relate to orders made rather than to applications.
Fortunately, the common law has filled the chasm left by legislators. A strew of safeguards have been established in relation to applications, including the duty of candour on the part of applicants, which threshold is difficult to overstate. The common law has also interpreted risk of dissipation and propriety of a without notice application favourably to Alleged Offenders.
In a recent example, Paul O’Donnell was instructed to secure discharge of a Restraint Order against an individual and a company, on a without notice basis. Following detailed written submissions by Mr. O’Donnell, the prosecution conceded that the risk of dissipation did not meet the relevant threshold and the order was discharged by consent, within a matter of days.
It is clear that subject matter expertise is key to the efficient resolution of such matters.