R v S

Under section 42(7) of the Proceeds of Crime Act 2002, a restraint order must be discharged if proceedings have not begun within a reasonable time. The statutory test is unqualified. It does not require the prosecutor to act as rapidly as possible, nor does it impose an exceptional-circumstances threshold.

Reasonableness requires an evaluation of all the circumstances. Relevant matters commonly include elapsed time, explanations for delay, the pre-order investigation, the order’s scope, the complexity of the investigation and potential proceedings, and any assistance or obstruction. In a complex multi-suspect case, the assessment may properly allow for necessary pre-charge investigation and front-loaded disclosure preparation. An all-assets order is important but is not decisive, and the consequences of mandatory discharge are irrelevant to the threshold question.

Following a money-laundering investigation, the Crown Court made an all-assets restraint order against S under the Proceeds of Crime Act 2002. Nearly 11 months later, and before any charging decision, the judge discharged it under section 42(7), holding that proceedings had not been started within a reasonable time.

The Crown Prosecution Service appealed. It contended that the judge had applied an unduly demanding standard and had failed to account for the complexity of the investigation, the numerous suspects, and the work needed to prepare disclosure before charge. S and his trustees in bankruptcy relied on the delay and the consequences of the continuing all-assets order.

The central issue was whether the judge had correctly applied the reasonable-time requirement in section 42(7).

1. Appeal allowed. The Crown Court’s order discharging the restraint order was reversed. The restraint order was to remain in force.

2. Section 42(7) of the Proceeds of Crime Act 2002 requires discharge where proceedings have not started within a reasonable time. The requirement is mandatory once its condition is satisfied. The words must be applied without a gloss: they impose neither an obligation to proceed as rapidly as possible nor a requirement that delay be exceptional.

3. Reasonableness is assessed in all the circumstances. Relevant considerations ordinarily include elapsed time; the explanations for it; the extent of the investigation before the order; the nature and scope of the order; the complexity of the investigation and potential proceedings; and any assistance or obstruction. The factors are not exhaustive and their weight varies with the case.

4. The judge was entitled to treat the all-assets nature of the order as material. However, she treated it in substance as decisive and imported an inappropriate analogy with the duty to act expeditiously in custody-time-limit cases. That imposed a higher standard than section 42(7).

5. The judge also failed to evaluate a material consideration: the prosecution’s duties to investigate and prepare disclosure before charge. In a complex case involving several suspects, reasonable time may allow for proper schedules of unused material and other front-loaded disclosure work. The assessment cannot be confined to whether a charging decision concerning one suspect could have been made in isolation.

6. The effects of discharge, including the possible consequences in bankruptcy, did not bear on whether the statutory reasonable-time condition had been met. Those matters could instead be addressed through an application to vary the order. Although the prosecution’s evidence and progress reporting had been unsatisfactory, the elapsed period was not, without more, plainly unreasonable. A remittal would serve no purpose; an appropriately specific progress report was required, and a fresh application for discharge remained available.

• Court of Appeal (Criminal Division): Allowed the Crown Prosecution Service’s appeal, reversed the discharge of the restraint order, and ordered that it stand.
• Crown Court, Central Criminal Court: Discharged the restraint order under section 42(7) of the Proceeds of Crime Act 2002 on the basis that proceedings had not begun within a reasonable time.