Proceeds of Crime Act 2002, section 41

Restraint orders

Part 2 Confiscation: England and Wales

(1)If any condition set out in section 40 is satisfied the Crown Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him.

(2)A restraint order may provide that it applies—

(a)to all realisable property held by the specified person whether or not the property is described in the order;

(b)to realisable property transferred to the specified person after the order is made.

[F205 (2A)A restraint order must be made subject to an exception enabling relevant legal aid payments to be made (a legal aid exception).

(2B)A relevant legal aid payment is a payment that the specified person is obliged to make—

(a)by regulations under section 23 or 24 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and

(b)in connection with services provided in relation to an offence which falls within subsection (5),

whether the obligation to make the payment arises before or after the restraint order is made.F205]

(3)A restraint order may be made subject to [F206 other F206] exceptions, and an exception may in particular—

(a)make provision for reasonable living expenses and reasonable legal expenses;

(b)make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;

F207 (c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)[F208 But where an exception to a restraint order is made under subsection (3), itF208] must not make provision for any legal expenses which—

(a)relate to an offence which falls within subsection (5), and

(b)are incurred by the defendant or by a recipient of a tainted gift.

(5)These offences fall within this subsection—

(a)the offence mentioned in section 40(2) or (3), if the first or second condition (as the case may be) is satisfied;

(b)the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.

[F209 (5A)A legal aid exception—

(a)must be made subject to prescribed restrictions (if any) on—

(i)the circumstances in which payments may be made in reliance on the exception, or

(ii)the amount of the payments that may be made in reliance on the exception,

(b)must be made subject to other prescribed conditions (if any), and

(c)may be made subject to other conditions.

(5B)Any other exception to a restraint order may be made subject to conditions.F209]

(6)Subsection (7) applies if—

(a)a court makes a restraint order, and

(b)the applicant for the order applies to the court to proceed under subsection (7) (whether as part of the application for the restraint order or at any time afterwards).

(7)The court may make such order as it believes is appropriate for the purpose of ensuring that the restraint order is effective.

[F210 (7A)Subsections (7B) and (7C) apply where the Crown Court makes a restraint order (by virtue of the first condition in section 40) as a result of a criminal investigation having been started in England and Wales with regard to an offence.

(7B)The court—

(a) must include in the order a requirement for the applicant for the order to report to the court on the progress of the investigation at such times and in such manner as the order may specify (a “reporting requirement”), and

(b)must discharge the order if proceedings for the offence are not started within a reasonable time (and this duty applies whether or not an application to discharge the order is made under section 42(3)).

(7C)The duty under subsection (7B)(a) does not apply if the court decides that, in the circumstances of the case, a reporting requirement should not be imposed, but the court—

(a)must give reasons for its decision, and

(b)may at any time vary the order so as to include a reporting requirement (and this power applies whether or not an application to vary the order is made under section 42(3)).F210]

[F211 (7D)In considering whether to make an order under subsection (7), the court must, in particular, consider whether any restriction or prohibition on the defendant's travel outside the United Kingdom ought to be imposed for the purpose mentioned in that subsection.F211]

(8)A restraint order does not affect property for the time being subject to a charge under any of these provisions—

(a)section 9 of the Drug Trafficking Offences Act 1986 (c. 32);

(b)section 78 of the Criminal Justice Act 1988 (c. 33);

(c)Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));

(d)section 27 of the Drug Trafficking Act 1994 (c. 37);

(e)Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).

(9)Dealing with property includes removing it from England and Wales.

[F212 (10) In this section “prescribed” means prescribed by regulations made by the Secretary of State. F212]

Definitions used in section 41 1

the court

(10) In this section, sections 120 to 140 and Schedule 3 “the court” means—

(a)the Court of Session, where a trial diet or a diet fixed for the purposes of section 76 of the Procedure Act in proceedings for the offence or offences concerned is to be, is being or has been held in the High Court of Justiciary;

(b)the sheriff exercising his civil jurisdiction, where a diet referred to in paragraph (a) is to be, is being or has been held in the sheriff court.

Defined in s.119(10) · see it in the full Act

Cases considering section 41 45

R v Luckhurst

[2022] UKSC 23 · 20 July 2022Limits

Confers discretion to create exceptions for reasonable living, legal and business expenses. Independent civil legal expenses fall within this discretion and must be assessed for reasonableness (see paras [30]; [34]-[36]; [42]). The prohibition covers legal expenses for the relevant criminal offence and for confiscation, restraint or other proceedings bound up with the criminal process. It does not cover independent civil causes of action merely because they share facts or evidence with that offence (see paras [24]-[26]; [40]; [42]). Defines the offences to which the legal-expenses prohibition applies by reference to the offence satisfying the relevant condition in section 40. The Court treated this identified offence, rather than factual overlap alone, as controlling (see paras [3]; [25]).

R v Matthew Hargreaves

[2026] EWCA Crim 58 · 10 February 2026Interprets

Cited only. Interprets the restraint-order power as not requiring a prior merits determination of the existence or extent of a contested tainted gift. A restraint order is a holding order. (see paras [15]-[16])

Luckhurst, R. v

[2020] EWCA Crim 1579 · 24 November 2020Interprets

Section 41(1) provides the Crown Court power to prohibit dealing with realisable property once a section 40 condition is satisfied. It supplied the basis of the restraint order under review. (see para [21]) Section 41(3) confers a discretion to create exceptions to a restraint order. That discretion must be exercised consistently with the statutory preservation objective. (see paras [21]; [32]-[33]; [42]) Reasonable living expenses require an objective, fact-sensitive assessment. Prior lifestyle is relevant but does not create an entitlement to its continuation, and unsecured credit does not itself prevent an expense from being permitted. (see paras [27]; [32]-[36]; [54]) The absolute prohibition covers legal expenses related to the offence, but not independent civil proceedings merely because they overlap factually with the criminal allegations. Such expenditure remains discretionary under section 41(3). (see paras [41]-[52]; [62])

25 more judgments, and what each says about section 41, are in the case-law panel in the full Act.

Explanatory note

88.Section 41 explains the nature and effect of a restraint order. It is an order prohibiting a specified person from dealing with any realisable property held by him (realisable property is defined in section 83). Thus it may be made both against the defendant or person under investigation, and any other person holding realisable property. Subsection (3) provides for exceptions to be made for reasonable living and legal expenses and for carrying on any trade, business, profession or occupation. Subsection (4) prevents funds under restraint from being released to the defendant or the recipient of a tainted gift for legal expenses incurred in relation to the offences in respect of which the restraint order is made. However, public funding for legal expenses, on the standard conditions, will be available to both instead.

89.Subsection (7) gives the court the power to make such order as it believes is appropriate for the purpose of ensuring that a restraint order is effective. The provision ensures that the Crown Court has general powers available to it such as the residuary powers currently available to the High Court. These will include, for example, the power to order a person to disclose his or her assets. Failure to comply with a restraint order or an order provided for in subsection (7) will fall to be treated as contempt of the Crown Court. Subsection (8) provides that a restraint order cannot be made in relation to any property subject to a charging order under any of the earlier confiscation legislation, reflecting the principle that a restraint order and a charging order should not be made in relation to the same property.

All the explanatory notes for the Act

Amendments and notes

9 notes from legislation.gov.uk

Amendments

  1. F205S. 41(2A)(2B) inserted (1.6.2015) by Crime and Courts Act 2013 (c. 22), ss. 46(2), 61(2); S.I. 2015/813, art. 3(b)
  2. F206Word in s. 41(3) inserted (1.6.2015) by Crime and Courts Act 2013 (c. 22), ss. 46(3)(a), 61(2); S.I. 2015/813, art. 3(b)
  3. F207S. 41(3)(c) omitted (1.6.2015) by virtue of Crime and Courts Act 2013 (c. 22), ss. 46(3)(b), 61(2); S.I. 2015/813, art. 3(b)
  4. F208Words in s. 41(4) substituted (1.6.2015) by Crime and Courts Act 2013 (c. 22), ss. 46(4), 61(2); S.I. 2015/813, art. 3(b)
  5. F209S. 41(5A)(5B) inserted (20.3.2015 for specified purposes, 1.6.2015 in so far as not already in force) by Crime and Courts Act 2013 (c. 22), ss. 46(5), 61(2); S.I. 2015/813, arts. 2(a)(ii), 3(b)
  6. F210S. 41(7A)-(7C) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 11(2), 88(1); S.I. 2015/820, reg. 3(h)
  7. F211S. 41(7D) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 31; S.I. 2015/820, reg. 3(q)(iii)
  8. F212S. 41(10) inserted (20.3.2015) by Crime and Courts Act 2013 (c. 22), ss. 46(6), 61(2); S.I. 2015/813, art. 2(a)(iii)

Commencement

  1. I36S. 41 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch. (with arts. 5, 10-13)