Proceeds of Crime Act 2002, section 42

Application, discharge and variation

Part 2 Confiscation: England and Wales

(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;

F216 (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 [F217(8)F217] 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).

[F218 (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.F218]

[F219 (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.F219]

Definitions used in section 42 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 42 17

R v Matthew Hargreaves

[2026] EWCA Crim 58 · 10 February 2026

Applies the provision to an affected third party’s application to vary or discharge restraint orders, but holds that it does not confer an entitlement to determine the underlying tainted-gift dispute at that stage. (see paras [10]; [13]; [17])

R v S

[2019] EWCA Crim 1728 · 17 October 2019Interprets

The court identified persons affected by a restraint order as entitled to apply for its variation or discharge. (see paras [25]; [75]) The court contrasted the discretionary power to vary or discharge an order with the mandatory duty imposed by section 42(7), and identified variation as the route for alleged undue prejudice. (see paras [27]; [75]) The court held that the provision is unqualified and mandates discharge only once proceedings have not begun within a reasonable time. Reasonableness depends on all the circumstances, including complexity and pre-charge disclosure work; consequences of discharge are irrelevant to that threshold assessment. (see paras [27]-[40]; [68]-[80])

Boughton -Fox v R.

[2014] EWCA Crim 227 · 21 February 2014

The court concluded that an application to discharge the restraint order would highly likely, if not inevitably, have succeeded after the indictment was amended. (see paras [60]-[63])

What each judgment says about section 42 is in the case-law panel in the full Act.

Explanatory note

90.Section 42 lays down who may apply for a restraint order under the Act, and sets out criteria like those in the earlier confiscation legislation for the variation or discharge of restraint orders. Under the earlier legislation, only the prosecutor may apply for a restraint order. The Act provides that application may be made by the prosecutor, the Director or an accredited financial investigator.

91.The provision enabling the Director or an accredited financial investigator to apply for a restraint order is accordingly new. Accredited financial investigators are those accredited by the Director in accordance with section 3. They are likely to be employed primarily in force financial investigation units (FIUs) or by Customs and Excise. Under section 68, in order to ensure that the powers are only used in appropriate cases, applications will require the authority of a police officer of superintendent rank or the Customs equivalent or a financial investigator of the kind specified in an order made by the Secretary of State under section 453.

All the explanatory notes for the Act

Amendments and notes

6 notes from legislation.gov.uk

Amendments

  1. F216S. 42(2)(b) repealed (1.4.2008) by Serious Crime Act 2007 (c. 27), s. 94(1), Sch. 8 para. 23, Sch. 14; S.I. 2008/755, art. 2(1)(a)(d) (with arts. 3-14)
  2. F217Word in s. 42(4) substituted (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 32(2); S.I. 2015/820, reg. 3(q)(iii)
  3. F218S. 42(6A)(6B) inserted (1.6.2015) by Serious Crime Act 2015 (c. 9), ss. 12, 88(1); S.I. 2015/820, reg. 3(i)
  4. F219S. 42(7)(8) substituted for s. 42(7) (1.6.2015) by Serious Crime Act 2015 (c. 9), s. 88(1), Sch. 4 para. 32(3); S.I. 2015/820, reg. 3(q)(iii)

Modifications

  1. C21S. 42(2)(c) modified (1.4.2018) by The Proceeds of Crime Act 2002 (References to Welsh Revenue Authority Financial Investigators) Order 2018 (S.I. 2018/196), arts. 1(2), 3, Sch. para. 1

Commencement

  1. I37S. 42 in force at 24.3.2003 by S.I. 2003/333, art. 2, Sch.