Management Receivers
When deemed necessary to preserve a suspect’s assets, by preventing them from being sold or otherwise dissipated, a Restraint Order may be obtained from the Court prior to criminal proceedings which may lead to conviction and, subsequently, the making of a Confiscation Order under theProceeds of Crime Act 2002 (‘POCA’).
Having obtained a Restraint Order, the prosecuting authority may apply to the court for the appointment of a Management Receiver whose role is to manage the assets of a suspect before a Confiscation Order has been made.
Additionally, a Management Receiver may realise the assets in order to discharge the debt in the event of refusal or failure on behalf of the suspect or defendant to comply with a Court Order.
Whilst a Restraint Order has to be in place before a Management Receiver can be appointed, application to the court can be made at the same time for both.
John Veale of KANGS comments upon the appointment and powers of a Management Receiver.
Appointment of a Management Receiver
Section 48 of POCA states that if the Crown Court makes a Restraint Order, the Court may also appoint a Management Receiver in respect of the assets to which the Restraint Order applies.
Powers of a Management Receiver
The powers of a Management Receiver are contained in Section 49 of POCA and includes power to:
- take possession of the property;
- manage or otherwise deal with the property;
- start, carry on or defend any legal proceedings in respect of the property;
- realise so much of the property as is necessary to meet the receiver’s remuneration and expenses.
The Court can also grant the Receiver power to enter any premises in England and Wales and to do any of the following:
- search for or inspect anything authorised by the court;
- make or obtain a copy, photograph or other record of anything so authorised;
- remove anything which the receiver is required or authorised to take possession of.
The Court may by order authorise the Receiver to do any of the following:
- hold property;
- enter into contracts;
- sue and be sued;
- employ agents;
- execute powers of attorney, deeds or other instruments;
- take any other steps the court thinks appropriate;
- obtain possession of property from another:
- obtain payment form a third party in respect of a beneficial interest held by the defendant or the recipient of a tainted gift;
Some of these powers cannot be applied if:
- the property is already subject to a charge under other legislation including Section 9 of the Drug Trafficking Act 1986 and
- section 78 of the Criminal Justice Act 1988.
If exercising the powers in relation to property in which a third party may have an interest or is a tainted gift, the Court must give persons holding such interests an opportunity to make representations to it.
How We Can Help
A Restraint Order and the appointment of a Management Receiver will, more likely than not, have been obtained by virtue of an ex-parte application, i.e. without notice having been given of such intention.
The Court will not have heard any representations from the person against whom the Order has been made and, accordingly, grounds may exist for it to be challenged at Court on a number of grounds.
For example, a Restraint Order effectively freezes all assets and, therefore, it will probably allow for a fixed sum to cover everyday living expenses to be withdrawn from an agreed account. Such allowance may be totally inadequate and damaging to the survival of a business.
A Variation Order may be sought from a court should it be considered financially prudent to pursue such an application.
If you become subject to Restraint Order or any other Order obtained under POCA, you should not hesitate to seek professional advice.
The Team at KANGS is highly regarded for work conducted on behalf of clients faced with Restraint Proceedings, Asset Seizure and POCA proceedings of every nature and would be delighted to hear from you.
We welcome enquires by:
Telephone: 0333 370 4333
Email: info@kangssolicitors.co.uk
