ANNEX B: OVERVIEW OF THE CONFISCATION PROCESS UNDER POCA 2. Restraint 2.1 Basic concepts
Effectively a restraint order freezes a defendant’s assets so that they may be used to satisfy a confiscation order and prohibits a specified person(s) from dealing with any realisable property held by them. These specified persons can include third parties holding property. A restraint order may apply to all realisable property held by the defendant wherever it is in the world. This includes cash and any realisable property transferred to the defendant after the order is made and any other property which the defendant may hold but which the investigator is unaware of. Subject to the precise terms of the restraint order, the defendant may be responsible for returning all property held abroad to the jurisdiction of the court.  Anyone who holds property jointly with the defendant or on their behalf may be specifically restrained from dealing with such property or property deemed to be a tainted gift. The court can make any order it believes is appropriate to ensure that a restraint order is effective.
An order cannot restrain property of greater value than the alleged benefit of the criminal conduct.
The court must discharge the restraint order if criminal proceedings do not commence within a reasonable time, an application by the prosecutor for reconsideration of the case or benefit has not been made, an application for confiscation where the defendant has absconded has not been made or upon conclusion of any proceedings. The court must also discharge the restraint order when a confiscation order is not made or the order is satisfied.