Commentary on Sections Schedule 17: Deferred prosecution agreements Section 46: Restraint orders and legal aid
578.This section amends section 41 of the Proceeds of Crime Act 2002 (“POCA”) which relates to restraint orders; a restraint order is an order made in court to preserve assets where there is a risk of dissipation ahead of any court hearing or enforcement activity relating to criminal conduct (see section 40 of the POCA). Subsection (2) provides that an exception must be made to a restraint order to enable relevant legal aid payments to be made. A relevant legal aid payment is that which a person specified in the restraint order is obliged to make by regulations made under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 for legal aid provided in relation to an offence which falls within section 41(5) of the POCA. Subsection (5) inserts new subsections (5A) and (5B) into section 41 of the POCA which provide that a legal aid exception to a restraint order must be made subject to prescribed restrictions as to the amount of any payments and as to the circumstances in which payments may be made, and subject to any other prescribed conditions. The court retains the power to impose conditions on exceptions to restraint, whether relating to legal aid payments or otherwise. Subsection (6) provides that regulations under new subsection (5A) will be made by the Secretary of State. Subsection (7) amends section 459 of the POCA to provide that regulations made under new section 41(5A) of that Act will be subject to the affirmative resolution procedure.