POCA Restraint Orders: Later Charging Cannot Cure Unreasonable Delay, and Delay Must Be Justified by Evidence
1. Introduction
This decision concerns the mandatory discharge of a restraint order obtained at the investigation stage under POCA.
A restraint order had been made in August 2024 against the respondent (an alleged offender) and, consequentially, against his partner (a non-suspect holding jointly owned property).
The order restrained dealings with “all assets”, with identified assets including the family home and substantial bank balances.
The key issue was whether “proceedings for the offence” were started “within a reasonable time” as required by POCA s.42(7)(a) (and mirrored in s.41(7B)(b)).
His Honour Judge Mayo DL discharged the order on the basis that proceedings had not been commenced within a reasonable time.
The Crown Prosecution Service (“CPS”) sought leave to appeal that ruling.
The Court of Appeal refused leave, emphasising (i) the non-discretionary nature of the discharge duty once unreasonable delay is established, (ii) the irrelevance of consequences such as risk of dissipation, (iii) the inability of later charging to “cure” an earlier unreasonable delay for the purpose of s.42(7)(a), and (iv) the need for the prosecution to justify delay by admissible evidence rather than counsel’s assertions.
2. Summary of the Judgment
- Leave to appeal refused. The Crown failed to show any error of law or principle in the judge’s evaluative assessment.
- Section 69 POCA (“legislative steer”) is inapplicable to the s.42(7)(a) discharge duty because s.42(7)(a) imposes a mandatory duty rather than conferring a discretion.
- Authorisation or commencement of proceedings after an unreasonable time has elapsed does not avoid discharge. The statutory question is whether proceedings were started within a reasonable time.
- Risk of dissipation (and alleged breach of the order) is irrelevant once s.42(7)(a) is engaged; consequences cannot defeat a mandatory discharge.
- Evidence, not assertion. The court criticised the practice of relying on counsel’s unproven assertions about complexity, disclosure burdens, staffing changes, and investigative steps.
- Appellate restraint. The decision reaffirms that appellate intervention is limited for multifactorial evaluative judgments; an appellant must show error of principle or a conclusion outside the permissible range.
3. Analysis
3.1 Statutory Framework and the “Reasonable Time” Duty
POCA permits a restraint order at the investigation stage where the s.40(2) condition is met: (a) a criminal investigation has started, and (b) there are reasonable grounds to suspect benefit from criminal conduct.
Where such an order is made, POCA s.42(7)(a) provides that the court must discharge it “if within a reasonable time proceedings for the offence are not started”.
The 2015 insertion of s.41(7B) reinforces two features:
- a reporting requirement enabling judicial supervision of ongoing investigations; and
- a free-standing duty to discharge for unreasonable delay which applies even absent an application.
In this case, quarterly (in fact sometimes later) updates were provided, but they were criticised as generic and non-specific, leaving the court without a sound evidential basis to assess whether delay was reasonable.
3.2 Precedents Cited and Their Role
The court treated R v S as the central authority.
It restated the core points drawn from R v S, including:
- No discretion: once proceedings are not started within a reasonable time, discharge is mandatory.
- No glossing of “reasonable”: no requirement for “exceptionality”, and no presumption that the investigation must move “as rapidly as possible”.
- All circumstances: “reasonable time” is a fact-sensitive, multifactorial assessment.
- Disclosure realities: front-loading disclosure in complex cases can legitimately affect timing.
- Consequences irrelevant: the impact of discharge on asset preservation does not alter the statutory duty.
- Prosecution evidence may be limited for legitimate reasons, but inadequacy of detail can still matter where it deprives the court of a proper basis to evaluate reasonableness.
Applying R v S, the Court of Appeal accepted the judge’s criticism that the CPS had not put forward adequate evidence explaining what was actually done, why it took as long as it did, and why delay after the file was with the CPS remained unexplained.
Cited (via R v S) for the “practical realities” of criminal investigation and prosecution decision-making. The Court of Appeal accepted that realities matter, but insisted that they must be connected to the case by evidence, not invoked in the abstract.
The Crown Court judge had referred to the confiscation regime’s objective that offenders should not profit from crime. The Court of Appeal accepted that confiscation policy is important, but stressed that policy cannot override a statutory duty to discharge once the “reasonable time” condition is met.
(d) R v B [2008] EWCA Crim 1144 and R v Bogie [2023] EWCA Crim 1280
These were cited for the standard of appellate review of evaluative judgments: intervention is justified only for error of law/principle, failure to consider material matters, considering immaterial matters, or a conclusion outside the reasonable range. That framework underpinned the refusal of leave.
3.3 Legal Reasoning: Key Holdings
(1) Section 69 POCA cannot dilute a mandatory discharge duty
The CPS argued the Crown Court should have applied the s.69 “legislative steer” (asset preservation for confiscation).
The Court of Appeal rejected this on the basis explained in R v S: s.69 guides the exercise of powers, but s.42(7)(a) imposes a duty.
Once the statutory condition (unreasonable delay) is met, discharge must follow.
(2) Later charging does not rescue an earlier unreasonable delay
A central practical point emerges: if a restraint order was obtained on the “investigation started” condition, the prosecution cannot avoid discharge by subsequently authorising or commencing proceedings once a reasonable time has already passed.
Otherwise, the statutory protection would be undermined: the state could maintain intrusive asset restraints during protracted investigations and “fix” the problem only when challenged.
The court also observed that, had the Crown informed the judge that proceedings had actually commenced, it might have sought a fresh restraint order on the alternative statutory footing (i.e. proceedings commenced) requiring the court to exercise a discretion—yet that application was not made.
(3) Alleged breach / risk of dissipation is not relevant to the “reasonable time” question
The CPS suggested the judge should have considered an alleged breach of the restraint order and, more broadly, dissipation risk.
The Court of Appeal held these considerations go to whether restraint is justified within the period permitted by statute, not whether the statutory “reasonable time” has been exceeded.
Once exceeded, the consequences—however serious—cannot prevent discharge.
(4) Evidence-based adjudication is required; “assertion-based” practice is not condoned
The Court of Appeal delivered pointed guidance on procedure and evidential discipline.
Where the prosecution relies on complexity (multiple suspects, phone downloads, disclosure burdens, staffing changes), it should support those propositions with evidence in proper form.
If time is needed, the CPS should seek an adjournment and directions.
The court and the restrained party are entitled to a basis on which “reasonable time” can be evaluated, and not merely counsel’s submissions.
3.4 Impact
- Sharper incentive for timely charging decisions in POCA restraint cases obtained at the investigation stage, especially where there is prolonged CPS review after police files are submitted.
- Practical procedural lesson: prosecutors should anticipate s.42(7)(a) challenges and ensure reporting statements contain enough case-specific information (without compromising investigations) to justify continued restraint.
- Limits of “complexity” arguments: courts will distinguish between truly complex multi-defendant operations and comparatively narrow allegations; generic references to phones/disclosure are insufficient without evidence.
- Post-decision strategy: if proceedings commence late, the prosecution may need to apply for a new restraint order on the “proceedings commenced” condition rather than assume the existing order can be preserved.
4. Complex Concepts Simplified
- Restraint order: a court order freezing (restricting dealings with) assets so they remain available to satisfy a future confiscation order.
- Realisable property: broadly, assets that could be realised (sold/converted) to pay a confiscation order.
- “Investigation stage” restraint (POCA s.40(2)): restraint can be ordered before charge/indictment, but Parliament limited how long such a restraint can endure without proceedings.
- “Reasonable time” (POCA s.42(7)(a)): not a fixed deadline; it depends on circumstances (complexity, investigative steps, disclosure preparation, explanations for delay). But it is a real constraint: if exceeded, discharge is mandatory.
- Mandatory vs discretionary: “must discharge” leaves no balancing exercise once the condition is met; policy objectives (like preventing dissipation) cannot override a statutory duty.
5. Conclusion
[2026] EWCA Crim 730 reinforces the strict statutory protection built into POCA for restraint orders made on the basis of an investigation alone.
If proceedings are not started within a reasonable time, discharge is mandatory, and neither confiscation policy, risk of dissipation, nor later charging can avert that result.
The judgment also sends a clear procedural message: in “reasonable time” disputes, courts require evidence of what happened and why—not generalised assertions of complexity.