Restraint Orders: a new route to funding legal expenses (not yet in force)

The Crime and Policing Act 2026 is set to introduce a raft of important changes to the criminal confiscation regime in England and Wales. Once the relevant provisions are brought into force, a person affected by a restraint order under the Proceeds of Crime Act 2002 (POCA) may be able to ask the Crown Court to vary that order so that restrained funds can be used to meet reasonable legal expenses.

This represents a significant break from the previous position. Restraint orders are designed to preserve assets for potential confiscation, but they can leave individuals and businesses unable to access funds needed to obtain legal advice. The new framework creates a controlled route for legal expenses to be funded from restrained assets, subject to safeguards and court oversight.

What is changing?

Under section 41 of POCA, the Crown Court can make a restraint order prohibiting a specified person from dealing with realisable property. A restraint order may include exceptions, such as provision for reasonable living expenses or the continuation of a trade, business, profession or occupation.

Previously, it was not possible to pay legal expenses connected with the offence underlying the restraint order. The Crime and Policing Act 2026 changes that position by introducing a new statutory mechanism for legal expenses exceptions in specified circumstances.

The new legal expenses exception

The Act inserts a new section 41ZA into POCA. Where the court permits an exception for legal expenses, the exception must be limited to expenses that have been reasonably incurred or will reasonably be incurred. The court must also specify the total amount that may be released for legal expenses and may impose conditions prescribed by regulations made by the Lord Chancellor.

Who can apply?

A variation application may be made by the person who applied for the restraint order or by any person affected by it. In practice, this means that a defendant, a recipient of a tainted gift, or another affected party may be able to ask the Crown Court to vary the restraint order so that funds can be released for legal expenses.

How is an application made?

An application to vary a restraint order must be made to the Crown Court. The Criminal Procedure Rules require the application to be in writing and allow it to be supported by a witness statement. The application and any supporting evidence must be lodged with the court. The applicant must also serve the application and any witness statement on the person who applied for the restraint order and on any other person prohibited from dealing with realisable property by the order, unless the court directs otherwise. Service must usually take place at least two business days before the hearing.

What evidence is likely to be needed?

Although the rules contain detailed requirements for applications concerning living expenses, they do not set out an equivalent checklist for legal expenses applications. However, an applicant should expect the court to scrutinise the request carefully. In most cases, the applicant should be ready to explain why legal advice or representation is required, what work needs to be done, how the costs have been calculated, and why the amount sought is reasonable. Evidence from the legal representatives, such as an estimate of fees or a breakdown of anticipated work, is likely to assist.

Why does this matter?

The change is likely to be welcomed by those affected by restraint orders. It recognises that access to legal advice can be essential where assets have been frozen, while still preserving the court’s ability to protect the confiscation regime. The practical impact will depend on the regulations made by the Lord Chancellor and on how the Crown Court applies the new provisions in individual cases.

For individuals, businesses and professional advisers dealing with POCA restraint orders, the message is clear: once the provisions are in force, applications for legal expenses will need to be carefully prepared, properly evidenced and focused on demonstrating reasonableness.

Sonn Macmillan Walker is ranked for its POCA Work & Asset Forfeiture work in the Chambers and Partners 2026 guide.

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