Restraint Orders: Varying Restraint Orders for Civil Proceedings – a Welcome Clarification
| Author | Christopher Kirkbride |
| DOI | http://doi.org/10.1177/00220183221128198 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Case Notes |
Restraint Orders: Varying Restraint
Orders for Civil Proceedings –a
Welcome Clarification
R v Luckhurst [2022] UKSC 23
Keywords
Restraint, variation, related proceedings, legal advice or representation
Facts
Luckhurst, a former professional sportsman, set himself up as an independent financial adviser in the
1990s. The company through which he most recently operated his work was dissolved on 5th October
2021. In June 2014, along with two others, he incorporated Aspirations Europe Ltd, which continues
to operate. This was a vehicle through which investors were introduced to a separate investment
scheme operated by two other individuals. In 2016, the investors commenced civil proceedings
against Luckhurst and others, alleging that it was a fraudulent scheme. To prevent dissipation or
removal of assets, a freezing order was obtained against Luckhurst which allowed a sum for ordinary
living expenses together with reasonable sums for legal advice and representation. A settlement, to
which Luckhurst was not party, was agreed in December 2017, and the freezing order was discharged.
The civil proceedings continued against Luckhurst. By this point, the police were investigating
whether a crime had been committed in the investment scheme, and shortly after the freezing order
was discharged, the Crown Prosecution Service (‘CPS’) applied for a restraint order (section 41,
Luckhurst £250 a week for ordinary living expenses, but with scope for variation with written agreement
of the CPS. This duly occurred on a number of occasions following the original restraint order being
made. An offer of settlement in respect of the outstanding civil claims involving Luckhurst was made
in April 2019 on what the Court of Appeal described as, ‘potentially attractive terms’([2020] EWCA
Crim 1579, at [13]). The estimated cost of legal advice in relation to the settlement was £3000.
Luckhurst sought a variation of the restraint order to release sums to pay for the advice.
sonable legal expenses’, but section41(4), PoCA 2002 does not permit such provision for legal expenses
which ‘relate to an offence’for which the restraint order was obtained. In consequence, at first instance,
the judge refused the variation on the basis that the civil proceedings on which the settlement was pro-
posed had, ‘its factual origins in the fraud which is the subject matter of the criminal prosecution’.
Luckhurst appealed. The Court of Appeal (Popplewell, LJ, McGowan, J and Molyneux, HHJ; [2020]
EWCA Crim 1579) unanimously allowed the appeal. The CPS appealed. The certified question for
the Supreme Court was:
Does section41(4) of POCA preclude an exception to a restraint order to make provision for reasonable legal
expenses incurred by the defendant or the recipient of a tainted gift where those expenses incurred by the
defendant or the recipient of a tainted gift are in respect of civil proceedings founded on the same or
Case Note
The Journal of Criminal Law
2022, Vol. 86(5) 364–367
© The Author(s) 2022
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DOI: 10.1177/00220183221128198
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