Her Majesty's Advocate v. WMM [2005] ScotCS CSOH_130 (22 September 2005)

Her Majesty's Advocate v. WMM [2005] ScotCS CSOH_130 (22 September 2005)

A restraint order under section 120 of the Proceeds of Crime Act 2002 should contain a proviso for reasonable living expenses from the moment it is granted, unless specific circumstances justify exclusion; the order must not cause unreasonable hardship to an unconvicted respondent.

Citation
[2005] ScotCS CSOH_130
Parties
Petitioner: THE RIGHT HONOURABLE COLIN D BOYD, Q. C., Her Majesty's Advocate; Respondent: W M M
Jurisdiction
Scotland
Judgment Date
22 September 2005
Procedural Posture
Petition for Restraint Order / Ex Parte Application
Outcome
Restraint order granted in modified terms
Legal Topics
Restraint Orders, Reasonable Living Expenses, Asset Freezing, Confiscation Proceedings
Criminal Law Proceeds of Crime Restraint Orders Reasonable Living Expenses Asset Freezing Confiscation Proceedings

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Parties

THE RIGHT HONOURABLE COLIN D BOYD, Q. C., Her Majesty's Advocate

Petitioner

W M M

Respondent

Procedural Posture

Petition for Restraint Order / Ex Parte Application

Legal Issues

  1. 1 Should a restraint order under section 120 of the Proceeds of Crime Act 2002 include a proviso for reasonable living expenses?
  2. 2 Is it appropriate to grant a restraint order in absolute terms at the ex parte stage?

Ratio Decidendi

A restraint order under section 120 of the Proceeds of Crime Act 2002 should contain a proviso for reasonable living expenses from the moment it is granted, unless specific circumstances justify exclusion; the order must not cause unreasonable hardship to an unconvicted respondent.

Court Disposition

Restraint order granted in modified terms

Orders

  • Respondent permitted to make payments for ordinary living expenses up to £250 per week and withdraw funds for that purpose from the named account.
  • Both parties granted leave to apply to the court to vary the order.