England and Wales High Court (Administrative Court) Decisions

"(a) any property held by the defendant; and
(b) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Part of this Act."

Subsection (10) provides that a gift is caught by that Part of the Act if-

"(a) it was made by the defendant at any time after the commission of the offence or, if more than one, the earliest of the offences to which the proceedings for the time being relate; and
(b) the court considers it appropriate in all the circumstances to take the gift into account."

5. "Property" is widely defined by section 102(1), and includes money and things in action. Section 102(7) is as follows:

"Property is held by any person if he holds an interest in it."

It follows that a joint bank account of a defendant and another person, in which they both have an interest, is property held by the defendant, and is therefore disposable property for the purposes of the Act. The other person, who also holds that property, may therefore be prohibited from dealing with that bank account under section 77.
6. There are therefore two possible bases under the 1988 Act for making a restraint order prohibiting the wife of a defendant from dealing with a bank account in their joint names:
(a) that the credit balance in the bank account constitutes realisable property; and
(b) that the wife's interest in the joint bank account may be the result of a gift or gifts caught by Part VI of the 1988 Act.
On the same bases, real property in joint names may also be made the subject of a restraint order prohibiting both husband and wife from dealing with the property. Of course, in many cases basis (b) will be inapplicable, either because no gift has been made (as where the wife's interest results from her own earnings) or because of the requirement of section 74(10) that the gift must have been made after the earliest of the offences in question. In addition, if a joint bank account is used for domestic expenses and has a modest credit balance, it is debatable whether the payments into the account made by the defendant are a "gift" for the purposes of Part VI of the Act, or whether the court would consider it appropriate to take it into account (see section 74(9)(b)).
7. If, as in the present case, a wife is to be prohibited from dealing with any property, the order should make clear on its face that she is the subject of the order. In the case of civil proceedings, this may be done by making her a respondent to the application, and a defendant in the proceedings. RSC Order 115 rule 2A would seem to prevent making the wife, against whom no criminal proceedings have been instituted and, as far as I am aware, is not to be charged, a defendant to proceedings such as the present. However, the "Notice to the Defendant" at the beginning of the restraint order should be supplemented so as to become "Notice to the Defendant and to [the wife]", giving the full names of the wife. It is not sufficient for the application of the order to the wife to be found only in the operative paragraphs of the order.
8. In addition, unless there is evidence that the wife has adequate separate means, it is essential that the order permit her to spend an adequate weekly sum on ordinary living expenses and to pay for her separate legal advice and representation. It is not appropriate to rely on her right to apply to vary the order for this purpose.
9. Lastly, the order should include an undertaking by the prosecutor to serve the order and the affidavit or witness statement in support on the wife as soon as practicable. Such service would be necessary apart from the specific provisions of the rules, but RSC Order 15 rule 4(3) makes such service mandatory. It provides:

"Where a restraint order is made the prosecutor shall serve copies of the order and of the witness statement or affidavit in support on the defendant and on all other named persons restrained by the order and shall notify all other persons or bodies affected by the order of its terms."