In an article that appeared in the In Practice section of the Gazette (see [2009] Gazette, 30 April, 16), John Masters questions whether the Crown Prosecution Service has locus standi to apply for a restraint order under the Proceeds of Crime Act 2002 (POCA 2002) while a case is still at the pre-charge investigation stage and a prosecution has not yet commenced.

Pre-charge restraint applications fall under condition 1 of section 40 of POCA 2002, which requires that (a) a criminal investigation has been started in England and Wales with regard to an offence, and (b) there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct.

Section 40(9) of POCA 2002 specifically provides that, when the first condition is satisfied, any references in part 2 to the defendant are to the alleged offender and that any references to the prosecutor are to the person the court believes is to have conduct of the proceedings. The prosecutor is, therefore, a permitted applicant for a pre-charge restraint order under section 42(2)(a) of part 2 of POCA 2002.

Mr Masters asks how the court is to know who the prosecutor will be when an investigation has yet to be completed. Section 3(2)(a) of the Prosecution of Offences Act 1985 provides that it is the duty of the director of public prosecutions to take over the conduct of all criminal proceedings, other than specified proceedings, instituted on behalf of a police force and this provides sufficient basis for the court’s belief that the CPS is to be the prosecutor when it makes applications for pre-charge restraint orders on behalf of the police.

Mike Kennedy, chief operating officer, Crown Prosecution Service