Court of Appeal holds restraint orders must be discharged where there is an unexplained delay

The case of R v Jay Bewley [2026] EWCA Crim 730 will be a welcome consideration for defence practitioners who often feel powerless under the weight of inordinate delay in the modern criminal justice system. This case is a reminder that even in serious criminal investigations, investigators cannot justify delay with generic, frequently repeated statements, which feature all too often in prosecutorial justifications.

The details of this case are that Mr Bewley found himself under investigation as part of a large-scale drugs operation codenamed “Operation Gosling”, targeting the alleged supply of Class A and B drugs. The investigation involved a number of individuals; the principal one being believed to be Joshua Peachment. Mr Bewley was identified as having been involved with Mr Peachment by reason of four text messages passing between them on a single day, believed to be 7 January 2024.

Mr Bewley, then aged 36, had been arrested at his home address in Daventry, a property which was jointly owned with his partner Lauren Roche, on 25 July 2024 on suspicion of conspiracy to supply Class A drugs. Recovered from his property was a quantity of cash, yet to be counted, three watches and “a quantity of exhibits in relation to … cannabis”.

In interview Mr Bewley had explained that the cannabis found was for his own use and that the watches were fake. He explained that he was a self-employed block paver, and that he had jobs which were paid in cash.

In August 2024, the Crown applied for a restraint order under the Proceeds of Crime Act 2002 (POCA), with a view to freezing Bewley’s assets including the home he held jointly with Ms Roche (who was not a suspect), a bank account holding around £168,000, and personal items.

At that time, Mr Bewley had completed a financial questionnaire in which he had disclosed the bank account in his own name The value of the Daventry property was some £347,000, and it was subject to a mortgage of some £177,000. The Financial Investigator outlined in a statement supporting the application that enquiries would be undertaken by the police to establish the authenticity of the watches, and that information had already been requested from HMRC to verify the information that Mr Bewley had given about his employment.

The making and discharge of restraint orders is governed by the terms of sections 40 to 47 of POCA. Section 40 sets out the various conditions to be fulfilled before a restraint order may be made namely:

that a criminal investigation has been started in England and Wales with regard to an offence, and
that there are reasonable grounds to suspect that the alleged offender has benefited from his criminal conduct.

Accordingly, the conditions in section 40 were deemed to be met and a restraint order was made thereby restraining Mr Bewley’s assets.

However, Section 41 further provides that the court

(a) must include in the order a requirement for the applicant for the order to report to the court on the progress of the investigation at such times and in such manner as the order may specify (a ‘reporting requirement’), and

(b) must discharge the order if proceedings for the offence are not started within a reasonable time.

In accordance with the above section, as well as restraining assets, the restraint order required that , “the prosecutor must report on the progress of the investigation every three months by way of a further statement to be served on the court and on the alleged offender, and any other person to whom this order is addressed”, ostensibly so that the court could gauge whether proceedings were being commenced within a reasonable time frame.

Initially, the prosecution reported that “phones were analysed, evidence reviewed, and enquiries conducted”.

By June 2025, it was further reported, “All lines of enquiry in relation to Bewley have been completed and the evidence has been reviewed. A file is being submitted to the CPS to seek charging advice, and the OIC is in consultation with the CPS lawyer regarding timescales.”

This was deemed to be a key date as regards to the ability to progress proceedings.

By November 2025, the Financial Investigators statement said, “All lines of enquiry in relation to Bewley have been completed and the evidence has been reviewed. A file was submitted to CPS to seek charging advice in June 2025. However, police have since been made aware that the reviewing lawyer is no longer working on this case, and the case has been re-allocated to a different lawyer. Since the last update, a further suspect has been added to the case, and therefore there has been further delay. The OIC has confirmed, following consultation with CPS, that new timescales have been agreed whereby CPS will respond by 18 December 2025.”

By March 2026, a final quarterly report iterated, “… all lines of enquiry in relation to Bewley have been completed and the evidence has been reviewed. The OIC has confirmed that following a further consultation and meeting with CPS that new timescales had been agreed, and it is anticipated that CPS will respond by March 2026. The evidence is currently being reviewed, and the charges are being finalised.”

However, despite the pronouncement in the reporting statement of June 2025, criminal proceedings had still not been instituted. Consequently, Mr Bewley made an application to discharge the restraint order suggesting that it was clear that the police had completed their enquiries by June 2025 and that since then the CPS had been guilty of unreasonable delay in providing the police with charging advice.

In the Nottingham Crown Court His Honour Judge Mayo in discharging the restraint order found that the delay was unreasonable, that the CPS explanations were too vague, generic and lacking detail and didn’t explain the delay, and accordingly there was no strong evidence justifying continued restraint.

HHJ Mayo was not told that by the time of the application to discharge the CPS had in fact commenced proceedings against Mr Bewley.

The CPS appealed arguing on appeal amongst other things that:

The case was complex (involving multiple suspects and large volumes of evidence)
Charges had finally been authorised in April 2026 and that the judge failed to consider the broader purpose of POCA was to preserve assets for confiscation.

In considering the appeal, and dismissing it, the Court of Appeal emphasised the mandatory nature of sections 41 and 42,as follows,

“If there has been the passage of more than a reasonable time for the commencement of proceedings, there is a statutory duty to discharge the order, whatever may be the consequences for the ability of the prosecution to enforce a restraint order in due course against realisable assets.”

Similarly, the CPS argument that charges were eventually authorised in April 2026 was rejected outright suggesting that starting proceedings late did not undo earlier unreasonable delay.

Perhaps the most powerful aspect of the judgment is its criticism of prosecutorial practice.

The CPS relied heavily on broad claims concerning the complexity of the investigation, large volumes of evidence, and multiple suspects. The Court of Appeal in delivering its judgment upheld the Judge at first instance’s ruling and his reasoning, delivering a stinging rebuke-:

“the evidence which was put forward on behalf of the CPS in relation to what was happening by way of investigation over the relevant period of time, and why, was very sparse, generic and largely uninformative.”

Comment

A striking feature of the decision is what the Court of Appeal refused to consider.

The CPS attempted to argue that not only had criminal proceedings been brought against Mr Bewley by the time of the appeal, but further that assets might be dissipated which on conviction would make confiscation becomes harder. Notwithstanding these facts, the Court of Appeal were insistent that once the statutory criteria was met the Court must discharge the order if proceedings for the offence are not started within a reasonable time. This is regardless of the consequences, thereby sending a strong message both practically and constitutionally.

Ultimately, Prosecutors cannot rely on delay without explanation and must produce clear evidence-based justifications. Administrative issues such as staff changes and workloads won’t excuse prolonged inaction.

The power to restrain assets is not a licence for delay, and if prosecutors/investigators do not move quickly enough and cannot properly explain why, courts should not permit continued restraint.

The writer hopes that this judicial attitude will permeate through the remainder of the Criminal Justice System.