(a) criminal investigation or proceedings have been started (and
not concluded) in the requesting country with regard to an
offence; and
(b) Relevant property in England and Wales is identified in the
request; (i.e. property which may be required to satisfy an
external order) and
(a) there is reasonable cause to believe that the defendant named
in the request has benefited from his criminal conduct
Although not set out in the legislation, the requirement in domestic restraint
order applications to show a risk of dissipation of assets also applies to
applications for restraint orders pursuant to an external request.
Furthermore, the UK courts are obliged to act compatibility with the European
Convention on Human Rights and to interpret legislation in accordance with
that Convention. Hence if there is no realistic prospect of a fair trial in the
requesting state, so that, accordingly, there is no reasonable possibility of the
UK court giving effect to an external (confiscation) order, the Court will use its
discretion to refuse to grant the restraint order. However, it should be noted
that this situation will rarely arise: any Human Rights issues concerning the
legal system in the requesting state will normally be considered at the
confiscation (external order) stage, by which time the court can assess known
facts rather than risks.