Author Archives: Mike Massen

Cohen Cramer Solicitors

Section 23 Proceeds of Crime Act 2002

Section 23 Proceeds of Crime Act 2002. When an individual has been convicted of a criminal offence that comes within the scope of Schedule 2 of the Proceeds of Crime Act 2002, they may subsequently find themselves subject to confiscation proceedings. Confiscation proceedings involve the Court imposing a Confiscation Order against the Defendant, which requires them to pay an amount of money equivalent to the value of the assets that are available to the defendant when the Order is made.

The available assets are listed within a schedule attached to the Confiscation Order and may include properties, vehicles, or jewellery deemed to be available to the Defendant. The defendant may choose to sell the assets listed in the order or pay the order by some other means.

Commonly, In circumstances where the defendant sells the assets in order to satisfy the order, the value placed upon the assets at the time that the Confiscation Order is made cannot be achieved. For example, where a piece of jewellery is sold at auction and sells for less than the initial valuation proposed or where the Defendant’s property may not be able to reach its full market value, as a result of market buoyancy or unforeseen expenses.

Varying the value of a section 23 Proceeds of Crime Act 2002 order

Where the estimated value cannot be reached often the Confiscation Order is left unpaid. In these circumstances, we may be able to assist by preparing a Section 23 POCA 2002 to vary the value of the Confiscation Order.

Section 23 applications can be made where the value of a listed asset cannot be obtained. The application seeks to reduce the amount payable under the terms of the Confiscation Order. The defendant must be able to provide evidence of the disposal of the asset and demonstrate that they have no further assets available to make further payments.

Often, where the defendant has provided clear and cogent evidence of the disposal and can show that the diminution in the value of the asset cannot be attributed to their conduct, the application may be agreed by consent with the Prosecution.

The court’s response

However, where an application is contested, the Court must determine the application to vary the order in a way that the Court thinks ‘just’ under Section 23(3) POCA 2002, after taking into consideration all of the points and evidence put forward within the application. For example, where a defendant fails to maintain mortgage payments and a property is repossessed, the Court may not consider it just to afford the defendant a significant reduction.

Section 23 of POCA is an important mechanism, as once the defendant has realised all of their assets if there remains a discrepancy between the value of the Confiscation Order and the actual amount that the assets realised, unless a Section 23 application is made the defendant will continue to be liable for the full amount. In addition to this, the defendant will also be liable for any interest that accrues on the amount outstanding and could face the prospect of serving a default sentence.

Case Study

In a previous Legal Aid funded case, the client approached Cohen Cramer to request assistance with the preparation of a Section 23 application, after the defendant was convicted of engaging in an unfair commercial practice. The Defendant’s available amount listed on the Confiscation Order was £986,815.76. After some investigation into the sale of the assets, we were able to successfully argue that the actual amount realised was £870,506.35 reducing the Defendant’s available amount by £116,309.41 and avoiding the imposition of a default sentence.

If a Defendant is continuing to pay a Confiscation Order despite having no further assets available, it is in their interest to seek expert advice regarding the preparation of a Section 23 application. If the Confiscation Order is not paid in full, the defendant will be ordered to pay interest and a default sentence could be imposed.

How we can help

If you find yourself in this situation, our expert POCA team is happy to advise and assist in the preparation of Section 23 applications.View Post

For expert POCA advice, get in touch with us today:

 

Tilly Twite June 2021

avoiding contractual pitfalls

Avoiding Contractual Pitfalls

Avoiding contractual pitfalls. In light of the fallout from the European Super League and the possible contractual implications for those teams which had signed up to the League and have since pulled out, we set out below five tips to ensure you are protected when it comes to contracting with another party.

An agreement may be required for anything from loaning money – whether commercially or to family/friends to agreeing to carry out a service in return for payment, for example, building an extension or decorating your home. Whatever the agreement, and no matter how formal or informal it may be, you should take steps to protect yourself in the event of fallout.

Verbal or Written – a contract can be formed whether verbally or in writing, however, it is always best to record the terms of the agreement in writing. This will help minimise any fallout should either party default on the agreement as you can refer to the contract terms as to how to deal with the breach. If a contract is made verbally, it will be difficult to prove what terms were agreed to then prove if that term has been breached.

Take professional advice – where possible, it is always best to take professional advice when drawing up a contract or agreement. A professional adviser can help incorporate terms into the contract to protect your position in the event a party doesn’t comply with the agreement.

Plan for the worst – whilst it can feel a bit awkward agreeing on what will happen in the event of fallout, it is easier to agree on what would happen whilst still on good terms. For example, should interest be charged on any unpaid sums?; do you have the right to withhold payment until defects are sorted?; can you terminate the contract without penalty? If these are discussed and agreed at the outset, in the event of a fall out you will be able to take speedier action to resolve the dispute.

Negotiate – a contract is normally for the benefit of all parties, whether that be paying a builder for their services to carry out work to your home, or loaning money in return for a payment in full with interest over a specified period. Having a clear agreement in which your interests are best protected on the best terms possible, means you shouldn’t shy away from negotiation. If it transpires at a later date that the agreement isn’t quite as beneficial as you thought, you are unlikely to be able to address this at a later date.

Due Diligence – we see time and time again people entering into agreements without carefully checking out the company or individual they are reaching an agreement with. Whilst it is not always easy to establish the financial position of the person you want to contract with, you should undertake as much research as possible to satisfy yourself that you are contracting with who they say they are; that they will be able to carry out the work you have paid for; or that any loaned sums can be repaid.

How we can help

We are often brought in to help clients at the point of the fallout of a contract. By taking into account the above steps, whilst we cannot guarantee you will not find yourself in the position of having to seek legal advice because a contract has been breached, it makes it easier to resolve any dispute if the above steps have been taken at the outset.

If you have any concerns over a contract or agreement you have entered into, about to enter into, or you are already at the stage where the contract has been breached and you are no longer benefitting from the contract, please get in touch on 0113 224 7808 or disputes@cohencramer.co.uk to discuss how we can help further.

 

Gemma Bowkett (Associate Solicitor) 5th May 2021

 

Avoiding contractual pitfalls

Section 22 Applications and Your Pension

Section 22 Applications and Your Pension. The POCA team was recently instructed in a case where the defendant, who had a Confiscation Order in 2010, was identified as having further assets available to him, including three pension funds. We were able to successfully negotiate a deferred payment for our client to maximise the money paid towards the Order and avoid paying penalty fees for realising the pension prematurely.

It is not uncommon for pensions to be included within Section 22 Applications. The question as to whether it is ‘just’ within the Proceeds of Crime is not straightforward and will depend on the individual circumstances. It is certainly a tough prospect for a defendant to face losing their nest egg that they were anticipating relying on in the future, especially when the money was saved from an early career, sometimes decades before any offending took place. This can be a particularly harsh reality when a conviction against a defendant’s name has the potential to limit future employment prospects.

The defendant, in this case, was also self-employed meaning that job security and retirement, particularly during Covid, was going to be very challenging without these funds.

The law in relation to S22 Applications

Case law shows us that there are many factors to be taken into account when considering Section 22 Applications to determine what is ‘just’, such as how long ago the Order was made; the amount outstanding; and the impact on the defendant (Padda). However, there has been no successful challenge in the Court of Appeal as to pensions specifically.

Pensions are also subject to strict tax rules. Save for exceptional circumstances, any withdrawal from your pension before turning 55 is classed as an ‘unauthorised payment’. While technically the pension can still be withdrawn – it will be subject to an eye-watering 55% tax which goes to HMRC as a penalty. For example, a pension worth £100,000 in total would see £55,000 being paid to HMRC and only £45,000 being paid towards the Confiscation Order.

In this case, the defendant had not yet turned 55. Nonetheless, the pensions were pursued by the Prosecution as an available asset as the money could be withdrawn, even though the defendant would have to pay a significant tax penalty for doing so.

How we helped

We were able to successfully propose a Variation to the Restraint Order allowing the funds to remain in his pension accounts until age 55. This had the effect of preserving the full amount of money to be later contributed towards the Order with no tax payable. Rather than the tax going to HMRC, the full amount was used to pay the Confiscation Order reducing the amount owing in future.

The Section 22 Application was withdrawn, and all other assets were removed from the proceedings. A Variation to the Restraint Order was drafted and sealed by the Judge.

We can assist our clients in reaching a practical, common-sense resolution to any POCA issue to ensure that their interests are protected.  If you need assistance with a Proceeds of Crime matter, contact us today.

We can help you with your Section 22 Application and your pension

We will deal with confiscation cases anywhere in England and Wales.

For the help and assistance you need to get in touch with us today:

  • Call: 0113 244 0597
  • Email: poca@cohencramer.co.uk
  • Request a call back by entering your details into the form at the bottom of this page

 

John Goodwin’s submission to the Justice Select Committee on Private Prosecutions (2)

RSPCA has submitted evidence to this inquiry, which outlines how it approaches prosecutions and the measures it has put in place to improve its transparency and accountability.

The Committee has also received a number of submissions that are critical of the RSPCA’s prosecutorial activities.

The Countryside Alliance suggests that it is inappropriate for the RSPCA to remain the principal prosecutor of animal welfare offences and that it should instead be the responsibility of public bodies.

John Goodwin, a solicitor for Cohen Cramer Solicitors who defends prosecutions brought by the RSPCA, highlights concerns over the way in which the RSPCA operates at the pre-trial stage, the issues surrounding the obtaining and execution of warrants, the

Law Commission’s Consultation on POCA 2002

The Law Commission’s consultation into potential reforms to the confiscation regime opened on 17 September 2020.  What this means is that the government body which advises in relation to changes to the law are considering what changes could be made to improve the effectiveness of the Proceeds of Crime Act 2002 and associated legislation in recovering more money from defendants.

At this stage, it should be remembered that these are proposals only and not enforceable as law.  This is a whistle-stop tour of some of the potential changes to the Act and Lauren Bowkett, Head of the POCA Department’s interpretation of how these could affect you in the future.

Key Proposals following the Law Commission’s Consultations on POCA 2002

The key proposals which could affect you include:

  1. Standard timetabling for POCA proceedings and introducing a six month maximum period between sentencing and the timetable being set.

At the moment, the Court allows up to two years to conclude confiscation proceedings from the date that the Defendant pleads guilty or is found guilty after trial.  This can be extended if it is found that there are exceptional circumstances.  The Law Commission is proposing that to speed up the delay in the process starting, the timetable should be fixed in six months from the sentence.

  1. Allowing the Court to make extra orders when the confiscation order is made, which are contingent on the actions of the Defendant i.e. if the Defendant doesn’t pay how the assets on the confiscation order could be recovered.

At this stage, it is unknown what sort of contingent orders could be made.  However, it will allow the Court to think ahead if payment is not made and make orders to enforce the sale or realisation of assets in advance.  At the moment such orders are not made in the Crown Court.  When a confiscation order is made, the benefit and available figures are stated, the time to pay, and what sentence the Defendant would receive in default if he was not to pay.  The new contingent orders would be much more tailored to the Defendant’s case.

  1. Giving the Court the power to impose financial penalties and forfeiture orders prior to the conclusion of the confiscation proceedings.

For example, if a Defendant has cash held in a bank account that has been restrained by the Prosecution, at the moment that cash will remain restrained until the outcome of the confiscation proceedings.  The Defendant will then sign a consent to the transfer the funds to pay the confiscation or compensation order (if there are victims) at the end of the proceedings.  Under the new proposals if there are victims the Court would have the power to make an order prior to the outcome of the confiscation proceedings to return cash to the victims.

  1. If Defendants are sent to prison for failing to pay their confiscation order, they will not be automatically released unconditionally halfway through their sentence. They will be released on licence and returned to prison if they still do not pay.

If a Defendant does not pay their confiscation order, they are sent to prison for the amount of time outlined in the confiscation order.  They are then released unconditionally after half of that time.  For instance, if the Defendant was sentenced to six months imprisonment in default, they would be released after three months.  Under new proposals, the Defendant would still be released halfway through their sentence.  However, if they do not take steps to then pay the confiscation order, they can then be returned to prison to serve the remainder of their sentence.  At the moment, once released from prison, Defendants cannot be returned.

  1. If Defendants cannot pay their confiscation order, they will need to provide more detail concerning their financial circumstances and evidence in support of this

At the moment, once a Defendant has been to prison for non-payment of the confiscation order, they can be summonsed to court for what can be described as a financial penalty hearing.  At the moment, the Defendant is asked to complete a form that sets out the Defendants income and outgoings.  No evidence is required to support the information in the form.  It is assumed that this recommendation is in relation to that process.

  1. Judges to be able to pause or reduce the accrual of the daily rate of interest at the Enforcement Court to incentivise the Defendant to pay the remainder of the confiscation order.

Once the Defendants time to pay expires, which could be three months from when the confiscation order is made or up to six months if an extension has been granted, a daily rate of interest begins to accrue.  At the moment, there is no power to stop interest accruing and it accrues until the confiscation order is paid in full.  It is proposed that Judges in the enforcement court have the power to pause or reduce the accrual of the daily rate of interest to assist and perhaps make the interest accruing more manageable.

These are only some of the proposals following the Law Commission’s consultations.  Their consultation closes in December and after this time, it will become clear, which, if any of these proposals become law.  POCA is a complex and constantly changing area of the law.  If you face confiscation proceedings, make sure you instruct specialist lawyers as soon as possible.

We can help

Get the help you need at any stage of your confiscation proceedings.

How Lauren and her specialist team can help you:

  • Challenge confiscation orders
  • Reduce confiscation orders
  • Defend enforcement proceedings
  • International asset recovery
  • Account Freezing and Account Forfeiture Orders
  • POCA Conveyancing

Call: 0113 244 0597

Email: POCA@cohencramer.co.uk

Request a call back by entering your details into the form at the bottom of this page.

 

John Goodwin’s submission to the Justice Select Committee on Private Prosecutions

John Goodwin defends in all types of Animal Welfare Cases and currently is representing defendants in some of the Biggest RSPCA cases throughout England and Wales. He has many concerns about the role of the RSPCA as a private prosecutor and particularly the fairness of the initial stages of their investigations. Many clients are unaware when visited by the RSPCA that they do not have to let them into their premises or that the RSPCA has no powers over and above any other citizen. They have no right to insist on interviewing clients in their homes. They have strictly limited powers to seize animals.

His full submission is set out below:

I am a solicitor, a director in the firm of Cohen Cramer Limited, and the head of the Criminal Department.  I regularly defend private prosecutions brought by the RSPCA as do others in my practice.  I also defended in one of the Horizon evidence-based Post Office prosecutions.

The vast majority of our current defence work to private prosecutions is in relation to the RSPCA cases.

One of my main concerns is the pre-charge stage.  The RSPCA likes to interview suspects in their homes and, although they are obliged to advise suspects of the right to free and independent legal advice, a common theme with our clients is the claim that this has not been explained to them fully.  They are therefore interviewed without legal representation and often the interviews are not recorded.  This should change.  Private prosecutors should not be allowed to interview suspects without the suspect having an opportunity to take legal advice.  My submission would be that a system is introduced whereby interviews after RSPCA visits/raids (they do not like them being called “raids”) are not permitted on the day and that those required to be interviewed should have a notice served upon them advising them of the right to free and independent legal advice and that there should be a period, possibly seven days, for them to take advice before interviews are arranged.

I would make a further submission that suspects must be told that they will not be arrested if they refuse to be interviewed and yet a further submission that in no circumstances at all should a refusal to be interviewed or silence in an interview ever lead to an adverse inference in a private prosecution.

So far as warrants are concerned there are many cases we defend where the efficacy and legality of warrants and searches is challenged.  There is a lack of control and scrutiny over evidence that is presented to the Magistrates in applying for a warrant and there are many factual and legal issues that are litigated in relation to the execution of the warrants.  My submission is that to ensure fairness that a full record of what is stated to Magistrates in applying for warrants should be made.  The application should therefore be recorded so that there is an exact record of what has been put forward to the Magistrates.  All warrants that are executed should be recorded on body-worn video and all these recordings both in applying for a warrant and in connection with the searches should be used material and it should be obligatory that they are served on the Defendant and/or their solicitors.

In RSPCA prosecutions very often, and indeed in almost every case, animals are seized from the owners and yet owners are often prevented from visiting them or unfair restrictions are placed on visits.  The animals still belong to the owners who should be entitled to visit them without restriction unless an application is made to the Court for a restriction to be imposed backed by cogent evidence and reasons. If there is any veterinary intervention this should be immediately notified to the owner and consent should be sought and the owner should be invited to instruct a vet of their own choosing to inspect the animal and advise on appropriate treatment.  A protocol would of course have to be put in place.  So far as the investigator’s standards and duties of disclosure are concerned the full code test of the CPS  should be obligatory for all private prosecutors.  There should be confirmation in every case that the full code test has been undertaken and that it is constantly kept under review.

So far as disclosure is concerned urgent consideration should be given to a system whereby a disclosure officer is appointed to review the material as to whether it be used or unused and as to whether unused material should be disclosed and the person responsible should be independent of the organisation prosecuting and independent of the solicitors who are appointed to prosecute.  Careful consideration must to be given as to who the disclosure organisations are but I have grave concerns as to the efficacy of the disclosure decisions.

Private prosecutors should be disqualified from providing any information about any aspect of their prosecution to the press or on social media. It is regularly, if not invariably, the case with our clients that they complain of impropriety with RSPCA officers and whether such complaints are justified or not the appearance of fairness would be given if disciplinary sanctions applied to RSPCA (and other private prosecution organisations) officials and employees if they in any way alerted any branch of the media for details of their ongoing cases.

The costs of bringing prosecutions by the RSPCA (and other organisations who prosecute animal cases) are often huge.  I have an ongoing case, and permission to mention this from my client, where the RSPCA have explained to the Court that the cost of homing the animals pending a trial is currently over £1.3 million.  Due to the pandemic, the trial was aborted part-heard and might not be listed until next year when the costs will be considerably in excess of £2,000,000.  I have another ongoing case where the costs of housing the animals to a prosecuting local Council are £5,000 per month.  These cases are unique in that they are the only type of prosecution where the exhibits are living and sentient creatures.  Those whom we represent are, to use the vernacular, “scared stiff” of potential costs consequences should they defend a case and lose.  This in itself leads to an inherent unfairness in that they might wish to enter pleas, not out of any true admission of guilt, but because they are fearful as to the severe financial detriment of losing a trial.  In private prosecutions therefore there should be more than an expectation that costs claims are proportionate.  There should be a detailed scale approach to costs.

Reverting to the investigatory stage clients very often tell us that when they are visited by the RSPCA and agree to relinquish ownership of animals whether on a temporary or permanent basis, they have no idea that the RSPCA has no powers greater than an ordinary citizen.  If all such visits have to be subject to full audio and visual recording it should be stressed that there is a requirement for RSPCA inspectors and other employees to explain to those being visited the full nature of their legal powers.  Failure to provide such information should be regarded as such an egregious abuse of process that it should be subject to a statutory authority that it would automatically lead to a prosecution being stayed.  My main concerns with private prosecutions are the raids/visits to my clients in the first instance, the issues surrounding the obtaining and execution of warrants, and the approaches to the public interest and evidential stages and to the issues of disclosure.

I hope these very concise representations are of assistance.  There are only a handful of firms nationally, of which we are one, which defends any substantial volume of RSPCA private prosecutions.  I am acutely aware that representations whether concise or detailed will not get to grips with the level of detail which would need to be considered to introduce statutory or advisory safeguards.  As a director of a firm currently defending in a number of the RSPCA’s largest prosecutions, I would welcome the opportunity to provide oral submissions to the Committee.

I do not approach these issues purely from a Defence perspective.  I have concerns although I have not elaborated on them herein, as to how the Courts approach these cases, their reluctance to accept listing and direction requirements, the priority or lack of priority given to serious case management, and the fact that proposals given in the Queen’s speech to make certain Animal Welfare Act offences triable on indictment should all be given urgent consideration.

I thank you for your attention to these representations

John Goodwin

30.07.2020

https://committees.parliament.uk/writtenevidence/9496.pdf

Confiscation Proceedings in a Nutshell

At Cohen Cramer, the dedicated POCA Department specialises in all proceedings under the Proceeds of Crime Act 2002 and associated legislation.  We have the expertise and knowledge to deal with the most complex of matters and can assist with any issue you face. Leah Arksey, our expert Paralegal, offers her overview of POCA, to explain what exactly you could find yourself facing during the proceedings. Continue reading

Debt recovery for businesses and SME’s

Debt recovery for businesses and SME’s. Whilst many of us are acutely aware of the threat to health that Covid-19 (Coronavirus) has brought in 2020, we are also aware of the threat it has brought to our companies and small businesses.

The business landscape of today shows a picture of uncertainty, due to reduced consumer/client engagement which has resulted in reduced profit margins and cash flow, with many companies simply unable to stay afloat.

It seems that with the instability in gaining revenue that companies are currently facing, they may have to look internally to increase cash flow. This could involve an assessment of their debt recovery procedures and whether they have outstanding debts owing.

Internal debt management

Businesses should of course look to manage overdue payments internally and can do this by keeping communication clear and on a regular basis with their clients. This will ensure a full understanding of any contracts entered into and payments to be made and can help to reduce disputes.

Businesses must also have a recovery procedure in place that is consistent and adhered to, but that is also flexible in any potential recovery arrangements that can be put in place. When an invoice is unpaid, act quickly, and be willing to think alternatively to come to an agreement with your debtor.

When debts remain unpaid

Maximising debt collection should be a priority to many businesses; to recover owed debts would increase available means to your business and would make for a happier balance sheet.

The recovery of money owed can be a sensitive area and it is important that the process is managed promptly and with skill, especially during the current Pandemic.

Cohen Cramer can provide a fast and cost-effective debt collection service to your business.

Do not let Coronavirus put your business off taking debt recovery any further. Cohen Cramer is experienced in establishing which debtors are in difficulty and truly unable to make payment and which ones may be simply looking to avoid making payment.

For your free and confidential initial discussion to see how we can help your business run in an effective, efficient, and economical way, please get in touch with us on the following details.

How we can help with debt recovery for businesses and SME’s

To get the help you need get in touch with us today:

  • To speak to a member of our Disputes Team on the phone please call 0113 224 7808
  • To send a member of our Disputes Team an email please use disputes@cohencramer.co.uk

 

 

How to witness a will in lockdown

One of the products of the Coronavirus lockdown is in relation to the witnessing of wills.

The problem

It has always been the case that the person making the will (the testator) has to have two witnesses present at the time that the will is signed. The sequence is that the testator assembles two people who will act as his witnesses. They have to be adult persons and not a relative. Witnesses have to watch the testator signing the will. Each witness then needs to sign the will in the presence of the other witness and the testator.

It is going to be possible from the 1st September for a will to be witnessed electronically. Albeit that the legislation only comes into force on the 1st September, the regulations however are backdated to the 31st January 2020. The regulations will only continue for a period of two years, that is until the 31st January 2022. If there have been no further changes then one has to revert to the position of witnesses being actually present.

The solution

The starting point is to set up a video conference with the two witnesses. The testator signs the will whilst the two witnesses are there. The will is then posted to one of the witnesses. That witness signs it during a further video conference. The document is then sent to a second witness. There then has to be another video conference, again involving all three people when the second witness can sign. Since this process can take a few days it is possible that the testator can become incapacitated or might die before the witnesses process has been completed. In that event, the will would not be valid.

For advice and help with drafting or witnessing a will contact richard.manning@cohencramer.co.uk 

 

The Big Freeze – The Rise of the Account Freezing and Account Forfeiture Order’s.

Account Freezing and Forfeiture Orders. Over the last year, there has been a substantial rise in the use of Account Freezing Order (AFrO) and Account Forfeiture Order (AFO) schemes under the Proceeds of Crime Act 2002 (POCA).

Increased use of AFrO and AFO

A Freedom of Information request showed that 166 orders to freeze accounts were issued by HMRC in 2019/2020 which is up 177% from the previous year.  The reasonably low threshold for authorities to obtain an AFrO makes them an obvious choice in the Prosecution tool kit to investigate potential proceeds of crime, without a criminal conviction.  However, there are ways to challenge them and the instruction of a specialist POCA lawyer is the best method.

For many years, prosecuting authorities have had the power to seize cash from anyone they suspect to have obtained it unlawfully.  It is then forfeited unless evidence can be adduced to satisfy the Court that the cash has in fact come from a legitimate source.  These powers have been extended under the Criminal Finances Act 2017 with the implementation of the AFrO and AFO scheme.

Reasonable Grounds for Suspicion

For the prosecuting authority to obtain an AFrO under Section 303Z1 of POCA they must have ‘reasonable grounds’ for suspecting that money held in a bank account is recoverable property or that it is intended for unlawful conduct.  ‘Reasonable grounds’ must be on an understandable and proper basis.  The application is usually made, without notice, to the Magistrates’ Court and the prosecuting authority must also inform the court of any reasons why the money in the account may be legitimate.

If the Court agrees to make an AFrO, the intended recipient will then be informed and the AFrO served on them.  One of the most significant decisions will then be whether the appellant wishes to challenge the order.  There may be a number of different ways to do this and instructing an expert POCA lawyer will assist in making an informed decision on how to proceed.

Challenging an Order

There is no Legal Aid funding to challenge an AFrO or AFO.  The Respondent is not facing criminal proceedings and so may find that all of their money is tied up in the frozen account.  If that is the case a specialist lawyer can seek a variation to release money to cover reasonable living expenses, legitimate business expenditure, and legal expenses if necessary.  The appellant should be able to obtain a ‘no quibble’ initial sum so get the ball rolling.

If the Respondent does not challenge the AFrO within the allotted time period an application may be made to forfeit the money in the bank account by the prosecuting authority.  They must satisfy the Court that the money held in the bank account is recoverable property or intended for unlawful conduct and if so, the money will be forfeited.  It is then distributed under the Asset Forfeiture Initiative Scheme.

There is currently no easy route to appeal an AFrO.  The legislation does not provide for this and so it is absolutely paramount that the moment you receive an AFrO you seek specialist advice.

Get the Help You Need with Account Freezing and Forfeiture Orders

How Lauren and her specialist team of lawyers can help you:

  • Exclude funds for living expenses.
  • Challenge the lawfulness of any AFrO.
  • Challenge the AFrO or AFO.
  • Advise third parties.
  • Reach a settlement.

For the help and assistance you need get in touch with us today:

  • Call: 0113 244 0597
  • Email: poca@cohencramer.co.uk
  • Request a call back by entering your details into the form at the bottom of this page

For the Quality Legal Service that You Deserve