Over the last year, there has been a substantial rise in the use of Account Freezing and Account Forfeiture Order’s and Head of Confiscation, Lauren Bowkett is here to answer some of your burning questions.
What is the difference between an Account Freezing Order and an Account Forfeiture Order?
An Account Freezing Order stops you from using the bank account(s) listed on the Order. You no longer have control of the account(s) and you cannot make withdrawals or pay money into it. The bank account is frozen to allow the Applicant to investigate if the money in the account is from a criminal source or likely to be used for unlawful conduct.
An Account Forfeiture Order is an Order to take the money in the bank account if the Applicant can satisfy the Court that the money should be forfeited. This is usually done by taking part in a full forfeiture hearing. If the money is forfeited it is then distributed under the Asset Forfeiture Initiative Scheme.
Why have my bank accounts been frozen?
Your bank account(s) have been frozen because the Applicant has made an application to the Magistrates Court. There has to be more than £1,000.00 in the account(s) and the Applicant has satisfied the Court on a balance of probabilities that there are reasonable grounds for suspecting the money is recoverable property or intended to be used by a person for unlawful conduct. There will be a statement within the documentation for the Account Freezing Order application which will set out the basis for the Applicant’s suspicions.
My bank account has been frozen, am I going to be criminally prosecuted?
You will not be criminally prosecuted. The Account Freezing Order regime should not be confused with a bank account restrained by a Restraint Order. Contact a specialist POCA solicitor if you are not sure. You will not go to prison but if you are not successful in defending the application the money in the bank account(s) will be forfeited.
How long will this process take?
An Account Freezing Order can be in place for up to two years. If the Order is not discharged or becomes an Account Forfeiture Order then the Order will automatically come to an end.
The application to freeze my bank account was made at court in my absence, is this unlawful?
It is common for Account Freezing Order applications to be made in your absence. You may also be informed of the application only a few days before the hearing, not allowing you ample time to seek legal advice. This is because the Applicant might believe if you receive notice in advance that the account(s) will be frozen you may decide to move the money and hide it.
My accounts have been frozen, how can I pay for my representation?
There is no Legal Aid funding to challenge an Account Freezing or Account Forfeiture Orders. You are not facing criminal proceedings and so may find that all of your money is tied up in the frozen account(s). If that is the case a specialist lawyer can seek a variation to release the money to cover reasonable living expenses, legitimate business expenditure, and legal expenses if necessary. You can obtain a ‘no quibble’ initial sum to get the ball rolling.
If the application is dismissed can I make an application for my costs?
The Magistrates Court has the discretion to make a Costs Order against the Applicant. However, an application is only appropriate if you have co-operated with the Applicants’ investigation and communicated with them throughout.
An Account Forfeiture Order was granted, can I appeal?
There is currently no easy route to appeal an AFrO. You can appeal an Account Forfeiture Order. However, the application is made to the Crown Court and you only have 30 days to do it.
How Lauren and her specialist team of lawyers can help you:
- Exclude funds needed for living expenses.
- Challenge the lawfulness of any AFrO.
- Challenge the AFrO or AFO.
- Advise third parties.
- Reach a settlement.