What is an account freezing order?
These orders are were introduced by the Criminal Finances Act 2017, which amended POCA 2003.
They have recently been applied with great enthusiasm by the relevant investigative authorities ( HMRC, SFO, NCA, various police authorities ) and experts envisage that thousands of these orders will be secured by the authorities every year.
It is important to understand that these orders are quicker, cheaper and more effective for the authorities, than a criminal prosecution for money laundering or obtaining a freezing injunction in the High Court, which are scrutinised intensively.
These orders are generally made ex parte ( ie without notice ) by the authorities to a Magistrates Court by designated officers working for any of the above mentioned authorities.
The account must be held by either a bank or building society ( the relevant institution must be capable of holding deposits ) and hold a minimum of £1,000.
These are civil proceedings heard in the Magistrates Court ( which are generally within the Criminal jurisdiction and are made subject to the, often complex Magistrates Court Rules 1981 and the Magistrates Courts ( freezing and forfeiture of money, bank and building society Rules 2017).
They can be made for a period up to two years, generally, we have found that the initial orders are currently being made between 6-12 months,those accounts which have connections with foreign jurisdictions are given a freezing order of 12 months.
What is the test applied for such orders?
The authorities receive an enormous volume of information about the suspicious movement of monies, either from SARs ( Suspicious activity reports ) made by financial institutions / professional advisers / High value goods dealers etc.
The relevant ‘ enforcement ‘ officer will make an application to the Court,if s/he has ‘Reasonable grounds for suspecting that the monies are recoverable property or intended by any person for use in unlawful conduct ‘ These are very broad grounds,and the officer can rely on hearsay statements to the Court.
The Magistrates Court then has to decide, upon the lower Civil standard of proof,the balance of probabilities, whether the monies are recoverable property( ie obtained through unlawful conduct ) or intended for use by persons in unlawful conduct.
What should you do, once you receive notice of an account freezing order?
- Immediately instruct a specialist solicitor, with proven experience of dealing with these orders, white collar crime,Financial and corporate crime, POCA ( Proceeds of Crime Act ), money laundering An experienced defence solicitor will be familiar with asset restraint orders and even more vitally, the Magistrates Courts ( which on occasion can be like ‘ the Wild West ‘ and are not for the faint hearted )together with the complex rules which govern those Courts.
An experienced defence solicitor will also be familiar with the District Judges and lay Magistrates making these decisions, and perhaps even more importantly, the practice and policy of the investigative authorities such as the NCA, HMRC, SFO and police.
- If possible try and open direct correspondence with the ‘ enforcement officer ‘ and prepare any representations ( and supporting evidence )that you wish to make re the lawful origins of the monies and lawful purpose of those monies. We have been particularity successful with these type of negotiations and representations and have persuaded HMRC to return £800,000 which they seized.
- You may wish to make representations concerning a variation of the initial freezing order for living expenses, to continue carrying on a trade and legal expenses.
( These representations or an application to the Court for variation of the AFO, can be very difficult - the Courts are quite resistant to these applications and will demand full information and evidence to support such an application ) Legal expenses, if granted at all, are only done so upon rates which are much lower than market levels for legal fees. Please note that there is no state funding to defend these proceedings at all.
- It is imperative to check whether the investigative authorities have not breached or failed to adhere to the strict Service provisions of the relevant Notices and orders. This is very important,and failure to adhere to these Notice provisions can lift an account freezing order completely.
- You may be an innocent third party with a legitimate interest in those monies, and wish to protect your interests in the frozen monies, vary the freezing order to ensure the return of those monies.
- Further, it is always possible to cross examine the ‘enforcement officer ‘ at a later stage when the authorities apply to extend the initial freezing order, about the progress of the investigation and test just how diligent s/he has been. Again, we have undertaken such a cross examination recently to great effect, the Court was very sympathetic to our client and granted a very short extension upon the proviso that the officer had to show real progress had been diligently effected in his investigation These officers are often under resourced and under a great deal of pressure to freeze and forfeit these monies which go automatically to Central government.
What happens if the officer decides to forfeit the monies?
The officer must serve notice of her / his intention to forfeit the monies upon all affected parties.
Again, this is when the Notice procedure must be carefully scrutinised.
You would them have 30 days from the day after the notice has been given, to OBJECT to the forfeiture order, which will result in a full hearing in the Magistrates Court.
It maybe possible to extend that 30 day period, but you would have to be able to prove good reason in order to do so.
- Can you appeal the decision of the Magistrates Court?
- Yes and that appeal will be to the local Crown Court and will be a de novo hearing.
- Can you claim compensation if the orders are lifted or you win an appeal?
- Again the answer is yes, an application would have to be made to the relevant investigating authority
How can Lewis Nedas Law help you?
We have a very experienced, highly regarded(ranked and rated by the Legal 500 and The Times Best Law firms ) financial crime team, with years of proven successful experience when dealing with :these orders ( at the time of writing, Feb 2020, we currently have 5 of these cases involving monies from Pakistan, China, Iraq,which are at various stages ) money laundering, POCA restraint proceedings, High Court freezing orders, bribery and corruption, and all of the National investigative authorities.
Our clients are professionals, business owners and high net worth individuals.
Additionally we have been consulted by a number of companies, seeking advice in order to prevent being affected by such orders, and those that have concerns about certain monies in their company accounts.
We work with leading forensic accountants to evidence money trails and the best specialist barristers in this field.
For further information listen to Siobhain Egan’s podcast on this subjec > Account Freezing Orders - Podcast