Account Freezing Order Solicitors
Account freezing orders (AFOs) are an increasingly common mechanism for investigatory authorities to target cash held in bank accounts or building societies, which they believe to have derived from criminal proceeds, or intended for use in criminal activity. If you are the subject of an AFO, seek specialist legal advice from our account freezing order solicitors.
Having the funds in a bank account suddenly frozen is a draconian financial restriction. If you are affected by an AFO, you should seek specialist legal advice as soon as possible to discuss potential implications, any variations or exclusions that can be applied for and to seek advice in respect of any underlying criminal charges being brought in the future.
Our Business Crime and Regulation team provides a first-class service to those facing allegations of wrongdoing, in particular in the initial stages of an investigation where accounts and/or assets may be frozen. The bespoke nature of our service means we can be as dedicated and thorough as is required in cases such as these. We have extensive knowledge of this area of the law and a track record of success in securing variations and exclusions to AFOs, and defending clients against any related criminal charges.
How JMW Can Help
If notice is provided of an intention to apply for an AFO, JMW's account freezing order solicitors can assist the subject in resisting that application, or ensuring that it is granted only for the shortest possible time to allow the enforcement officer sufficient time to complete their enquiries.
If the AFO has already been granted or you wish to vary it, Section 303Z4 of the Proceeds of Crime Act (POCA) allows an application to be made by the person affected by the order (the owner of the bank or building society account) to set aside the order or vary it. In addition, any third party with a legitimate interest in the funds contained in the account can apply to vary or set aside the AFO.
As well as applying for the order to be discharged or varied, the owner of the funds subject to the AFO may make an application for certain exclusions (Section 303Z5 of POCA) to be applied to the prohibition. This could include allowing certain withdrawals or payments to be made from the account subject to the AFO. This may include allowing the account holder to:
- Meet reasonable living expenses
- Carry on a trade, business, profession or occupation
The exclusions may also be relied upon to allow for payment of reasonable legal expenses.
If you are subject to an AFO, you should obtain expert guidance to consider any applications that can be made to vary or discharge the freezing order. Legal advice can make a big difference to your financial future in these cases.
JMW currently represents and advises individuals and companies across the country and internationally who have been served with an account freezing order. We are able to provide assistance throughout the proceedings. We provide national representation and have experience in representing clients who have assets and accounts both inside and outside the jurisdiction.
What Our Clients Say
What is an Account Freezing Order?
An AFO is an order that, subject to any of the exclusions discussed above, prohibits the holder of a bank account from making any withdrawals or payments from the account. The powers that enable a court to order an AFO, under POCA, were introduced by the Criminal Finances Act 2017. The relevant provisions are contained within sections 303Z1 to 303Z19 of POCA.
These orders are designed to provide authorities with ‘quick and effective action against funds held in bank accounts, to recover the proceeds of crime, and to tackle money laundering, corruption and terrorist financing' (Criminal Finances Act 2017).
Once made, an AFO completely prohibits the use of the account, and an individual or company subject of the order may find that their account has been unexpectedly frozen as the provisions of POCA allow the order to be made without notice if it is deemed appropriate in the circumstances. The relevant bank or building society account subject of the AFO must contain a minimum of £1,000 for the court to make the order.
Where an AFO is applied for, the court will make the order if it is satisfied (on the balance of probabilities) that there are reasonable grounds for suspecting that the money held in the account is recoverable property, or intended by a person for use in unlawful conduct. ‘Recoverable property' means that the funds in the account are alleged to have been obtained through unlawful conduct. The threshold to be met is low, namely ‘suspicion' and AFOs applied for are routinely granted by the court if not contested.
If you have had your funds frozen suddenly as a result of an account freezing order, read our guide outlining what you can expect to happen next.
Who can apply for an AFO?
An ‘enforcement officer’ can apply to the Magistrates’ Court for an AFO. This can include:
- An officer of Revenue and Customs
- A police constable
- A Serious Fraud Office (SFO) officer
- A National Crime Agency officer
- An accredited financial investigator
- A Trading Standards officer
The mechanism is widely available to a number of authorities. The officer applying for the AFO can apply to any Magistrates’ Court in England and Wales.
How long does an account freezing order last?
If an AFO is made by the court, the order will specify the length of time that it is to be in force. This may be a period of six months and cannot exceed a period of two years from the date that the order was made. If the order is made for a shorter period, such as three or six months, an application can be made to extend the order.
For the period of time that the AFO is in force, it is intended that the time is used by the authority to investigate the provenance of the funds that are frozen. If authorities do not follow these account freezing order rules, there may be scope to have the order varied or discharged.
What is an Account Forfeiture Notice?
Following an AFO, an application for the funds held in the frozen account to be forfeited may be made, under an Account Forfeiture Notice or a Forfeiture Order. If this is the case, an individual who is the subject of an AFO may receive a Notice for Forfeiture. The notice will set out that any objections to the forfeiture of the funds must be made within a period of 30 days.
When an application for forfeiture is made, the court will consider whether it is satisfied that the money held in the account is recoverable property (originating from unlawful conduct) or is intended to be used in unlawful conduct. It may be that the investigation that has taken place whilst the AFO is in place, leads to criminal proceedings being brought by the investigating authority.
What should I do if my bank account was frozen without my knowledge?
In some cases, law enforcement agencies and other investigating authorities can apply for an AFO without notice. They will take this approach in cases where they believe that, if they notify the account holder of their intentions, there is a risk that the assets in the account could be moved or realised before the order goes into effect. As such, you may find that your bank or building society accounts are frozen without warning.
Naturally, this can be an extremely distressing challenge to face. The first thing you should do is speak to a solicitor about the circumstances of your case. Typically, this initial conversation will be free, meaning that you can begin the process of fighting back against the order and trying to have it discharged without needing access to your money.
You can take several different approaches to the problem of an AFO with the support of a solicitor. One of the first steps may be to apply for an exception to the order, which can free up some of the frozen funds to be used for everyday expenses, regular outgoings, and potentially even legal expenses. There may also be legal grounds to have the order discharged; your solicitor will advise you of the best approach to take when trying to have the restrictions lifted.
How can I pay my bills or legal fees to fight an AFO?
The subject of an AFO can often apply to have the order varied, which will allow them to access the funds they need to gain legal support. It is best to work with a solicitor to achieve this, so you should speak to a legal expert as soon as possible to begin this process.
When will I regain control of my assets?
If the enforcement officer no longer believes there are reasonable grounds for suspecting the money is either recoverable property or is intended for use by any person in unlawful conduct, they should apply to the court to vary or discharge the order. In similar terms, if the Court is no longer persuaded the relevant legislation is satisfied, they should vary or discharge the order.
You will find that the enforcement officer may be slow to apply to the court where the relevant grounds are no longer met. However, with expert legal advice, you may be able to expedite this, and you can ensure the AFO is only in place for as long as it is strictly necessary.
What can I do about an AFO?
There are several ways you can respond to an account freezing order, and the right strategy depends on your individual circumstances. The best step you can take is to seek expert advice from the knowledgeable account freezing order solicitors at JMW. We can discuss your circumstances, offer practical advice and give you realistic expectations about the possible outcomes of your case. We can also provide an experienced defence solicitor and any other services you may need if you are involved in a criminal investigation.
What is a production order?
There are several types of orders that investigating authorities may use in fulfilling their duties, and it is important to know the difference. A production order is a legal order requiring a person or company to deliver documents or other items that they hold to an investigating authority. While it may be used in a similar manner to an account freezing order, it has a different function. The purpose of a production order is to allow investigators to access documents that might not be surrendered voluntarily during the course of an investigation.
To facilitate this, the production order will give a specific time limit for you to provide the documents, and there may be legal consequences if you refuse or fail to comply by the deadline - this may be deemed contempt of court and could amount to a criminal offence.
FAQS ABOUT AFOS AND PRODUCTION ORDERS
- WHY DO AUTHORITIES USE AFOS?
The main advantage for investigating bodies is that the threshold for applying for an AFO is relatively low. Authorities need only to demonstrate that there are reasonable grounds to suspect that funds are connected with a crime on the balance of probabilities, and as a result, AFOs are regularly applied for and granted by the Courts.
AFOs are also flexible, as we have stated above. Officers can gain extensions for up to two years while they work on their investigation, so this is another factor that commonly motivates them to apply for AFOs.
- WHY HAVE I RECEIVED A PRODUCTION ORDER?
If you have received a production order, it means law enforcement officials believe you have information that is pertinent to an ongoing investigation. It does not necessarily mean that you are connected to the investigation yourself - although, this may be the case, depending on the information you have been asked to provide.
The best way to be sure is to discuss your circumstances with a solicitor. The account freezing order lawyers at JMW can offer advice on your responsibilities and provide any legal services you need - whether that means representation during interviews, support in fulfilling the requirements of the production order, or help in applying to vary or dismiss the order where appropriate.
- WHO CAN ISSUE A PRODUCTION ORDER?
Under the Proceeds of Crime Act 2002, a production order can be issued by a judge on the request of an ‘appropriate officer’ who represents an investigating authority. In most cases, production orders are granted on behalf of the police or other law enforcement agencies, but there are several different authorities within the UK that may have ‘appropriate officers’,meaning that they have the power to apply for a production order.
- His Majesty’s Revenue and Customs (HMRC)
- Serious Fraud Office (SFO)
- National Crime Agency (NCA)
Each authority is bound by different laws during investigations, and it is important to speak to a solicitor to gain a better understanding of how you might be affected by a production order. If you have received a production order and are charged with releasing documents, it is important to comply and fulfil your legal obligations.
If you are the subject of the investigation or the documents contain personal information about you, legal advice may help you to challenge the order and prevent the release of this information. You may also need representation for interviews with the investigating authority, to ensure that the investigation proceeds fairly and your rights are upheld throughout.
- DO I HAVE TO COMPLY WITH A PRODUCTION ORDER? WILL THERE BE CONSEQUENCES IF I DON’T COMPLY?
Generally, you are legally required to comply with a production order. Failure to do so could result in legal penalties - if your non-compliance is deemed contempt of court, punishments could include fines or even imprisonment.
If you have concerns about your ability to comply with the order, speak to an expert solicitor from the Business Crime or Criminal Defence teams at JMW. Even if there are legitimate reasons why you cannot comply with the order, it will not be enough to simply ignore it. This may still result in a punishment of the type listed above - however, our team can support you to ensure you meet all of your legal obligations, while also protecting yourself and ensuring your rights are upheld.
- WHAT IF I CAN’T MEET THE TIME LIMIT SET BY A PRODUCTION ORDER?
If you cannot meet the time limit specified in the production order, you may be able to obtain an extension on the deadline from the relevant authority. The best response is to speak to a solicitor, as they will be able to provide specific advice and support based on your individual circumstances.
Failing to comply, even if you can demonstrate that it was impossible under the circumstances, may still be viewed as contempt by the courts if you fail to communicate with the authority that has applied for the order.
- WHAT IF THE DOCUMENTS I HAVE BEEN ASKED TO PROVIDE ARE CONFIDENTIAL OR SUBJECT TO LEGAL PRIVILEGE?
If documents are confidential or legally privileged, you may still need to surrender them to the relevant authority - however, this will depend on a case-by-case basis and there are often exceptions for these types of documents. Seek guidance from an expert lawyer before taking any action, and ensure you do this as early as possible so that there is no risk of missing the deadline specified in the production order while you seek legal advice.
- CAN I DISCUSS THE PRODUCTION ORDER WITH OTHERS?
This will largely depend on the specifics of the order, but in general, you should avoid discussing the terms of the order with anyone other than your lawyer. In some cases, discussing the order could be construed as obstructing justice, because it could give the subject of the investigation an opportunity to interfere with or destroy evidence.
This is one of the main reasons why production orders are often pursued and granted without notice to the subject of the investigation. However, this can be difficult in cases where you are not authorised to provide the requested documents, or are unsure how to proceed. The team at JMW can discuss your circumstances, advise you of your options, and ensure that you do not fall afoul of the law while subject to a production order.
- CAN I CONTEST OR CHALLENGE A PRODUCTION ORDER?
In some cases, you may be able to challenge or vary a production order if you believe it is unjust or if it demands privileged information. You should seek legal advice immediately if you wish to challenge the order, as you will need the support of a solicitor. The team at JMW Solicitors can begin the process of challenging the order on your behalf as soon as we have discussed your case, provided there are suitable grounds to do so.
In many cases, a production order will be granted at a ‘without notice’ hearing by a Crown Court Judge, which means that you will be unaware that the order is being pursued until it has already been granted. Further, if you are the subject of an investigation by a relevant authority, you may not receive a production order yourself. Instead, it may be sent to a bankor building society with which you hold an account, or any other person or business that holds information about you.
This means that documents may be surrendered to authorities without your knowledge. However, in some cases, there are still legal steps you can take to prevent documents from being released or used as evidence. This will depend on many specific factors in each case, and this is why it is crucial to consult a solicitor.
JMW’s Business Crime and Regulation team has a wealth of experience in supporting people and businesses that are connected to investigations or subject to production orders. Our experts have a professional obligation to act in your best interests, which means that we can help you to comply with an order where necessary, or to challenge or vary the order whenever this applies.