The relevant provisions appear at Chapter 3B of PoCA 2002 titled ‘Forfeiture of Money Held in Certain Accounts’.
The test to be applied to an application for an Account Freezing Order is “… reasonable grounds for suspecting that money held in an account maintained with a relevant financial institution (a) is recoverable property, or (b) is intended by any person for use in unlawful conduct.” Such applications can be made without notice (ex parte) “… if the circumstances of the case are such that notice of the application would prejudice the taking of any steps under this Chapter to forfeit…” It is immediately clear that the grounds for granting an account forfeiture order are very broad, particularly so noting that the standard of proof applicable to such applications is the civil standard, and that the protections afforded to account holders and other interested persons are limited. It is difficult to imagine anything other than a rubber stamping exercise at the Magistrates’ Court.
There are some protections afforded. For example, there is a ‘minimum amount’ of £1,000 for any such application and a maximum term of two years for an Account Freezing Order. Equally, it is possible to apply to vary and/or set aside an Account Freezing Order and to apply for exclusions, whether for reasonable living expenses or to pay legal expenses.
However, there is an inherent imbalance and increasingly, Account Freezing and Account Forfeiture Orders are sought by [over] enthusiastic investigating authorities as a quicker, cheaper, and simpler alternative to criminal prosecution.
In a recent case, James O'Hara and Paul O'Donnell succeeded in having an Account Freezing Order discharged and the entire balance returned to the account holder, all by agreement with the investigating/enforcement officer and without any application for an Account Forfeiture Order being made to the Court.
The difficulties and complexities in dealing properly with Account Freezing and Account Forfeiture Orders cannot be overstated. It is imperative that Defendants are represented by genuine PoCA experts.
James O’Hara and Paul O’Donnell are Solicitors in the PoCA and Financial Crime department at IKP Solicitors and regularly accept instructions to act in relation to Account Freezing and Account Forfeiture Orders on a private basis. Both James and Paul possess the necessary subject matter expertise to assist Defendant’s in applying to discharge and/or vary the terms of such Orders and to seek exclusions from the terms of such orders and complement their expertise with a bank of trusted expert Counsel and consultants. James and Paul are members of an elite group of Solicitors in the UK ranked by Chambers and Partners in the area of ‘PoCA Work & Asset Forfeiture’.