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The Practical Realities of Opposing an Account Freezing Order

Account Freezing Orders give the authorities (usually the police or HMRC) the power to apply to the Magistrates’ Courts to freeze money held in a person’s bank account. The practical realities of contesting an application for an Account Freezing Order (‘AFO’) are worth considering before engaging in that process.

The Applicant

The legal test for making an AFO is that there must be reasonable grounds for suspecting that the money held in an account is either recoverable property or intended for use in unlawful conduct. AFOs are also civil cases (although heard in the exercise of the Magistrates’ Court civil jurisdiction) and so the standard of proof is ‘on balance’. The legal test and the standard of proof taken together mean that it is very easy for the authorities to get an AFO if they decide one is needed.

The reality is that, unless the respondent (the person whose account is or could be frozen) engages with the police to demonstrate that the money in the account comes from a legitimate source, it will be very difficult indeed to persuade either the Court or the applicant that an AFO is unnecessary. Even if a respondent does engage, the applicant may argue that it needs time to make its own enquiries during which they want the AFO to remain in force.

The Magistrates’ Court

AFO cases are usually complicated. They almost always involve financial evidence like bank statements (often from more than one account). They often involve detailed statements from multiple witnesses, not least the person or people whose accounts are affected by the Order. The pressure on the Magistrates’ Courts – on the whole Criminal Justice System – in recent years is well documented.

Where a respondent is on notice of an application for an AFO, they have the right to oppose it. When the order has already been made without notice, the respondent can apply at any time for it to be set aside. In the process of opposing an AFO, a Respondent may well serve detailed evidence setting out why the money in their account is legitimate. The evidence takes time to be presented to, and considered by, the Court. The practical reality is that the Courts do not have time to list lengthy hearings at short notice to properly consider the complexities of the evidence. This means that challenging the AFO can take time.

If you have been made subject to an Account Freezing Order and would like advice and assistance with challenging it, please contact our Crime and Regulatory Department on 020 7632 4300.

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