They are often made without notice, and in many cases before an individual is even aware that they are subject to an investigation by the police or other investigating authority. Such orders can prevent someone from accessing their assets, including cash savings or other property, causing significant difficulties for individuals and their families. Those who are subject to Restraint or Freezing Orders face a significant challenge to defend themselves against these proceedings, and to be able to access finance to conduct a robust defence to charges arising from any future criminal investigation.
The Criminal Defence Team at Wilford Smith specialises in providing legal representation in relation to all types of crime, and can provide the strongest defence on behalf of those who are subject to Restraint or Freezing Orders, helping you retain access to your assets. We take pride in our reputation for unique representation, giving our clients a service that is exceptionally strategic and results driven. Contact our specialistCriminal Defence Team today to find out how we can help.
What is a Restraint Order/Freezing Order?
The Proceeds of Crime Act (POCA) 2002 makes it a criminal offence for anyone to use any property, including money, goods or shares, that have been obtained as a result of criminal activity. If a prosecuting authority believes that someone has acquired property in this way, an application can be made to the court to have this confiscated. This may be done by way of a Confiscation Order following a criminal conviction, or through a Civil Recovery Order when it has been decided not to pursue a criminal conviction or in cases where an individual has been found not guilty in court.
A Restraint or Freezing Order is often obtained by an investigating or prosecuting authority to make sure that a defendant’s assets remain available pending a criminal investigation by ‘freezing’ these assets, so that they can be confiscated at a later time if the defendant is convicted of a criminal offence.
In many cases, a Restraint or Freezing Order will be sought well in advance of any criminal charges being brought, if any are brought at all. It is important that the public interest in preventing a defendant’s ability to access finances that may have been acquired through criminal activity is balanced with the fact that, at this stage, they have not been convicted of any offence, and may never be.
A Restraint or Freezing Order can be incredibly extensive in its scope, preventing an individual from dealing with their assets even if they are held in trust or overseas. In cases that are particularly serious or complex, a Restraint or Freezing Order can be accompanied by a Management Receivership Order. This order puts in place a receiver who will manage particular assets such as a business, which will then continue to trade.
Who applies for a Restraint Order/Freezing Order?
Investigating and prosecuting authorities, such as the Crown Prosecution Service (CPS), HMRC and the Serious Fraud Office (SFO), can make applications for Restraint and Freezing Orders. They can do so at any stage of a criminal investigation, from the investigation’s earliest stages through to court proceedings. In applying for these orders, the investigating authority must provide the court with enough evidence to show that a defendant has gained financial benefit through criminal activity. The court will not grant an order if there is merely a suspicion that assets are the result of criminal activity.
What happens once a Restraint Order/Freezing Order has been imposed?
Once the court has granted a Restraint or Freezing Order, a defendant may then be required to make disclosures by affidavit to the investigating authority regarding the nature and extent of their assets. This will include details of any bank accounts and property, including information on where this is located, as well as any assets that are held overseas. If the defendant has assets held abroad, it is within the powers of the court to require that these assets be transferred back to the jurisdiction of England and Wales. An example would be when money is held in an offshore account. The defendant will be required to transfer this to bank accounts held in England and Wales, and these will then be frozen. Depending on the nature of their assets, defendants may be entitled to receive a living income from assets that have been restrained or frozen.
How can a Restraint Order/Freezing Order be challenged?
The Criminal Defence Solicitors at Wilford Smith can work on your behalf to explore all options available to you if you have been subject to a Restraint or Freezing Order, taking a ruthless approach to challenging every detail of the court’s decision. Our team will investigate whether an order has been lawfully obtained, and whether it can be challenged or discharged. If an order has been obtained properly, and there is no scope for having it discharged, we will seek to have the order varied to reduce the impact on you and your family as far as possible. Our solicitors can work to ensure that legitimately earned income is protected and that any order is granted for as short a period as possible.
Why choose Wilford Smith?
Wilford Smith’s Criminal Defence Team specialises in POCA cases and defending clients who are the subject of Restraint and Freezing Orders. With years of experience dealing with high-value, complex cases, we are best placed to advise you on challenging the wide-reaching enforcement powers of the CPS, HMRC, NCA and the SFO. We strive to protect your assets, interests and rights. For advice and representation from lawyers who have the skills and knowledge to prepare a strong defence and achieve the best possible outcome, contact us today.
Contact our Restraint Orders/Freezing Orders Solicitors, UK
Our Criminal Defence Solicitors are based in London, Sheffield and Manchester and serve clients throughout England and Wales. Contact us today on 0808 164 1028 to find out how we can help