Account freezing orders and restraint orders

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The powers of the criminal courts to freeze assets has recently been extended in the Criminal Finances Act 2017. Such powers have been available to the Crown Court under the Proceeds of Crime Act 2002, where Restraint Orders can be made pending a criminal investigation, prosecution or an application under section 22 for a reconsideration of a confiscation order (see our page here). Now powers are available that allow the Magistrates Court to make an “Account Freezing Order” on application by the police.

Most Account Freezing Orders will be made “without notice”, (i.e. the defendant will no be told that an application is being made before the hearing), but there is provision to apply for the order to be varied and discharged once it has been made. If your bank account has been frozen and you are not served with an order, there may be another reason for this (see our blog on Frozen bank accounts).

What is a Restraint Order?

A Restraint Order is made by the Crown Court under section 41 of the Proceeds of Crime Act 2002. It can have the effect of preventing a Respondent from dealing with any of his assets or certain specified assets. There is normally no time limit for its expiry. In most cases a Restraint Order is made without notice to a Respondent.

What is an Account Freezing Order?

An Account Freezing Order is made by the Magistrates’ Court over funds in a specified bank account. It has a maximum period of two years in duration.

Can I object to the making of an Account Freezing Order or a Restraint Order?

A Restraint Order will usually be made without notice to you, but it must be served on you immediately together with the evidence which was made to support it. You will then be able to make an application to discharge or vary it depending on the circumstances.

Applications for Account Freezing Orders are usually limited to three or four months but can be extended thereafter. If the Order is made you are entitled to make an application to discharge or to vary it at any time.

Will I be entitled to money for legal expenses from a frozen bank account?

It is not possible to vary a Restraint Order to allow for the payment of legal expenses (in respect of the alleged offence) as this is specifically prohibited by the Proceeds of Crime Act

It is possible to vary an Account Freezing Order to allow for the payment of legal expenses although this is subject to restrictions on which you should seek advice.

Will I be entitled to money for living expenses?

You are entitled to exclusions for reasonable living expenses under the terms of both Restraint Orders and Account Freezing Orders. If these are not provided for, you should seek advice on a variation application.