Serious Organised Crime and Police Act 2005

Serious Organised Crime and Police Act 2005

2005 CHAPTER 15

The Act

Commentary on Sections

Chapter 6: Proceeds of Crime

Section 98: Civil recovery: freezing orders

218. The Proceeds of Crime Act 2002 makes provision for the Director of the Assets Recovery Agency (ARA) to be able to apply to the High Court for a property freezing order in civil recovery cases under Part 5 of that Act. The effect of section 246(2) and (7) of that Act is that an interim receiver had to be appointed in every case. Section 98 has the effect of allowing the Director of the ARA in England, Wales and Northern Ireland to be able to apply for a property freezing order as an alternative to an order appointing a receiver, and makes similar provision for Scotland for the Scottish Ministers to apply for a prohibitory property order.

219. Except in Scotland, this section and the associated amendments in Schedule 6 also have the effect of enabling defendants who are subject to civil proceedings to have access to their frozen assets in order to fund the cost of their legal representation. Schedule 6 amends section 252(4) of POCA which prevents defendants in England, Wales and Northern Ireland from being able to fund their legal defence in this way and allows for “reasonable” living expenses to be drawn down from frozen assets named in an order. The amounts able to be drawn down are controlled to avoid dissipation of assets. This can be achieved by prior assessment from the court in accordance with any regulations made by the Lord Chancellor for the purpose and the agreement of the enforcement authority. In Scotland, respondents to an action for civil recovery will continue to be prevented from using frozen assets to fund the cost of legal representation. The intention is that legal aid will continue to be available to them where eligible. The amendment for Scotland still allows, as before, access to funds to meet “reasonable” living expenses or in order to carry on any trade, business, profession or occupation.