Gavin Irwin represents Chinese national in application for Account Freezing Orders (‘AFrOs’) by the NCA during the public health emergency

On Monday, 6 April 2020 Gavin Irwin appeared for the account holder, the Affected Person, in civil proceedings conducted by video-conference, for applications for AFrOs under s.303Z1 of the Proceeds of Crime Act 2002.

With City of Westminster Magistrates’ Court effectively closed but virtually open, as a result of emergency measures taken to halt the spread of the corona virus, the ambit of the Magistrates’ Courts (Freezing and Forfeiture of Money in Bank and Building Society Accounts) Rules 2017 was brought into sharp focus.

The previous week, a hastily convened, ‘on-notice’, telephone hearing had been arranged but was adjourned when it was submitted that it was necessary, under Rule 13, for the court to hear sworn evidence.  It was agreed that could not be done by telephone.  It was also agreed that, in the hiatus between the hearings, there was no power to make an interim freezing order and it was therefore open to the Affected Person to deal with their funds.

Conducting any hearing that is not ‘in-person’ raises logistical problems and poses additional challenges to the management of the hearing; the more so when none of the parties or witnesses is able to attend court.  Advocates should ensure that they:

• suggest having a ‘dry-run’ with the judge – some judges are highly techno-literate, others less so: by ensuring that the video-conference facility actually works, the hearing is less likely to be abandoned and rescheduled, or to take all day
• keep in regular contact with opponents in the run-up to the hearing – there is no opportunity for any last-minute, private discussion to resolve issues
• think through the logistics – having two lap-tops running simultaneously is almost essential: one for viewing documents, the other for the video-conference
• provide a core bundle of documents to all participants and be able to transfer additional documents at short notice, by email, during the hearing – remember to label documents clearly and concisely

During the parliamentary debates relating to the implementation of Chapter 3B of the 2002 Act, the Minister of State responsible for the legislation stated that “[f]reezing someone’s property is a very invasive measure and may not be necessary in every case … It is also important to note that if property is frozen, the court may quite reasonably expect the case to progress at a quicker pace.”  (Hansard HC vol 617 col 90, 17 November 2016).

Quite how that sits with the inevitable, corona virus slow-down of investigations will be explored over the coming weeks.

Gavin is representing a number of individuals whose accounts have been frozen and/or assets restrained under the Proceeds of Crime Act 2002.

Gavin Irwin was instructed by Siobhain Egan at Lewis Nedas Law.