It is not just people suspected of crime, or defendants in criminal proceedings, who may have their assets restrained pending investigation, or find their ownership of assets is in jeopardy as a result of confiscation or Detention/Forfeiture of cash proceedings.
Innocent spouses, relatives, friends or business associates may find that the authorities seek to attribute, or the Court determines, that ownership of an asset belongs to a defendant even when it is not registered in the defendant’s name or the defendant may have a part interest only.
A Court order can prevent you from dealing with your asset, selling the asset, or even accessing monies in your bank account. A Court order may even have assumed that you have no genuine interest in the asset without having heard any evidence from you. Protecting your interest may require steps to vary a Restraint Order, opposing an application for detention/forfeiture of cash, or to prevent the Court from appointing an Enforcement Receiver who would otherwise take over the registered owners rights and sell such property or, lastly, opposing the Receiver’s attempt to sell your property over your head.
Sometimes you will need to take urgent action to protect your interests; sometimes it is better to adopt the ‘wait and see’ attitude. Often the problem will be that you have to find money to claim your own property as legal aid is unlikely to be available to you. The problem is that you seem to be powerless while the Criminal Justice System appears to ride roughshod over your rights.
Since the Serious Crime Act 2015 (which amended the Proceeds of Crime Act 2002 by adding section 18A) it is possible for the crown court judge to order a person with an interest in any asset to give it information that it will set out in an order. Failure to respond can seriously damage your financial health. However, government has done what it can to make life difficult as there is no legal aid to cover the cost and you are very unlikely to be awarded your costs if you are successful. Early advice should at least keep the costs down and do the most to safeguard your interest.