Q&A – 24 October 2022
Bank account frozen by police
My account has been frozen by the Police for the last four months now. The bank states that they got a letter from the Police instructing them to freeze my account because there is an ongoing investigation pertaining to the money deposited in my account. I have not been interrogated by the Police in connection with any offence but two weeks before my account was frozen, my husband was arrested and interrogated apparently for defrauding his employer. He was detained at a Police lockup for two days before he was released on bail. May I know if Police have the power to order a bank account to be frozen without any pending investigation against the account holder? For how long can the Police freezing order stay in force? What can I do to challenge the Police freezing order in order to operate my account?
Section 31A of the Proceeds of Crime Act [Cap.256 R.E 2019] gives the Inspector General of Police or the Director of Criminal Investigation power to order freezing of a bank account where the IGP or the DCI have reasonable grounds to believe that the fund in the account holder’s bank account is attributed to the commission of a serious offence. Section 3 of the Proceeds of Crime Act defines serious offence as an offence which attracts the death penalty or imprisonment for a term not less than 12 months. The definition of the term serious offence also covers any offence in which there are proceeds generated from the commission of an offence even though the offence attracts less than 12 months imprisonment.
The IGP or the DCI may authorise or direct a police officer of or above the rank of Assistant Superintendent of Police to issue a freezing order of a bank account. Where a police freezing order is not signed by the IGP or DCI, the bank has the duty to demand from the signatory of the police freezing order proof that the signatory signed the order whilst acting under the direction or authority of the IGP or DCI.
It should be noted that the police freezing order is only valid for a period of 14 days. After 14 days, the police freezing order automatically expires unless it is extended by a Court’s order. Before the expiration of the period of validity of police freezing order, the Director of Public Prosecutions is supposed to make an ex-parte application to the Court for extension of the lifespan of the police freezing order. An application for extension of the period of validity of the police freezing order is made by way of chamber summons supported by an affidavit of the investigator. The investigator should prove by way an affidavit that there are reasonable grounds on which the police suspects that the money held in the frozen account is likely to be the proceeds of crime acquired directly or indirectly from the commission of a serious offence which is under police investigation and that the person being investigated has an interest in or control of the funds in the frozen account.
The Court should also be satisfied that reasonable steps have been taken to investigate the offence. What the Police is required to prove in order to freeze an account or seek extension of the period of validity of the freezing order is the link between the crime under their investigation and the funds in the account they want to freeze or they have frozen. It is not necessary that the suspect should be the account holder of the frozen account. At a stage of freezing order all that the investigator has to prove is reasonable suspicion that there is a link between the funds in the account and the crime under investigation. Reasonable suspicion is enough to warrant issuing a freezing order by the police or extension of the period of validity of the Police freezing order by the Court.
The Court can extend the period of police freezing order for 12 months only unless a second extension for another period of 12 months is sought and obtained. However, once a charge is filed in Court before the expiry of the period extended by the Court, the freezing order so extended by the Court shall continue to operate until the charge is withdrawn or the accused is acquitted or a contrary order regarding the freezing order is made by the Court such as an order to unfreeze the account.
On how to challenge a freezing order, a person aggrieved by police freezing order can apply to Court to vary or set aside the police freezing order, be it original freezing order or the extended freezing order. Section 31A(3) of the Proceeds of Crime Act, gives power to the Court to vary or set aside the freezing order issued by the police or extended by the Court. A person applying for variation or setting aside of the police freezing should prove that the order is no longer required or that the money frozen in the account is not related to the offence being investigated by the police. The application to unfreeze an account should be by way chamber summons supported by an affidavit of the person whose account has been frozen.
You can approach the Court for a declaratory order that the freezing order of the police has expired and ask the Court to order the bank to unfreeze your account. The law does not provide who should be made the respondent in the application to unfreeze a bank account frozen by police. In our view the application for unfreezing of the bank account can be made against the officer of the Police who signed the freezing order or it can simply be filed against the Republic as the respondent and a copy of it served to the Director of Public Prosecutions.