In September 2018, we reported on the Crime (Overseas Production Order) Bill (“Bill”) – which was the UK’s attempt at expediting the cumbersome process that UK law enforcement agencies (“LEAs”) navigate when seeking to obtain data that is held overseas as part of a criminal investigation and/or prosecution. It was the case that in order to obtain overseas data, the only route available to gather such evidence would be via the Mutual Legal Assistance channel, which was seen as sluggish, and potentially riddled with red tape.
Following its passage through Parliament, the Crime (Overseas Production Orders) Act 2019 (“Act”) received Royal Assent in February 2019. Once its operative provisions are in force, the Act will lend much needed support to criminal investigations and/or prosecutions undertaken by LEAs.
Under the Act, an overseas production order (“OPO”) will be granted by a Crown Court judge on the application of “an appropriate officer”, which for the purposes of the Act is defined as a police constable, member of the Serious Fraud Office, an accredited financial investigator, or a person appointed by the Financial Conduct Authority. Before such an application is granted, a Crown Court judge must be satisfied that there are reasonable grounds for believing that the person against whom an OPO is sought:
- operates in a country outside the UK, which is party to, or participates in, the designated international co-operation arrangement specified in the application; or
- is based in a country outside the UK, which is party to, or participates in, the designated international co-operation arrangement specified in the application.
A “designated international co-operation arrangement” is defined in the Act as a relevant treaty which relates to the provision of mutual assistance in connection with the investigation or prosecution of offences. The UK is yet to enter into a designated international co-operation arrangement with another country, albeit negotiations are ongoing with the USA.
In addition, a Crown Court judge must also be satisfied that there are reasonable grounds for believing that:
- an investigation has begun or proceedings have commenced in respect of an indictable offence;
- the person against whom the OPO is sought has possession or control of all or part of the electronic data;
- all or part of the electronic data is likely to be of substantial value to the investigation/proceedings;
- all of part of the electronic data is likely to be relevant evidence in respect of the offence; and
- it is in the public interest to grant the order for all or part of the electronic data to be produced
If an OPO is granted, and subject to any application by the recipient to a UK court to revoke/vary the OPO, the data to which it applies must be produced by the recipient within seven days of the OPO’s service.
Despite its aims, and efforts to speed up investigations and/or prosecutions, the Act does come in for some criticism, as noted when the Bill was first introduced. One main point of criticism is that the Act fails to provide any meaningful penalty for non-compliance. Although a person who fails to comply with an OPO will be in contempt of court – that offence is not one to which a relevant person can be extradited. That said, if served with an OPO, corporates may seek to adopt a proactive request in order to comply with the OPO in order to limit any reputational and/or financial fall out.
Although an interesting, and timely addition to an LEA’s armoury when investigating crime that is evidenced through the use of data, the effectiveness of the Act will rest on how quickly designated international co-operation arrangements are forged, and the speed at which information is eventually shared with UK LEAs given the provision in the Act for recipients to apply to vary/discharge OPOs.
Authored by Iskander Fernandez
White collar crime and investigations partner