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Overseas Production Orders

21 March 2019

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Article by: Taimoor Tarafdar

 

The Crime (Overseas Production Orders) Act 2019 received Royal Assent on 12th February 2019, which introduces a new tool for overseas evidence gathering for criminal investigation bodies: The Overseas Production Order (OPO).

 

Hitherto overseas evidence gathering has been dealt with predominantly using mutual legal assistance from external countries. The main criticism to this process is the time it takes for evidence to eventually reach these shores, in some cases years. Long delays can often render the evidence sought useless due to the timing.

 

Enter OPOs. Faster, streamlined and available without any assistance or consent from the external country. These Orders can be sought from the Courts without any notice on the recipient, or the person affected by the information. However, once the Order has been made the recipient can apply to the country serving the Order to have it varied or revoked. The person affected by the Order (e.g. the defendant or suspect in an investigation) cannot apply to vary or revoke the Order under this Act as he/she is not the recipient of the OPO; however, they may have other recourse such as an application under Data Protection or Right to Privacy as enshrined in the European Convention of Human Rights.

 

The Domestic Court may make the Order on application provided –
1. An indictable offence is being investigated/prosecuted;
2. The intended recipient of the Order has control over the requested material;
3. The requested material is relevant to the proceedings or investigation;
4. The requested material has substantial value to the proceedings or investigation;
5. It is in the public interest to make the Order.

 

Currently the OPO only applies to UK/US as there is a designated international cooperation arrangement between the countries. This could include other countries in the future where such arrangements exist. Nevertheless, this provides a means for UK law enforcement to gain access to a particularly important area of data that has previously remained elusive – electronic ‘server-based’ evidence. Most of the servers for the main social media companies (Facebook, Twitter, WhatsApp, Instagram, YouTube, google etc.) are in the US, therefore this type of data can now be sought through OPOs where previously other less efficient methods had to be employed by the prosecution/investigating body.

 

What happens if the recipient of the Order does not comply with the Order? They could be held in contempt of court, which, given that it is not an extraditable offence, may not carry much teeth. However, it is more likely that the bad publicity in failing to cooperate with such an Order that these tech giants would want to avoid, would be the OPOs best means of enforcement.

 

What does the Act mean for the defendant or person under investigation? This Act represents the increasing trend of greater investigative powers for law enforcement at the expense of the individual’s right to privacy. Such evidence will be admissible in criminal proceedings until an appropriate challenge is made. What that challenge may be, whether it relates to the way information is stored on servers that may deem it unreliable, or whether the challenge comes from the recipient of that Order, remains to be seen.

 

Will this Act be the HMS Victory for law enforcement? Only time will tell.

 

Should you require further advice in this matter, please do not hesitate to contact our specialist team.

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