Overseas Production Orders: Potential Challenges

Rupert Bowers KC of Doughty Street Chambers examines some potential challenges to the use of Overseas Production Orders.

Overseas Production Orders (‘OPOs’) in the context of modern criminal investigations involving electronic data were prefaced in an earlier article published here in April 2021. The provisions of The Crime (Overseas Production Orders) Act 2019 came into force on 9 October 2022 and it may be predicted that OPOs will now become a major part of the investigative landscape in the coming years.

The Purpose of OPOs

The purpose of OPOs is to streamline the process of obtaining electronic material between jurisdictions which was previously dependent on the cumbersome system of mutual legal assistance. The new system is reciprocal and relies on the existence of a bilateral agreement between the two jurisdictions involved. Currently there is but one agreement, between the UK and the USA (‘the Agreement’).

Large criminal investigations routinely involve both a transnational element and also the desire to acquire electronic data, in the form of communications and the like, from companies outside the jurisdiction. OPOs are to be aimed at companies abroad that hold such material.

The Nature of OPOs

Domestically an application for an OPO is made to the Crown Court. The criteria that must be satisfied are not dissimilar from a domestic production order but any application must specify the designated international co-operation arrangement by reference to which the application is made (s.1(2)(a)) and specify or describe the electronic data in respect of which the order is sought (s.1(2)(b)).

Before the Court may issue an OPO it must be satisfied that the data described or specified satisfies the criteria in section 4. These are that there are reasonable grounds to believe that the person against whom the order is sought is outside the UK and is party to or participates in the referenced international co-operation arrangement, that an indictable offence has been committed and is either under investigation or being prosecuted, or alternatively the order is sought for the purposes of a terrorist investigation, that the subject of the order has possession or control of the whole or part of the data described or specified, that the data is likely to be of substantial value to the investigation or proceedings, that it is likely to be relevant evidence and that it is in the public interest to issue the OPO.  

These criteria are largely familiar from the domestic context of search warrants and production orders as is the exclusion of material known as “excepted electronic data” under section 3 which covers legally privileged material and personal records which are confidential.

Procedurally, section 10 of Part 47 of the CrimPR deals with applications for OPOs. Applications may generally be dealt with without a hearing. An application must be served on the Respondent and any person affected by the order sought if the Court so directs but notice of the application must be served on any person affected unless the court otherwise directs. Therefore the person whose data is sought, usually the suspect, should be on notice (at the least) that the application is being made even if the actual application is not served upon him or her.

Challenges

A person affected by an OPO, or a Respondent, may apply to the Crown Court to vary or set it aside and any such decision may be subject to judicial review. That the criteria are not made out, or the wording of the order is too broad or non-specific or reaches to excepted electronic data will be familiar areas of challenge common to production orders and search warrants under other legislation.

Perhaps more interesting is the operation and effect of the Agreement which is not entirely consistent with the terms of the Act. Domestically the Secretary of State may only serve an OPO if he or she considers that do so would be in accordance with the relevant international co-operation agreement (s.9(4)).

Whilst a challenge to the OPO itself could only realistically be mounted in this jurisdiction one can readily envisage challenges to its execution or enforceability being mounted in the receiving country by reference to domestic privacy and confidentiality laws and to the referenced international co-operation agreement. How, for example, will an OPO be enforced by the UK authorities if the US company to who it is directed fails to comply? Paragraph 11 of Article 5 of the Agreement references a procedure whereby a targeted company in the receiving state may raise objections with the Designated Authority (the Applicant) in the requesting state, quite how that would work in practice is not known, but it may be considered that such a process would take some considerable time, thereby undermining the speed which is the aim of the legislation.

Further, given that it is a requirement that any application for an OPO specifies the designated international co-operation arrangement by reference to which the application is made there is a problem if the terms of the Act are inconsistent with the Agreement. An obvious example is that while domestically an OPO may issue where there are reasonable grounds to believe an indictable offence has been committed, the Agreement refers to the purpose of the Agreement being to combat “serious crime” which is defined in Article 1 paragraph 14 as an offence punishable with a maximum term of at least 3 years. That in itself begs the question of whether equivalence in terms of punishment for the offence under investigation is required in both jurisdictions.

It can be envisaged that there will be many challenges to OPOs once they start to be used, these coming from both Respondents and those affected by the orders and that these challenges, depending upon the vigour of those involved, are likely to be mounted in both the requesting and receiving states.

Rupert leads the chambers Business Crime & Investigations team in Doughty Street maintaining a practice in financial crime and extradition, and data protection and information rights, with expertise in ancillary matters associated with criminal investigations and data breaches.