I have been served with a Production Order. What should I do?
A Production Order requires a person to provide material in their possession to an appropriate officer or to allow access to the material. Production Orders can be obtained by the Police, Her Majesty's Revenue and Customs (HMRC), the National Crime Agency (NCA), the Serious Fraud Office (SFO) and other authorities deemed to be ‘appropriate officers’.
This article will focus on the power to make Production Orders from two legislative sources: i) under section 345 of the Proceeds of Crime Act 2002 (POCA) and ii) under Schedule 1 Police and Criminal Evidence Act 1984 (PACE). A Production Order under POCA is used for money laundering investigations together with confiscation investigations and civil recovery investigations. A PACE Production Order is used in other criminal investigations to secure access to ‘special procedure material’ which is material created or obtained in the course of a business and normally held in confidence. However, Production Orders under either POCA or PACE cannot include provision for legally privileged documents.
Do I have to provide the material requested?
Under both POCA and PACE failure to comply with a Production Order may be deemed to be a contempt of court for which an individual may be fined or imprisoned. If the material is in your possession (and not subject to exemption such as legal privilege) then you are obliged to provide the material to avoid punishment.
How long do I have to provide the material?
Most Production Orders will require the material to be supplied within 7 days although it is possible to agree an extension of the time required sometimes by consent with the authority who has obtained the Production Order.
I am not sure if I have been served with a Production Order or a Request for Information?
Seemingly in order to save time some, Police forces are using a Form DP2 as a ‘request to external organisation for the disclosure of personal data to the police’. This is a formal request for disclosure and provides the recipient with reassurances that provision of the material is compliant with both the Data Protection Act 2018 (DPA) and the General Data Protection Regulations (GDPR). However, this is a request and there is no compulsion to require the recipient to provide the material requested.
How are Production Orders obtained?
The law governing the application and granting of Production Orders is set out in the appropriate statutes and differ according to the application being made. Applications for a Production Order are usually made 'without notice' (ex parte) and therefore scrutiny is limited to the judge hearing the application at first instance. Mistakes can occur where the wrong type of information has been requested and/or the Order is incorrectly addressed.
Can I challenge a Production Order?
Any challenge to a Production Order must be served before the deadline expires, usually within seven days. An application will need to be made to the Court who granted the Production Order.
Should I seek legal advice?
It is normally prudent to seek specialist legal advice at the earliest opportunity. This is particularly so given the prospective penalties for non-compliance, the limited time available to challenge an order and because a person served with an order may be or become a suspect within the investigation.
If you have been served with a Production Order or a Request for Information and wish to seek specialist legal advice click here for more information on Brett Wilson LLP’s areas of expertise or call 020 7183 8950
Articles are intended as an introduction to the topic and do not constitute legal advice.