Part 8Investigations

C31Chapter 2England and Wales and Northern Ireland

Annotations:
Modifications etc. (not altering text)
C31

Pt. 8 Ch. 2: power to modify conferred (20.3.2015) by Crime and Courts Act 2013 (c. 22), ss. 47, 61(2); S.I. 2015/813, art. 2(b)

Production orders

I1345 Production orders

1

A judge may, on an application made to him by an appropriate officer, make a production order if he is satisfied that each of the requirements for the making of the order is fulfilled.

2

The application for a production order must state that—

a

a person specified in the application is subject to a confiscation investigation F16, a civil recovery investigationF3, an exploitation proceeds investigation or a money laundering investigation, or

b

property specified in the application is subject to a civil recovery investigation F18or a detained cash investigationF18, a detained cash investigation, a detained property investigation or a frozen funds investigation.

3

The application must also state that—

a

the order is sought for the purposes of the investigation;

b

the order is sought in relation to material, or material of a description, specified in the application;

c

a person specified in the application appears to be in possession or control of the material.

C1C10C19C254

A production order is an order either—

a

requiring the person the application for the order specifies as appearing to be in possession or control of material to produce it to an appropriate officer for him to take away, or

b

requiring that person to give an appropriate officer access to the material,

within the period stated in the order.

5

The period stated in a production order must be a period of seven days beginning with the day on which the order is made, unless it appears to the judge by whom the order is made that a longer or shorter period would be appropriate in the particular circumstances.

I2346 Requirements for making of production order

1

These are the requirements for the making of a production order.

2

There must be reasonable grounds for suspecting that—

a

in the case of a confiscation investigation, the person the application for the order specifies as being subject to the investigation has benefited from his criminal conduct;

F17b

in the case of a civil recovery investigation—

i

the person the application for the order specifies as being subject to the investigation holds recoverable property or associated property,

ii

that person has, at any time, held property that was recoverable property or associated property at the time, or

iii

the property the application for the order specifies as being subject to the investigation is recoverable property or associated property;

F2ba

in the case of a detained cash investigation into the derivation of cash, the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;

bb

in the case of a detained cash investigation into the intended use of cash, the property the application for the order specifies as being subject to the investigation, or a part of it, is intended by any person to be used in unlawful conduct;

F19bc

in the case of a detained property investigation into the derivation of property, the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;

bd

in the case of a detained property investigation into the intended use of property, the property the application for the order specifies as being subject to the investigation, or a part of it, is intended by any person to be used in unlawful conduct;

be

in the case of a frozen funds investigation into the derivation of money held in an account in relation to which an account freezing order made under section 303Z3 has effect (a “frozen account”), the property the application for the order specifies as being subject to the investigation, or a part of it, is recoverable property;

bf

in the case of a frozen funds investigation into the intended use of money held in a frozen account, the property the application for the order specifies as being subject to the investigation, or a part of it, is intended by any person to be used in unlawful conduct;

c

in the case of a money laundering investigation, the person the application for the order specifies as being subject to the investigation has committed a money laundering offence.

F4d

in the case of an exploitation proceeds investigation, the person the application for the order specifies as being subject to the investigation is within subsection (2A).

F52A

A person is within this subsection if, for the purposes of Part 7 of the Coroners and Justice Act 2009 (criminal memoirs etc), exploitation proceeds have been obtained by the person from a relevant offence by reason of any benefit derived by the person.

This subsection is to be construed in accordance with that Part.

3

There must be reasonable grounds for believing that the person the application specifies as appearing to be in possession or control of the material so specified is in possession or control of it.

4

There must be reasonable grounds for believing that the material is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought.

5

There must be reasonable grounds for believing that it is in the public interest for the material to be produced or for access to it to be given, having regard to—

a

the benefit likely to accrue to the investigation if the material is obtained;

b

the circumstances under which the person the application specifies as appearing to be in possession or control of the material holds it.

I3347 Order to grant entry

1

This section applies if a judge makes a production order requiring a person to give an appropriate officer access to material on any premises.

2

The judge may, on an application made to him by an appropriate officer and specifying the premises, make an order to grant entry in relation to the premises.

C11C2C20C263

An order to grant entry is an order requiring any person who appears to an appropriate officer to be entitled to grant entry to the premises to allow him to enter the premises to obtain access to the material.

I4348 Further provisions

C6C8C29C17C23C151

A production order does not require a person to produce, or give access to, privileged material.

C6C8C29C17C23C152

Privileged material is any material which the person would be entitled to refuse to produce on grounds of legal professional privilege in proceedings in the High Court.

C6C8C29C17C23C153

A production order does not require a person to produce, or give access to, excluded material.

C6C8C29C17C23C154

A production order has effect in spite of any restriction on the disclosure of information (however imposed).

C12C21C27C35

An appropriate officer may take copies of any material which is produced, or to which access is given, in compliance with a production order.

6

Material produced in compliance with a production order may be retained for so long as it is necessary to retain it (as opposed to copies of it) in connection with the investigation for the purposes of which the order was made.

C4C21C27C137

But if an appropriate officer has reasonable grounds for believing that—

a

the material may need to be produced for the purposes of any legal proceedings, and

b

it might otherwise be unavailable for those purposes,

it may be retained until the proceedings are concluded.

I5C14C5C22C28349 Computer information

1

This section applies if any of the material specified in an application for a production order consists of information contained in a computer.

2

If the order is an order requiring a person to produce the material to an appropriate officer for him to take away, it has effect as an order to produce the material in a form in which it can be taken away by him and in which it is visible and legible.

3

If the order is an order requiring a person to give an appropriate officer access to the material, it has effect as an order to give him access to the material in a form in which it is visible and legible.

I6C18C16C24C30C9C7350 Government departments

1

A production order may be made in relation to material in the possession or control of an authorised government department.

2

An order so made may require any officer of the department (whether named in the order or not) who may for the time being be in possession or control of the material to comply with it.

3

An order containing such a requirement must be served as if the proceedings were civil proceedings against the department.

4

If an order contains such a requirement—

a

the person on whom it is served must take all reasonable steps to bring it to the attention of the officer concerned;

b

any other officer of the department who is in receipt of the order must also take all reasonable steps to bring it to the attention of the officer concerned.

5

If the order is not brought to the attention of the officer concerned within the period stated in the order (in pursuance of section 345(4)) the person on whom it is served must report the reasons for the failure to—

a

a judge entitled to exercise the jurisdiction of the Crown Court or (in Northern Ireland) a Crown Court judge, in the case of an order made for the purposes of a confiscation investigation or a money laundering investigation F13, a money laundering investigation F20or a detained cash investigationF20, a detained cash investigation, a detained property investigation or a frozen funds investigation;

b

a High Court judge, in the case of an order made for the purposes of a civil recovery investigation F6or an exploitation proceeds investigationF14...

6

An authorised government department is a government department, or a Northern Ireland department, which is an authorised department for the purposes of the Crown Proceedings Act 1947 (c. 44).

I7351 Supplementary

1

An application for a production order or an order to grant entry may be made ex parte to a judge in chambers.

2

Rules of court may make provision as to the practice and procedure to be followed in connection with proceedings relating to production orders and orders to grant entry.

3

An application to discharge or vary a production order or an order to grant entry may be made to the court by—

a

the person who applied for the order;

b

any person affected by the order.

4

The court—

a

may discharge the order;

b

may vary the order.

F215

If an accredited financial investigator, F1a F12National Crime Agency officer, a constable or F10an officer of Revenue and CustomsF8or an immigration officer applies for a production order or an order to grant entry, an application to discharge or vary the order need not be by the same accredited financial investigator, F12National Crime Agency officer, constable or F11officer of Revenue and CustomsF9or immigration officer.

F215

An application to discharge or vary a production order or an order to grant entry need not be made by the same appropriate officer that applied for the order (but must be made by an appropriate officer of the same description).

5A

If the application for the order was, by virtue of an order under section 453, made by an accredited financial investigator of a particular description, the reference in subsection (5) to an appropriate officer of the same description is to another accredited financial investigator of that description.

6

References to a person who applied for a production order or an order to grant entry must be construed accordingly.

7

Production orders and orders to grant entry have effect as if they were orders of the court.

8

Subsections (2) to (7) do not apply to orders made in England and Wales for the purposes of a civil recovery investigation F7or an exploitation proceeds investigationF15....