Crime (Overseas Production Orders) Act 2019

Commentary on provisions of Act

Section 1: Making of overseas production order on application

14. This section enables a judge to make, on application by an appropriate officer, an overseas production order. An overseas production order is an order that requires an overseas person (pursuant to the requirements for making an order in section 4) to produce stored electronic data (defined in section 3) or requires such a person to give access to electronic data.
15. The section defines an overseas production order and sets out what it must contain, including in relation to an underlying international co-operation arrangement and the scope of data that can be sought by an applicant.
16. An application for an overseas production order may only be made by an appropriate officer (defined in section 2) who is required to specify or describe the electronic data being sought in the application. When making an application, the appropriate officer must have reasonable grounds to believe that the electronic data that is sought and specified in the application does not include or consist of excepted electronic data. Excepted electronic data is defined in section 3.
17. An application for an overseas production order must specify the international co-operation arrangement by reference to which the application is being made. Only arrangements which have been designated for the purposes of the Act by the Secretary of State may be specified. Subsection (5) provides the Secretary of State with the power to make regulations containing such designations. Only an international cooperation arrangement that is a "relevant treaty" relating to co-operation or mutual assistance in the investigation or prosecution of criminal matters to which the UK is a party may be designated. Subsection (6) defines a relevant treaty as a treaty that has been laid by a Minister of the Crown before Parliament under s20(1)(a) of the Constitutional Reform and Governance Act 2010.
18. Subsection (7) defines "judge" for the purposes of the Act, with the effect that only the types or descriptions of judges listed have the power to make an overseas production order.

Section 2: Appropriate officers

19. This section defines the meaning of "appropriate officer", with the effect that only those categories or descriptions of persons listed can make an application for an overseas production order. Separate provision is made in relation to England, Wales and Northern Ireland; and in relation to Scotland.
20. Some categories of appropriate officers may only exercise functions under the Act if they are exercising that function for a particular purpose. For example, an accredited financial investigator may only exercise the function when it is for the purpose of certain types of proceeds of crime investigations. These limitations are designed to ensure that it is only where the appropriate officer is exercising functions related to their role in the investigation or prosecution of criminal conduct that they may apply for an overseas production order.
21. The Secretary of State may specify additional descriptions of appropriate officers by way of regulations. Before exercising that power in relation to Scotland, the Secretary of State must consult the Scottish Ministers (see section 17).

Section 3: Meaning of "electronic data" and "excepted electronic data"

22. This section sets out the scope of the applications and orders in relation to material that can and cannot be specified or described in the application or order, by defining "electronic data" and "excepted electronic data" and related terms.
23. "Excepted electronic data", which cannot be specified or described in an application or order, includes data that is subject to legal privilege which is defined in subsection (6).
24. "Excepted electronic data" also includes confidential personal records. A personal record is defined in subsection (7) as being a record concerning any individual, living or dead, that could identify the individual and which relates to their physical or mental health (e.g. their medical records), spiritual counselling or assistance given to them, and/or counselling or assistance given to them for the purpose of their welfare. Such records are confidential if created in circumstances giving rise to an obligation of confidentiality to the person to whom they relate, e.g. medical records, and if this obligation continues to be owed. Personal records held subject to a restriction on disclosure, or an obligation of secrecy, contained in an enactment are also confidential personal records.
25. Subsection (4) further limits the kinds of electronic data that can be specified or described in applications and orders in certain circumstances by providing that, if the overseas production order is sought against a person who is a telecommunications operator, communications data is to be treated as "excepted electronic data". "Telecommunications operator" and "communications data" are given the same meaning as in the Investigatory Powers Act 2016.
26. Where an application for an overseas production order is made for the purposes of a terrorist investigation (other than a terrorist financing investigation), subsection (5) operates so as remove the restriction on specifying or describing confidential personal records created by subsection 3(b). This reflects the equivalent domestic production order regime for terrorist investigations under the Terrorism Act 2002 (and "terrorist investigation" and "terrorist financing investigation" have the same meaning as in that Act).

Section 4: Requirements for making of order

27. This section sets out requirements which must be satisfied before an overseas production order may be made.
28. Under subsection (2), the judge considering an application must be satisfied that there are reasonable grounds for believing that the person against whom the order is sought, operates or is based in a country or territory which is outside the UK. The country or territory in which the person operates or is based must be party to an international co-operation arrangement with the UK which has been designated under section 1 (and which the person applying for the order is required to specify in the application by virtue of section 1(2)(a)). Subsection (8) sets out when a person is taken to be operating in or based in a country or territory outside the UK.
29. Under subsection (3) the judge must also be satisfied that there are reasonable grounds for believing that an indictable offence has been committed, and that proceedings for that offence have already been commenced, or the offence is being investigated. Alternatively, the judge must be satisfied that the order is sought for the purposes of a terrorist investigation. This reflects the criteria which apply when a production order is sought under corresponding domestic legislation (see e.g. paragraph 6(2) of Schedule 5 to the Terrorism Act 2000).
30. Under subsection (4), the judge must be satisfied that there are reasonable grounds for believing that the person against whom the order is sought has in their possession, or has in their control, all or part of the data being sought.
31. Under subsection (5), the judge must be satisfied that there are reasonable grounds for believing that some or all of the data that is being applied for will be of substantial value to the investigation or proceedings.
32. Under subsection (6), the judge must be satisfied that there are reasonable grounds for believing that all or part of the electronic data specified or described in an application for an overseas production order is likely to be relevant evidence in respect of the offence to which the application relates. "Relevant evidence" means anything that would be admissible in proceedings in respect of that offence. Proceedings in respect of an offence would include a person’s trial for that offence, but also other elements of the criminal process such as proceedings in relation to the making or enforcement of a confiscation order, where a person has been convicted of the offence. This relevant evidence requirement does not apply to orders sought for the purposes of a terrorist investigation, so as to reflect the domestic position under the Terrorism Act 2000.
33. Under subsection (7), the judge must be satisfied that there are reasonable grounds for believing that it is in the public interest for all or part of the electronic data specified or described in the application to be produced. In considering whether something is in the public interest, the judge must consider the likely benefit to the proceedings or investigation if the electronic data is produced or made available, and also the circumstances under which the person who would be required to produce the data under the order has possession or control of it.
34. The Secretary of State may specify further additional requirements (by way of regulations) that must be met in order for an overseas production order to be made (Section 4(1)(b)). Notwithstanding the existence of any additional requirements introduced by virtue of this provision (which may be specified to apply to all or to a category of applications), the requirements set out in subsections (2) to (7) will still have to be met in every case.

Section 5: Contents of order

35. The purpose of this section is to set out what the order must or must not contain, in terms of specifying the data that is to be produced, or to which access is to be given, where the judge is satisfied that, based on the application before them, an order should be made. The judge must not specify or describe data in the order which he or she has reasonable grounds for believing consists of or includes excepted electronic data.
36. The order may be for all or part of the data requested in the application. In reviewing the application, the judge may determine that only part of the data has met the necessary requirements and, in this event, only this part of the requested data should be identified in the order (consistent with the implicit requirement to exercise the order-making power reasonably).
37. Subsection (1) explains that an order may be made in respect of all or part of the data sought in the application subject to the exceptions in subsection (2). Subsection (2) explains that the judge may not include excepted electronic data in the order. Subsection (3) explains that the judge cannot include data in relation to which other legal tests in section 4 have not been satisfied.

Section 7: Variation or revocation of order

38. This section permits a judge to vary or revoke an overseas production order where a person defined in subsection (2) makes an application. The person affected by the order may apply for a variation or revocation, as may the appropriate officer who applied for it. Likewise, the Secretary of State or Lord Advocate who is responsible for serving the order (see section 9), may also apply for it to be varied or revoked.
39. The application for a variation must specify the relevant designated international co-operation arrangement by reference to which it is made, and must specify or describe the data in respect of which the varied order is sought. Excepted electronic data may not be specified, and the judge may only vary the order to the extent that the requirements imposed by section 4 continue to be fulfilled.

Section 8: Inclusion of non-disclosure requirement in order

40. This section enables the judge who is making an overseas production order to include a requirement on the person against whom the order is made, not to disclose the existence or contents of the order unless leave is given by a judge (as defined in section 1) or with written permission from the appropriate officer who applied for the order or an equivalent officer.
41. When imposing a non-disclosure requirement, subsection (3) requires a judge to specify when that requirement expires (a non-disclosure requirement cannot be open ended).
42. At the time of revoking an overseas production order, the judge may order that any unexpired non-disclosure requirement imposed as part of that order is to continue to have effect. This may be appropriate, for example, where it is clear to the judge that a further overseas production order may be sought. Such an order may specify or describe a different time when the non-disclosure requirement is to expire than that specified or described in the overseas production order that is being revoked.

Section 9: Restrictions on service of order

43. This section provides that the only person who may serve an overseas production order made in England, Wales or Northern is the Secretary of State. In relation to an order made in Scotland, the only person who may serve it is the Lord Advocate. An overseas production order may only be served if the Secretary of State or, as the case may be, the Lord Advocate consider that to do so would be in accordance with a designated international co-operation agreement.
44. An overseas production order must be served within three months, beginning with the day on which it is made. If it is not served within this period, then it is treated as having been quashed and ceases to have effect.

Section 10: Retention of electronic data and use as evidence

45. This section relates to the retention of electronic data produced under an overseas production order. It permits the retention of electronically stored data for as long as is necessary in all the circumstances, subject to the applicable obligations on the processing of personal data in the data protection legislation (defined in section 18), including for use as evidence in proceedings in respect of an offence.
46. Subsections (3), (4) and (5) ensure that the data produced under an overseas production order can be used as evidence in UK criminal proceedings without further formality.

Section 11: Procedural matters

47. This section provides that rules of court may be used to specify the process that should be followed by the court in relation to proceedings that relate to overseas production orders (which include proceedings for the variation, making or revocation of an order under section 8(4) or 13(3) or 4(b)).
48. Under subsection (4), orders made under the Act in England and Wales by a judge entitled to exercise the jurisdiction of the Crown Court, or by a Crown Court judge in Northern Ireland, have effect as if they were orders of the Crown Court. The effect of this provision is that a person who fails to comply with such an order may be held in contempt in the same way as if they had failed to comply with a domestic production order. Similar provision in relation to Scotland is not necessary to ensure that non-compliance with an overseas production order is also enforceable there through contempt proceedings. This provision does not apply to orders made in the service jurisdiction by a Judge Advocate (see section 15 (application of the Act to service police), which contains a separate mechanism for non-compliance).

Section 12: Notice of application for order: journalistic data

49. This section stipulates that an application for an order must be made on notice if there are reasonable grounds for believing the electronic data sought consists of or includes journalistic data, subject to the exceptions in subsection (6). Where this provision applies, this section sets out that notice of the application must be served on the person against whom the overseas production order is sought (e.g. a communications service provider) and, if different, the person by whom or on whose behalf the journalistic data is stored (i.e. the journalist). This will enable those put on notice (including journalists) to be party to any such application heard by a court. Subsection 4 of this section sets out that a judge may direct that notice of an application is not required to be served on a journalist in cases where notice would prejudice the investigation of an indictable offence or a terrorist investigation, or where practically it would not be possible to identify or contact the relevant person.

Section 13: Effect of notice of application

50. Section 13 provides that a person who has been given notice of an application for an overseas production order must not hide, destroy or alter the electronic data specified in the application, and must not disclose the making of the application or its contents to any person without the leave of a judge or written permission from the person applying for the order or an equivalent officer. The aim of this provision is to protect evidence (and prevent prejudice to an investigation) whilst providing the opportunity for affected parties to participate in proceedings considering access to such material.
51. Subsections (3), (4) and (5) set out when the duty ceases to apply. Under subsection (3), a judge may order that the duties imposed by this section should continue to apply even where the application for the overseas production order is dismissed or abandoned. For example, this may apply where not to do so may prejudice the investigation. A judge may also order (under subsection (4) that the duty of non-disclosure (see subsection (1)(b)) should continue to apply after the point at which an order is made on the application., for example, where to notify a person would result in the subject being tipped off and impacting negatively on an investigation. In both cases, the judge must specify or describe when the duty is to cease to apply. Rules of Court will govern the procedure for applications to vary or revoke such orders.

Section 14: Means of service

52. This section sets out how an order, notice of an application, and any other documents made by a court relating to an overseas production order can be served on a person. Such order, notice or document can be served, including electronically (e.g. service via email), by any means set out and permitted by rules of court. Additionally, service can be affected on a person outside the UK by serving it on their principal UK office or nominated UK address or, in certain circumstances, by making it available for inspection at a place in the UK. Where a person has no principal office in the UK, documents can also be served at any place in the UK where that person carries on business or conducts business activities. This would include, for example, the London office of a telecommunications company incorporated in another country. Service can also be made in accordance with such administrative arrangements as might be made by the Secretary of State or, in relation to Scotland, the Lord Advocate.

Section 15: Application of Act to service police

53. This section enables a judge advocate to make an overseas production order on an application by a member of a service police force, for the purposes of investigating or prosecuting certain offences within the service jurisdiction. The provision makes further modifications to the Act to reflect the differences between the service jurisdiction and the UK general criminal jurisdictions, including in relation to enforcement (see subsections (4) to (6)).

Section 16: Designation of international agreements for purposes of section 52 of Investigatory Powers Act 2016

54. This section amends section 52 of the Investigatory Powers Act 2016, which sets out the conditions which need to be met in order that a telecommunications operator may intercept the communications of an individual at the request of the authorities of another country. Those conditions include that the request is made pursuant to a "relevant international agreement" to which the United Kingdom is a party, and which has been designated for the purposes of that section. Where the other country is one which retains the death penalty, this section restricts the Secretary of State’s ability to designate a relevant international agreement unless he or she has sought a written assurance or written assurances relating to the non-use of information obtained by virtue of that agreement in connection with proceedings for an offence where the death penalty might be imposed.

Section 17: Regulations

55. This section makes provision for the regulations that may be made by the Secretary of State under the Act. Where the Act confers a power to make regulations, that power is exercisable by statutory instrument.
56. Subsection (3) provides that the Secretary of State must consult Scottish Ministers before making regulations under section (2)(1)(v) specifying additional categories of appropriate officers empowered to apply for overseas production order in Scotland.
57. A statutory instrument containing regulations under section 4(1)(b) (which provides the power to specify additional requirements which must be satisfied before an overseas production order may be made must be laid in draft and approved by each House of Parliament before being made (i.e., is subject to the draft affirmative procedure).
58. Any other statutory instrument containing regulations made under the Act (other than commencement regulations made under section 20), is subject to annulment in pursuance of a resolution of either House of Parliament (i.e. is subject to the negative resolution procedure).

Section 18: Interpretation

59. This section lists the definitions for various terms used in the Act, including: appropriate officer; the data protection legislation; designated international co-operation arrangement; electronic data; excepted electronic data; judge; and overseas production order.
60. This section also clarifies that references in this Act to "proceedings relating to an overseas production order" include proceedings for the making, variation or revocation of an order made under section 8(4) or 13(3) or (4)(b).

Section 19: Extent

61. This section sets out the territorial extent of the Act. The Act extends to the whole of the United Kingdom (except for the amendments made by Section 10(3) and (4) which have the same extent as the enactment being amended).

Section 20: Commencement

62. This section makes provision for the Act to come into force on a certain day or different days as appointed by the Secretary of State in regulations. This section and sections relating to the making of regulations, interpretation, extent and the short title come into force the day the Act is passed. Otherwise the sections of the Act come into force in accordance with regulations made by the Secretary of State, who may also make transitional, transitory or savings provisions in connection with the coming into force of any provision in the Act.

Section 21: Short title

63. This section is self-explanatory.