The Criminal Procedure (Amendment No. 2) Rules 2019

Amendments to the Criminal Procedure Rules

12.  In Part 47 (Investigation orders and warrants)—

(a) in rule 47.1 (When this Part applies) for “47.59 and 47.62” substitute “47.59, 47.62 and 47.66”;

(b) after rule 47.65 (Orders for the extension of a moratorium period under the Proceeds of Crime Act 2002; Application containing information withheld from a respondent) insert—

“SECTION 11: ORDERS FOR ACCESS TO ELECTRONIC DATA UNDER THE CRIME (OVERSEAS PRODUCTION ORDERS) ACT 2019

When this Section applies

47.66.— (1) This Section applies where the Crown Court can make an overseas production order under section 1 of the Crime (Overseas Production Orders) Act 2019(1).

(2) In this Section, a reference to a person affected by such an order includes a person by whom or on whose behalf there is stored any journalistic data specified or described in the application for that order.

[Note. Under section 1 of the Crime (Overseas Production Orders) Act 2019, on an application by an appropriate officer (defined by section 2 of the Act) a Crown Court judge may order a person (in these rules, ‘the respondent’) to produce or give access to electronic data (by section 3, ‘data stored electronically’), other than excepted such data, where, among other criteria listed in sections 1 and 4 of the Act, the judge is satisfied that—

(a) there are reasonable grounds for believing that—

(i) an indictable offence has been committed and proceedings in respect of the offence have been instituted or the offence is being investigated, or

(ii) the order is sought for the purposes of a terrorist investigation within the meaning of the Terrorism Act 2000; and

(b) there are reasonable grounds for believing that the respondent operates in, or is based in, a country or territory outside the United Kingdom which is a party to, or which participates in, a designated international co-operation arrangement.

Section 3 of the 2019 Act defines ‘excepted electronic data’ as data stored electronically that is (a) an item subject to legal privilege, or (b) a personal record within the meaning of section 3(7) (medical, etc. records) which (i) was created in circumstances giving rise to a continuing obligation of confidence to an individual who can be identified from that record, or (ii) is held subject to a restriction on disclosure, or an obligation of secrecy, contained in an enactment. Where the respondent against whom an overseas production order is sought is a telecommunications operator, within the meaning of the Investigatory Powers Act 2016, ‘excepted electronic data’ also includes communications data within the meaning of the 2016 Act. Where the investigation in aid of which an overseas production order is sought is a terrorist investigation other than a terrorist financing investigation within the meaning of the Terrorism Act 2000, ‘excepted electronic data’ does not include a confidential personal record.

Section 12 of the Act defines ‘journalistic data’ as electronic data that (a) was created or acquired for the purposes of journalism and (b) is stored by or on behalf of a person who created or acquired it for those purposes.]

Exercise of court’s powers

47.67.— (1) Subject to paragraphs (2), (3) and (4), the court may determine an application under rule 47.68 for an overseas production order, or an application under rule 47.69 to vary or revoke an order—

(a) at a hearing (which must be in private unless the court otherwise directs), or without a hearing; and

(b) in the absence of—

(i) the applicant,

(ii) the respondent,

(iii) any other person affected by the order.

(2) The court must not determine such an application in the applicant’s absence if—

(a) the applicant asks for a hearing; or

(b) it appears to the court that—

(i) the proposed order may require the production of excepted electronic data, within the meaning of section 3 of the Crime (Overseas Production Orders) Act 2019, or

(ii) for any other reason the application is so complex or serious as to require the court to hear the applicant.

(3) The court must not determine such an application in the absence of any respondent or other person affected unless—

(a) the absentee has had at least 2 business days in which to make representations; or

(b) the court is satisfied that—

(i) the applicant cannot identify or contact the absentee,

(ii) it would prejudice the investigation if the absentee were present,

(iii) where journalistic data is sought, it would prejudice the investigation of another indictable offence or another terrorist investigation if the absentee were present,

(iv) it would prejudice the investigation to adjourn or postpone the application so as to allow the absentee to attend, or

(v) the absentee has waived the opportunity to attend.

(4) The court must not determine such an application in the absence of any respondent who, if the order sought by the applicant were made, would be required to produce or give access to journalistic data, unless that respondent has waived the opportunity to attend.

(5) The court officer must arrange for the court to hear such an application no sooner than 2 business days after notice of the application was served, unless—

(a) the court directs that no hearing need be arranged; or

(b) the court gives other directions for the hearing.

(6) The court must not determine an application unless satisfied that sufficient time has been allowed for it.

(7) If the court so directs, the parties to an application may attend a hearing by live link or telephone.

(8) The court must not make, vary or revoke an order unless the applicant states, in writing or orally, that to the best of the applicant’s knowledge and belief—

(a) the application discloses all the information that is material to what the court must decide; and

(b) the content of the application is true.

(9) Where the statement required by paragraph (8) is made orally—

(a) the statement must be on oath or affirmation, unless the court otherwise directs; and

(b) the court must arrange for a record of the making of the statement.

(10) The court may—

(a) shorten or extend (even after it has expired) a time limit under this Section;

(b) dispense with a requirement for service under this Section (even after service was required); and

(c) consider an application made orally instead of in writing.

(11) A person who wants an extension of time must—

(a) apply when serving the application for which it is needed; and

(b) explain the delay.

Application for order

47.68.— (1) An applicant who wants the court to make an overseas production order must—

(a) apply in writing and serve the application on the court officer;

(b) demonstrate that the applicant is entitled to apply;

(c) give the court an estimate of how long the court should allow—

(i) to read the application and prepare for any hearing, and

(ii) for any hearing of the application;

(d) attach a draft order in the terms proposed by the applicant;

(e) serve notice of the application on the respondent and on any other person affected by the order, unless the court otherwise directs;

(f) serve the application on the respondent and on any such other person to such extent, if any, as the court directs.

(2) A notice served on the respondent and on any other person affected by the order must—

(a) specify or describe the electronic data in respect of which the application is made; and

(b) identify—

(i) the power that the applicant invites the court to exercise, and

(ii) the conditions for the exercise of that power which the applicant asks the court to find are met.

(3) The application must—

(a) specify the designated international co-operation arrangement by reference to which the application is made;

(b) identify the respondent;

(c) explain the grounds for believing that the respondent operates in, or is based in, a country or territory outside the United Kingdom which is a party to, or participates in, that designated international co-operation arrangement;

(d) specify or describe the electronic data in respect of which the order is sought;

(e) explain the grounds for believing that the electronic data sought does not consist of or include excepted electronic data;

(f) briefly describe the investigation for the purposes of which the electronic data is sought and explain—

(i) the grounds for believing that an indictable offence has been committed which is under investigation or in respect of which proceedings have begun, or

(ii) how the investigation constitutes a terrorist investigation within the meaning of the Terrorism Act 2000;

(g) explain the grounds for believing that the respondent has possession or control of all or part of the electronic data sought;

(h) explain the grounds for believing that the electronic data sought is likely to be of substantial value to the investigation, or to the proceedings (as the case may be), whether by itself or together with other material;

(i) where paragraph (3)(f)(i) applies, explain the grounds for believing that all or part of the electronic data sought is likely to be relevant evidence in respect of the offence concerned;

(j) explain the grounds for believing that it is in the public interest for the respondent to produce or give access to the electronic data sought, having regard to—

(i) the benefit likely to accrue to the investigation, or to the proceedings (as the case may be), if that data is obtained, and

(ii) the circumstances under which the respondent has possession or control of any of that data;

(k) specify—

(i) the person, or the description of person, to whom the applicant wants the court to order that electronic data must be produced or made accessible, and

(ii) the period by the end of which the applicant wants the court to order that that electronic data must be produced or made accessible (which must be a period of 7 days beginning with the day on which the order is served on the respondent, unless the court otherwise directs); and

(l) where the applicant wants the court to include a non-disclosure requirement in the order—

(i) explain why such a requirement would be appropriate, and

(ii) specify or describe when the applicant wants that requirement, if ordered, to expire.

(4) In the event that an overseas production order is made, the applicant must serve the order on the Secretary of State for service on the respondent.

(5) Where notice of the application was served on a respondent, in the event that the application is dismissed or abandoned the applicant must—

(a) promptly so notify that respondent; and

(b) where the application is dismissed, promptly inform that respondent if the court nonetheless orders that for a period that respondent must not—

(i) conceal, destroy, alter or dispose of any of the electronic data specified or described in the application, or

(ii) disclose the making of the application or its contents to any person.

[Note. See sections 1, 2, 4 and 5 of the Crime (Overseas Production Orders) Act 2019.

Under section 8 of the 2019 Act, an overseas production order may include a non-disclosure requirement obliging the respondent not to disclose the making of the order or its contents to any person except with the court’s permission or with the written permission of the applicant (or an equivalent appropriate officer).

Under section 9 of the Act, an overseas production order may be served only by the Secretary of State.

Under section 12 of the Act, if there are reasonable grounds for believing that the electronic data specified or described in the application consists of or includes journalistic data then unless the judge otherwise directs notice of the application must be served on (a) the person against whom the overseas production order is sought and (b) if different, the person by whom, or on whose behalf, the journalistic data is stored. The criteria for making such a direction correspond with those listed in rule 47.67(3)(b).

Under section 13 of the Act, following service of notice of an application for an overseas production order the respondent must not conceal, destroy, alter or dispose of any of the electronic data specified or described in the application, or disclose the making of the application or its contents to any person, except with the court’s permission or with the written permission of the applicant (or an equivalent appropriate officer). Those obligations are superseded if an order is made. If the application is abandoned or dismissed, those obligations cease unless, in the event of dismissal, the court otherwise orders.

Section 14 of the Act provides for the means of service of notices and orders.

The Practice Direction sets out forms of application, notice and order for use in connection with this rule.]

Application to vary or revoke an order

47.69.— (1) The orders to which this rule applies are—

(a) an overseas production order;

(b) an order under section 8(4) of the Crime (Overseas Production Orders) Act 2019 maintaining an unexpired non-disclosure requirement;

(c) an order under section 13(3) of the 2019 Act maintaining a duty not to conceal, destroy, alter or dispose of electronic data, and not to disclose the making or content of an application for an overseas production order;

(d) an order under section 13(4)(b) of the Act maintaining a duty not to conceal, destroy, alter or dispose of electronic data.

(2) This rule applies where one of the following wants the court to vary, to further vary or to revoke an order listed in paragraph (1)—

(a) the applicant for that order, or an equivalent appropriate officer;

(b) the respondent;

(c) another person affected by the order; or

(d) the Secretary of State.

(3) The applicant for the variation or revocation must—

(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so;

(b) serve the application on—

(i) the court officer, and

(ii) as applicable, the applicant for the order, the respondent, any other person known to be affected and the Secretary of State; and

(c) ask for a hearing, if one is wanted, and explain why it is needed.

(4) Where the applicant wants the court to vary, or further vary, an overseas production order, the application must—

(a) specify or describe the electronic data in respect of which the varied order is sought (which may include electronic data not specified or described in the original order);

(b) satisfy or, as the case may be, continue to satisfy, the requirements of rule 47.68(3)(a) and (c) to (i) (which may be done by reference to the original application); and

(c) meet the requirements of rule 47.68(3)(j).

(5) Where the applicant wants the court to revoke an overseas production order, the application must—

(a) explain why revocation is appropriate;

(b) if the applicant wants the court, despite revocation, to maintain the requirement that for a period the respondent must not conceal, destroy, alter or dispose of any of the electronic data specified or described in the order—

(i) explain why it would be appropriate to maintain that requirement, and

(ii) specify or describe when the applicant wants that requirement, if maintained, to expire; and

(c) if the order includes an unexpired non-disclosure requirement that the applicant wants the court, despite revocation, to maintain—

(i) explain why it would be appropriate to maintain that requirement, and

(ii) specify or describe when the applicant wants that requirement, if maintained, to expire.

(6) Where the applicant wants the court to vary, to further vary or to revoke an order under section 8(4), section 13(3) or section 13(4)(b) of the 2019 Act the application must—

(a) explain—

(i) what material circumstances have changed since the order was made, and

(ii) why the order should be varied or revoked, as the case may be, as a result; and

(b) if applicable, specify the variation proposed.

[Note. See sections 7, 11(1) and 18(2) of the Crime (Overseas Production Orders) Act 2019.

Under section 8(4) of the 2019 Act, where the court revokes an overseas production order which includes an unexpired non-disclosure requirement the court may order that the respondent is to remain subject to that requirement for a defined period.

Under section 13(3) of the Act, where the court dismisses an application for an overseas production order then the duty under section 13(1)(a) not to conceal, destroy, alter or dispose of any of the electronic data specified or described in the application, and under section 13(1)(b) not to disclose the making of the application or its contents to any person except with the court’s permission or with the written permission of the applicant (or an equivalent appropriate officer), ceases to apply unless the court orders that a person served with notice of the application is to remain subject to that duty for a defined period.

Under section 13(4)(b) of the Act, where the court revokes an overseas production order before it is served then the duty under section 13(1)(a) not to conceal, destroy, alter or dispose of any of the electronic data specified or described in the application for the order ceases to apply unless the court orders that a person served with notice of the application is to remain subject to that duty for a defined period.]

Application containing information withheld from a respondent or other person

47.70.— (1) This rule applies where an application under rule 47.68 or 47.69 includes information that the applicant thinks ought to be revealed only to the court.

(2) The application must—

(a) identify that information; and

(b) explain why that information ought not to be served on the respondent or another person.

(3) At a hearing of an application to which this rule applies—

(a) the general rule is that the court must consider, in the following sequence—

(i) representations first by the applicant and then by the respondent and any other person, in the presence of them all, and then

(ii) further representations by the applicant, in the others’ absence; but

(b) the court may direct other arrangements for the hearing.

Application to punish for contempt of court

47.71.— (1) This rule applies where a person is accused of disobeying an order made by the court under the Crime (Overseas Production Orders) Act 2019.

(2) An applicant who wants the court to exercise its power to punish that person for contempt of court must comply with the rules in Part 48 (Contempt of court).

[Note. The Crown Court has power to punish for contempt of court a person who disobeys its order: see section 45 of the Senior Courts Act 1981(2). Under section 11(4) of the Crime (Overseas Production Orders) Act 2019, an order made by a judge under the Act has effect as if it were an order of the Crown Court.]”; and

(c) amend the table of contents correspondingly.

(1)

2019 c. 5; the Act comes into force on a date to be appointed.

(2)

1981 c. 54. The Act’s title was amended by section 59(5) of, and paragraph 1 of Schedule 11 to, the Constitutional Reform Act 2005 (c. 4).