A Guide to Production Orders and How to Challenge One
What is a Production Order?
A production order (‘PO’) is an order that requires the custodian of documents to make or deliver the documents to law enforcement officials in a specific time period.
Production orders can be obtained by the National Crime Agency (NCA), His Majesty’s Revenue and Customs (HMRC), the Serious Fraud Office (SFO), the Police and any other authorities that are classed as ‘appropriate officers’. A judge may, on an application made to them by an appropriate officer, make a production order if they feel satisfied that each of the legislative requirements are fulfilled.
Understand the Investigative Process
Account freezing orders are one of many methods used as part of the investigative process. If you are the subject of an investigation for alleged offence(s), it means that you are the focus of an information-gathering exercise to determine whether there is sufficient evidence to support an allegation.
This means that there is an ongoing investigation taking place. Any senior enforcement officer is able to apply to a Magistrates Court for an account freezing order, if they have reasonable grounds to suspect that the funds in that account have been obtained by unlawful conduct or are intended to be used for criminal activity.
The Proceeds of Crime Act 2002 (as amended by the Criminal Finance Act 2017) allows for bank and building society accounts to be frozen for up to two years, while an investigation takes place and the minimum balance in the account is £1,000. While accounts can be frozen for a set period of time, there is no guarantee that your funds will be returned, once this period is over.
Why are Production Orders Obtained?
Production orders are obtained for many different reasons depending on the individual details of the case, but they are most commonly obtained by the police at a without notice hearing from a Crown Court Judge. This usually happens due to the investigation being on-going and the police not wanting to release details to the suspect(s). POs are also often required in these circumstances as the police are unlikely to be able to secure the evidence voluntarily from certain organisations.
What is Included in a Production Order Application?
The application for a PO should state that the person specified in the application is subject to:
- A civil recovery investigation
- An exploitation proceeds investigation
- A money laundering investigation
- A confiscation investigation
Alternatively, the application must state that property specified in the application is subject to:
- A detained cash investigation
- A civil recovery investigation
- A detained property investigation
- A frozen funds investigation
The application also needs to state that:
- The order is required for the purposes of the investigation
- The order is required in relation to materials or material of a description, specified in the application
- A person specified in the application appears to be in control or possession of the required materials
How to Respond to Production Orders
If you have been served a production order, this means you are required to provide material to an appropriate authority.
Legally, if you possess the requested materials, then you must provide these in order to avoid any punishment. Failure to comply with a production order under both POCA and PACE can be deemed a contempt of court for which an individual may be imprisoned or fined.
Typically, you will be required to provide the relevant materials within seven days from when you were served the PO. However, it is sometimes possible to secure an extension from the authority that has obtained the order if you feel you need further time.
This makes it incredibly important that you seek legal support immediately as there are often cases where certain personal information should not be disclosed unless absolutely necessary, therefore you need to fully understand your rights and options regarding challenging the order or applying to vary or discharge the order.
How Production Orders Obtained
The way in which a PO is obtained varies according to the type of application being made. Applications are typically made ‘without notice’ which means that scrutiny is limited to the judge considering the application in the first instance.
Why Challenge a Production Order?
Challenging the legality of a production order is similar to the challenge brought in relation to a search warrant. In addition, it still affords the applicant an opportunity to keep the seized material, subject to a successful application pursuant to S59 Criminal Justice and Police Act 2001. The S59 facility is not available to the applicant if the legality of a PO is successfully challenged. In some cases, quashing a PO can lead to the closure of the investigation.
A PO can amount to a substantial invasion of privacy. There may be commercial or personal reasons why disclosure of material should be avoided unless it is absolutely necessary.
The applicant owes a duty of candour to the court, especially since most applications are made ex parte (without the subject’s knowledge) and the court therefore needs a balanced view of the circumstances in order to determine whether a production order is truly necessary. Challenging an order and asking for disclosure of the information upon which the applicant relied can reveal whether the applicant properly discharged the duty of candour. It provides the subject with a better understanding of why they are under suspicion. This can offer the subject the opportunity to answer allegations or correct the applicant’s assumptions.
In short, applicants normally try to reveal as little as possible about their investigation and challenging a production order is a means by which a subject may better understand what is being said about them.
How to Challenge Production Orders
If you have been served a production order but believe it is unjust and want to challenge it, it’s crucial that you seek expert legal advice as soon as possible. This is because your challenge must be served before the deadline expires, which is typically within seven days. You will need to make your application to the court that granted the production order.
What to Do if a Production Order Has Been Granted
When the investigating authorities seek to search the premises of any individual or company, the courts have full control over the invasion of privacy involved. If a production order has been granted, this can consist of having personal and private information released such as bank statements, which can be extremely distressing for the individual that is being investigated.
If you have been personally affected by a production order, an application to vary or discharge the order can be made. The grounds for applying for the discharge could be that the investigator has failed to meet their duty of candour when applying to the courts for invasive orders. If this is the case, an application to vary or discharge the order will need to be made to the Crown Court judge or an application for Judicial Review must be completed.
It is important that in this situation, you act promptly as there is a three month time limit for this process, however our team of Business Crime and Serious Crime Solicitors are highly experienced and able to guide you through this.
Need Expert Advice Regarding Production Orders?
Get in touch with our specialist team of business crime solicitors today for further information about how we can support you if you have been served a production order.