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Production Order Legal Privilege

487.019 (1) An order made under sections 487.013 to 487.018 [production order provisions] may contain such conditions as the Minister considers appropriate, including, in the case of an order made under section 487.014 [General Production Orders], conditions for protecting privileged communication between a person qualified to provide legal advice and his or her client. [omitted (2) and (3)] 2014, c. 31, p. 20; 2019, c. 25, p. 193. A production order generally requires a person to grant or surrender access to documents in their possession that are relevant to an investigation of their legal and financial affairs. A production order can be enforced by the police, HMRC, the National Crime Agency (NCA) or the SFO Serious Fraud Office (SFO). Applications for production orders are generally made without notice or notice to the owner of the material (ex parte), so that consideration of the information provided is usually left to judges and investigators at a higher level. If you are being investigated for money laundering crimes, a production order may be issued to you or your business to obtain bank statements and other correspondence that must be investigated as part of the investigation. The order requires you to give the documents contained in the order to the authorities who request them.

The authorities may request permission to enter premises such as a business office in order to obtain the desired equipment. A production order may also be sought in connection with investigative activities related to exploitation, imprisoned property or funds, frozen funds, civil recovery and forfeiture. In R (at Bowles` request) v. Southwark Crown Court (pre-POCA case), it was held that there was no power to obtain production orders under the former Proceeds of Crime Act 2002 (POCA 2002) to promote the investigation of a criminal offence, including a money laundering offence; They could only be used in confiscation investigations. It was considered whether the “genuine and predominant” purpose of the request was to obtain evidence in support of confiscation investigations; If this is not the case, an order under the Police and Criminal Evidence Act 1984 should be sought instead (see Practice Note: Obtaining and Executing a Search Warrant under PACE 1984). The purpose of a production order is to obtain documents related to a known person or business, such as bank statements and correspondence. The order requires the designated person to either hand over the material contained in the order to an official or to grant the designated person official official access to the material. It may be served on a person or institution and may be extended to the granting of access to the premises in order to have access to the material. A production order is available for all forms of “investigation,” including forfeiture, civil forfeiture, money laundering, resolution of exploitation, cash held, property held, and investigations of frozen funds. A production order cannot require the production of material or provide access to material that is legally privileged or excluded. Section 348(2) defines privileged material as any document which the person could refuse to produce on the basis of solicitor-client privilege in proceedings before the High Court. Apparently, to save time, police forces use a DP2 form as a “request to an external organization to share personal data with the police”.

This is a formal request for disclosure that gives the recipient assurance that the provision of the material complies with the Data Protection Act 2018 (DPA) and the General Data Protection Regulation (GDPR). However, this is a request and there is no obligation to require the recipient to provide the requested material. Equipment is not subject to solicitor-client privilege simply because it is held by a lawyer. In R v Central Criminal Court ex parte Francis and Francis [1988] 3 All ER 775, the House of Lords held that documents are not covered by solicitor-client privilege if they are retained with intent to pursue a criminal purpose. Clarke Kiernan, Business Crime Solicitors, All types of production orders on pages 487.014 to 487.017 apply nationally. 4. The judge may revoke or vary the order if he or she is satisfied that production orders are an essential tool in the fight against crime. They oblige the holder of documents to hand them over to the police, HM Revenue and Customs (HMRC), the National Crime Agency (NCA), the Serious Fraud Office (SFO) or another authority, under penalty of sanction. In most cases, purchase orders are obtained by the police at an unannounced hearing by a Crown Court judge. This is usually because the investigation is still ongoing and the police do not want to deter suspects.

Purchase orders are necessary because the police will not be able to voluntarily obtain evidence from banks and other organizations (mainly lawyers, financial institutions or accountants) that have a professional obligation not to disclose client documents without a court order. But there will also be large companies that, while they may not have a professional obligation to withhold equipment, will feel very uncomfortable simply handing over files to the police. This section deals with the power to issue production orders from two legislative sources: (i) section 345 of the Proceeds of Crime Act 2002 (POCA) and (ii) Schedule 1 of the Police and Criminal Evidence Act 1984 (PACE). A POCA production order is used for money laundering investigations as well as forfeiture investigations and civil collection investigations. A production order is used in other criminal investigations to ensure access to “special processing material,” that is, material created or obtained in the course of a transaction and normally kept confidential. However, POCA or PACE production orders cannot contain provisions relating to documents subject to solicitor-client privilege. (3) On the unilateral application of a commissioner or peace officer, the judge who made the order, or a judge in the judicial district where the order was made, may, on the basis of an affidavit in Form 5.0081 [forms], revoke or vary the order. The commissioner or peace officer must notify the person against whom the order is made of the revocation or change as soon as possible.

2014, c. 31, p. 20; 2019, c. 25, p. 193. [Note(s) added] The investigative powers under Part 8 of the Proceeds of Crime Act, 2002 (POCA) for the purposes of a forfeiture order for offences include production orders, search and seizure orders, customer information orders, account monitoring orders and disclosure orders. In addition, financial institutions report suspicious activity to the Serious Organized Crime Agency (SOCA), which in turn forwards it to financial investigators for investigation. These are a fruitful source of information that can ultimately lead to successful prosecutions with a confiscation order.

That is what the CPS says. Most applications for production orders are made without the knowledge of the person concerned (ex parte), so the obligation to disclose the information relied on by the authorities to seek the order may help clarify the legality of the request. It may also give the subject matter of the production order an opportunity to clarify assumptions or allegations against it. Section 487.0193(4)(b) allows a judge to revoke or vary an order if the order is to disclose information that is “protected by law or protected from disclosure.” [2] These allow financial investigators to obtain information about the financial affairs of a person who is the subject of a confiscation, money laundering or civil collection investigation, usually in relation to their bank accounts.