Crime (Overseas Production Orders) Bill (HL Bill 113)

A

BILL

TO

Make provision about overseas production orders.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Overseas production orders

1 Making of overseas production order on application

(1) A judge may, on an application by an appropriate officer, make an overseas
production order against a person in respect of electronic data if each of the
5requirements for the making of the order is fulfilled (see section 4).

(2) An application for an overseas production order must—

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

(b) specify or describe the electronic data in respect of which the order is
10sought.

(3) An appropriate officer applying for an overseas production order must not
specify or describe in the application for the order electronic data that the
appropriate officer has reasonable grounds for believing consists of or includes
excepted electronic data.

(4) 15An overseas production order is an order made under this Act that either—

(a) requires the person against whom the order is made to produce the
electronic data specified or described in the order, or

(b) requires the person against whom the order is made to give access to
the electronic data specified or described in the order.

(5) 20In this Act—

  • “designated international co-operation arrangement” means an
    international co-operation arrangement which is designated by the
    Secretary of State by regulations;

  • “international co-operation arrangement” means an international
    25agreement, instrument or other arrangement which relates to the

Crime (Overseas Production Orders) BillPage 2

  • provision of mutual assistance in connection with the investigation or
    prosecution of offences and to which the United Kingdom is a party or
    in which the United Kingdom participates.

    (6) In this Act—

    • 5“appropriate officer” has the meaning given by section 2;

    • “electronic data” and “excepted electronic data” have the meanings given
      by section 3;

    • “judge” means—

      (a)

      in relation to England and Wales, a judge entitled to exercise the
      10jurisdiction of the Crown Court;

      (b)

      in relation to Scotland, a judge of the High Court of Justiciary or
      the sheriff;

      (c)

      in relation to Northern Ireland, a Crown Court judge.

    2 Appropriate officers

    (1) 15In this Act “appropriate officer” means—

    (a) in relation to England and Wales and Northern Ireland—

    (i) a constable,

    (ii) an officer of Revenue and Customs,

    (iii) a member of the Serious Fraud Office,

    (iv) 20an accredited financial investigator,

    (v) a counter-terrorism financial investigator,

    (vi) a person appointed by the Financial Conduct Authority under
    section 168(3) or (5) of the Financial Services and Markets Act
    2000 to conduct an investigation, or

    (vii) 25a person of a description specified in regulations made by the
    Secretary of State;

    (b) in relation to Scotland—

    (i) a procurator fiscal,

    (ii) a constable,

    (iii) 30an officer of Revenue and Customs,

    (iv) a person appointed by the Financial Conduct Authority under
    section 168(3) or (5) of the Financial Services and Markets Act
    2000 to conduct an investigation, or

    (v) a person of a description specified in regulations made by the
    35Secretary of State.

    (2) An accredited financial investigator may exercise a function conferred by a
    provision of this Act only if exercising the function for the purposes of a
    confiscation investigation or a money laundering investigation within the
    meaning of Part 8 of the Proceeds of Crime Act 2002 (see section 341 of that
    40Act).

    (3) A counter-terrorism financial investigator other than a Schedule 5A counter-
    terrorism financial investigator may exercise a function conferred by a
    provision of this Act only if exercising the function for the purposes of a
    terrorist investigation so far as relating to terrorist property.

    (4) 45A Schedule 5A counter-terrorism financial investigator may exercise a function
    conferred by a provision of this Act only if exercising the function for the
    purposes of a terrorist financing investigation.

    Crime (Overseas Production Orders) BillPage 3

    (5) A person mentioned in any of sub-paragraphs (ii) to (v) of subsection (1)(b)
    may exercise a function conferred by a provision of this Act only if authorised
    to do so by a procurator fiscal.

    (6) A certificate of a procurator fiscal that a person mentioned in any of sub-
    5paragraphs (ii) to (v) of subsection (1)(b) had authority to exercise a function
    conferred by a provision of this Act is conclusive evidence of that fact.

    (7) If regulations under subsection (1)(a)(vii) describe a person by reference to the
    person being authorised by another person, the regulations may include
    provision which has a similar effect to the provision made by subsection (6).

    (8) 10In this section—

    • “accredited financial investigator” has the same meaning as in the
      Proceeds of Crime Act 2002 (see section 3 of that Act);

    • “counter-terrorism financial investigator” means a person who is
      accredited—

      (a)

      15by virtue of section 63F(4)(a) of the Terrorism Act 2000 in
      relation to that Act, or

      (b)

      by virtue of section 63F(4)(c) of the Terrorism Act 2000 in
      relation to Schedule 5 or 5A to that Act;

    • “Schedule 5A counter-terrorism financial investigator” means a person
      20who is accredited by virtue of section 63F(4)(c) of the Terrorism Act
      2000 in relation to Schedule 5A to that Act and not in relation to
      Schedule 5 to that Act;

    • “terrorist financing investigation” has the same meaning as in Part 1 of
      Schedule 5A to the Terrorism Act 2000 (see paragraph 4 of that
      25Schedule);

    • “terrorist investigation” has the same meaning as in the Terrorism Act
      2000 (see section 32 of that Act);

    • “terrorist property” has the same meaning as in the Terrorism Act 2000
      (see section 14 of that Act).

    3 30Meaning of “electronic data” and “excepted electronic data”

    (1) This section applies for the purposes of this Act.

    (2) “Electronic data” means data stored electronically.

    (3) “Excepted electronic data” means electronic data that is—

    (a) an item subject to legal privilege, or

    (b) 35a personal record which is a confidential personal record.

    (4) Where the person against whom an overseas production order is sought is a
    telecommunications operator, this Act applies as if references to excepted
    electronic data included electronic data that is communications data.

    (5) Where an application for an overseas production order is made for the
    40purposes of a terrorist investigation other than a terrorist financing
    investigation, this Act applies as if references to excepted electronic data did
    not include electronic data that is a personal record which is a confidential
    personal record.

    (6) “Item subject to legal privilege”—

    (a) 45in relation to England and Wales, has the same meaning as in the Police
    and Criminal Evidence Act 1984 (see section 10 of that Act);

    Crime (Overseas Production Orders) BillPage 4

    (b) in relation to Scotland, has the same meaning as in Chapter 3 of Part 8
    of the Proceeds of Crime Act 2002 (see section 412 of that Act);

    (c) in relation to Northern Ireland, has the same meaning as in the Police
    and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341
    5(N.I. 12)) (see Article 12 of that Order).

    (7) “Personal record” means a record concerning an individual (“P”) (whether
    living or dead) who can be identified from the record and relating to—

    (a) P’s physical or mental health,

    (b) spiritual counselling or assistance given, or to be given, to P, or

    (c) 10counselling or assistance given, or to be given, to P for the purposes of
    P’s personal welfare by—

    (i) any voluntary organisation,

    (ii) any individual who by reason of an office or occupation has
    responsibilities for P’s personal welfare, or

    (iii) 15any individual who by reason of an order of a court has
    responsibilities for P’s supervision.

    (8) A personal record is a “confidential personal record” if—

    (a) it was created in circumstances giving rise to an obligation of
    confidence owed to P and the obligation continues to be owed, or

    (b) 20it is held subject to a restriction on disclosure, or an obligation of
    secrecy, contained in an enactment (whenever passed or made).

    (9) In this section—

    • “communications data” and “telecommunications operator” have the
      same meaning as in the Investigatory Powers Act 2016 (see section 261
      25of that Act);

    • “terrorist financing investigation” has the same meaning as in Part 1 of
      Schedule 5A to the Terrorism Act 2000 (see paragraph 4 of that
      Schedule);

    • “terrorist investigation” has the same meaning as in the Terrorism Act
      302000 (see section 32 of that Act).

    4 Requirements for making of order

    (1) The requirements for the making of an overseas production order are—

    (a) the requirements set out in subsections (2) to (6), and

    (b) such additional requirements as are specified in regulations made by
    35the Secretary of State (so far as applicable).

    (2) The judge must be satisfied that there are reasonable grounds for believing that
    the person against whom the order is sought—

    (a) operates in a country or territory outside the United Kingdom which is
    a party to, or participates in, the designated international co-operation
    40arrangement specified in the application for the order, or

    (b) is based in a country or territory outside the United Kingdom which is
    a party to, or participates in, the designated international co-operation
    arrangement specified in the application for the order.

    (3) The judge must be satisfied that—

    (a) 45there are reasonable grounds for believing that an indictable offence
    has been committed and proceedings in respect of the offence have
    been instituted or the offence is being investigated, or

    Crime (Overseas Production Orders) BillPage 5

    (b) the order is sought for the purposes of a terrorist investigation.

    (4) The judge must be satisfied that there are reasonable grounds for believing that
    the person against whom the order is sought has possession or control of all or
    part of the electronic data specified or described in the application for the
    5order.

    (5) The judge must be satisfied that there are reasonable grounds for believing that
    all or part of the electronic data specified or described in the application for the
    order is likely to be of substantial value (whether or not by itself) to the
    proceedings or investigation mentioned in subsection (3)(a) or, as the case may
    10be, to a terrorist investigation.

    (6) 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 for the order to be produced or, as the case may be,
    accessed having regard to—

    (a) 15the benefit likely to accrue, if the data is obtained, to the proceedings or
    investigation mentioned in subsection (3)(a) or, as the case may be, to a
    terrorist investigation, and

    (b) the circumstances under which the person against whom the order is
    sought has possession or control of any of the data.

    (7) 20For the purpose of subsection (2)

    (a) a person operates in a country or territory outside the United Kingdom
    if the person creates, processes, communicates or stores data by
    electronic means in that country or territory (whether or not the person
    also creates, processes, communicates or stores data by electronic
    25means in the United Kingdom);

    (b) a person is based in a country or territory outside the United
    Kingdom—

    (i) in the case of an individual, if the individual’s habitual place of
    residence is in that country or territory;

    (ii) 30in the case of a body corporate, if the body is incorporated in, or
    has its principal place of business in, that country or territory;

    (iii) in any other case, if the person’s principal place of business is in,
    or the person’s activities are principally conducted in, that
    country or territory.

    (8) 35For the purpose of subsection (3)(a)

    (a) an offence under the law of Scotland is an indictable offence if it may be
    tried on indictment in Scotland;

    (b) an offence under the law of Northern Ireland is an indictable offence if
    it is an offence which, if committed by an adult, is triable on indictment
    40in Northern Ireland (whether or not it is also triable by a court of
    summary jurisdiction).

    (As regards an offence under the law of England and Wales, see Schedule 1 to
    the Interpretation Act 1978.)

    (9) An offence under the law of Northern Ireland which would be triable only by
    45a court of summary jurisdiction but for Article 29 of the Magistrates’ Courts
    (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)), or any other statutory
    provision which requires the offence to be tried on indictment at the instance
    of the accused or the prosecution, is not an indictable offence for the purpose
    of subsection (3)(a).

    Crime (Overseas Production Orders) BillPage 6

    (10) In this section, “terrorist investigation” has the same meaning as in the
    Terrorism Act 2000 (see section 32 of that Act).

    5 Contents of order

    (1) The electronic data specified or described in an overseas production order may
    5be all or part of the electronic data specified or described in the application for
    the order (subject to subsections (2) and (3)).

    (2) The judge must not specify or describe in the order electronic data that the
    judge has reasonable grounds for believing consists of or includes excepted
    electronic data.

    (3) 10If the requirement in section 4(5) or (6) is fulfilled by reference to part only of
    the electronic data specified or described in the application for the order, the
    judge must not specify or describe in the order electronic data by reference to
    which the requirement is not fulfilled.

    (4) An overseas production order must specify—

    (a) 15the person, or the description of person, to whom the electronic data
    specified or described in the order must be produced or, as the case
    may be, to whom access to the electronic data specified or described in
    the order must be given, and

    (b) the period by the end of which the electronic data specified or described
    20in the order must be produced or, as the case may be, access to the
    electronic data specified or described in the order must be given.

    (5) The period specified by virtue of subsection (4)(b) must be a period of seven
    days beginning with the day on which the order is served, unless it appears to
    the judge that a longer or shorter period would be appropriate in the particular
    25circumstances.

    6 Effect of order

    (1) A requirement in an overseas production order to produce the electronic data
    specified or described in the order is a requirement to produce the electronic
    data in a form—

    (a) 30in which it can be taken away, and

    (b) in which it is visible and legible or from which it can readily be
    produced in a visible and legible form.

    (2) A requirement in an overseas production order to give access to the electronic
    data specified or described in the order is a requirement—

    (a) 35to give access to the electronic data in a form in which it is visible and
    legible, and

    (b) if so required by the specified person or, as the case may be, by a person
    of the specified description, to produce the electronic data in a form—

    (i) in which it can be taken away, and

    (ii) 40in which it is visible and legible or from which it can readily be
    produced in a visible and legible form.

    (3) In subsection (2)(b), “specified” means specified in the overseas production
    order by virtue of section 5(4)(a).

    Crime (Overseas Production Orders) BillPage 7

    (4) The requirement to produce or, as the case may be, give access to electronic
    data imposed by an overseas production order on the person against whom it
    is made—

    (a) applies regardless of where the electronic data is stored,

    (b) 5does not require the person to produce or, as the case may be, give
    access to any electronic data that is excepted electronic data, and

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

    7 Variation or revocation of order

    (1) 10A judge may, on an application by a person mentioned in subsection (2)

    (a) vary an overseas production order;

    (b) revoke an overseas production order.

    (2) The persons who may apply are—

    (a) the appropriate officer who applied for the order or an equivalent
    15appropriate officer,

    (b) any person affected by the order,

    (c) in relation to England and Wales and Northern Ireland, the Secretary of
    State, and

    (d) in relation to Scotland, the Lord Advocate or (if not otherwise able to
    20apply by virtue of paragraph (a)) a procurator fiscal.

    (3) An application for the variation of an overseas production order must—

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

    (b) specify or describe the electronic data in respect of which the varied
    25order is sought (which may include electronic data not specified or
    described in the original order).

    (4) A person applying for the variation of an overseas production order must not
    specify or describe in the application for the variation of the order electronic
    data that the person has reasonable grounds for believing consists of or
    30includes excepted electronic data.

    (5) A judge may vary an overseas production order only if—

    (a) the requirements in section 4(2) and (3) continue to be fulfilled,

    (b) the requirements in section 4(4) to (6) are fulfilled in relation to the
    electronic data specified or described in the application for the
    35variation of the order, and

    (c) such additional requirements specified in regulations under section
    4(1)(b) as are applicable—

    (i) continue to be fulfilled, or

    (ii) where they relate to electronic data specified or described in an
    40application for an order, are fulfilled in relation to the electronic
    data specified or described in the application for the variation of
    the order.

    (6) Unless the context otherwise requires, references in this Act to an overseas
    production order include one that is varied under this section and accordingly,
    45in the application of this Act in relation to the variation of an overseas
    production order—

    Crime (Overseas Production Orders) BillPage 8

    (a) references (however expressed) to an application for an overseas
    production order are to be read as references to the application for the
    variation of the order;

    (b) references (however expressed) to the person against whom an
    5overseas production order is sought are to be read as references to the
    person against whom the order was made;

    (c) references (however expressed) to the making of an overseas
    production order are to be read as references to the variation of the
    order.

    (7) 10For the purpose of subsection (2)(a), an appropriate officer is an equivalent
    appropriate officer in relation to an application for the variation or revocation
    of an overseas production order if—

    (a) the appropriate officer falls within the same sub-paragraph of section
    2(1)(a) or (b) as the appropriate officer who applied for the order, and

    (b) 15where that sub-paragraph is sub-paragraph (vii) of section 2(1)(a) or
    sub-paragraph (v) of section 2(1)(b), the appropriate officer is of the
    same description as the appropriate officer who applied for the order.

    8 Inclusion of non-disclosure requirement in order

    (1) A judge making an overseas production order may include a non-disclosure
    20requirement in the order.

    (2) A non-disclosure requirement is a requirement imposed on the person against
    whom the order is made not to disclose the making of the order or its contents
    to any person except—

    (a) with the leave of a judge, or

    (b) 25with the written permission of the appropriate officer who applied for
    the order or an equivalent appropriate officer.

    (3) An overseas production order that includes a non-disclosure requirement
    must specify or describe when the requirement is to expire.

    (4) A judge revoking an overseas production order that includes an unexpired
    30non-disclosure requirement may order that the person against whom the
    overseas production order was made is to remain subject to the non-disclosure
    requirement.

    (5) An order under subsection (4) may specify or describe a different time when
    the non-disclosure requirement is to expire than that specified or described in
    35the overseas production order that is being revoked.

    (6) For the purpose of subsection (2)(b), an appropriate officer is an equivalent
    appropriate officer in relation to an overseas production order if—

    (a) the appropriate officer falls within the same sub-paragraph of section
    2(1)(a) or (b) as the appropriate officer who applied for the order, and

    (b) 40where that sub-paragraph is sub-paragraph (vii) of section 2(1)(a) or
    sub-paragraph (v) of section 2(1)(b), the appropriate officer is of the
    same description as the appropriate officer who applied for the order.

    Crime (Overseas Production Orders) BillPage 9

    Supplementary

    9 Restrictions on service of order

    (1) An overseas production order that is not served within the period of 3 months
    beginning with the day on which the order is made is to be treated as if it had
    5been quashed immediately after the end of that period.

    (2) An overseas production order made in England and Wales or Northern Ireland
    may be served only by the Secretary of State.

    (3) An overseas production order made in Scotland may be served only by the
    Lord Advocate.

    (4) 10The Secretary of State or, as the case may be, the Lord Advocate may serve an
    overseas production order only if the Secretary of State or the Lord Advocate
    considers that to do so would be in accordance with a designated international
    co-operation arrangement.

    10 Retention of electronic data and use as evidence

    (1) 15Electronic data produced in compliance with an overseas production order
    may be retained for so long as is necessary in all the circumstances.

    This includes retaining it so that it may be used as evidence in proceedings in
    respect of an offence.

    (2) In section 117 of the Criminal Justice Act 2003 (evidence: business and other
    20documents), in subsection (4)(b)—

    (a) omit the “or” at the end of sub-paragraph (ii);

    (b) at the end of sub-paragraph (iii) insert or

    (iv) an overseas production order under the Crime
    (Overseas Production Orders) Act 2018,”.

    (3) 25In Article 21 of the Criminal Justice (Evidence) (Northern Ireland) Order 2004
    (S.I. 2004/1501 (N.I. 10)) (principal categories of admissibility: business and
    other documents), in paragraph (4)(b)—

    (a) omit the “or” at the end of paragraph (ii);

    (b) at the end of paragraph (iii) insert or

    (iv) 30an overseas production order under the Crime
    (Overseas Production Orders) Act 2018,”.

    (4) In Scotland, electronic data produced in compliance with an overseas
    production order may be received in evidence without being sworn to by
    witnesses, so far as that may be done without unfairness to either party.

    11 35Procedural matters

    (1) Rules of court may make provision as to the practice and procedure to be
    followed in connection with proceedings relating to an overseas production
    order.

    (2) The power to make rules of court under subsection (1) does not prejudice any
    40existing power to make rules.

    (3) Subsection (1) does not authorise the making of provision that is inconsistent
    with the provision made by section 12.