Production Orders and what you should do if you receive one

In this article we look at what steps should be taken if you receive a Production Order.

What is a Production Order?

A Production Order typically requires a business or a person to provide access to material in their possession that is useful to an investigation. A Production Order can be enforced by the police, HMRC, the National Crime Agency (NCA), or SFO Serious Fraud Office (SFO).

A Production Order issued under section 345 of the Proceeds of Crime Act 2002 is usually required for investigations linked to money laundering, along with asset freezing and confiscation. A Production Order made under Schedule 1 of the Police and Criminal Evidence Act 1984 is used in criminal investigations to ensure access to materials that are required in the relevant cases (for evidence or otherwise).

Why have you received a Production Order?

If you or your customer/ supply chain 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 a prosecution.

What is included in a Production Order?

An application for a Production Order must state that:

• A person specified in the application is subject to a confiscation investigation, a civil recovery investigation, an exploitation proceeds investigation or a money laundering investigation.
• Property specified in the application is subject to a civil recovery investigation, a detained cash investigation, a detained property investigation or a frozen funds investigation.
• The order is sought for the purposes of the investigation.
• The order is sought in relation to material (or material of a description) specified in the application.
• A person specified in the application appears to be in possession or control of the material.

How should I respond to a Production Order?

If you have been served with a Production Order, this means you are required to provide material to an appropriate authority.

Most Production Orders require the material to be provided within one week, although an extension can sometimes be granted if this is approved by the authority seeking the Order. If the material is not legally privileged and it is within your possession, you are required to provide it (usually a digital copy is preferred).

If you fail to comply with a Production Order, you may be held to be in contempt of court, which can result in a fine, imprisonment or sequestration of assets.

If you have been served a Production Order and want to challenge it, this challenge must be made before the seven-day deadline expires. Our experienced team here at Gateley can help and advise on the options available to challenge a Production Order, vary it or vary the compliance deadline.

Can I challenge a Production Order?

A person specified in the order may apply to the Court to have the order varied or discharged if it relates to a confiscation or money laundering investigation, but not if it relates to a civil recovery investigation or exploitation investigation. However, if the Production Order is served on you in relation to your client, you do need to consider your professional obligations and whether the order is lawful.

Challenging a Production Order can be done by applying to keep the materials, via an application pursuant to Section 59 of the Criminal Justice and Police Act 2001. Quashing a Production Order can lead to a case closure, if successful. It can also be argued that a Production Order amounts to an invasion of privacy, with commercial or personal reasons given.

What happens after a Production Order?

Material produced in compliance with a Production Order may be retained for so long as it is necessary to retain it in connection with the investigation for the purposes of which the order was made. If an officer has reasonable grounds for believing that the material may need to be produced for the purposes of legal proceedings and may become unavailable for these purposes it may be retained until the proceedings are concluded.

If the investigation has concluded or legal proceedings are not anticipated then any documents handed over in compliance with a Production Order should be returned and it may be possible to ask for all digital copies to be destroyed.

Should I seek legal advice?

It is always advisable to take legal advice as soon as you are served with a Production Order in order to properly understand your rights and to engage directly with the regulator to manage the process sensibly. Our specialist team here at Gateley can help with this and are able to speak to the regulator on your behalf as well as refer your case to Court quickly if the order needs to be challenged.