Proceeds of Crime Act 2002 powers to execute warrant and orders: revised code of practice consultation

Chapter 3 - Production Orders

General description

27. A production order^[15] is an order made by the sheriff on application by the appropriate person^[16] for the production of, or allowing access to material which is specified in the application for the order as being sought, and where the requirements at section 381 of POCA/ are fulfilled, for the purposes of:

• a confiscation investigation;
• a civil recovery investigation;
• a detained cash investigation;
• a detained property investigation;
• a frozen funds investigation;
• a cryptoasset investigation; or,
• a money laundering investigation.

28. It requires the person specified in the application for the order (as being the person who appears to be in possession or control of the material) either –

a) to produce the material to a proper person for the proper person to take it away; or

b) to give a proper person access to it,

within the period of time stated in the order (usually 7 days).^[17]

29. A production order may be sought against any legal person, which includes bodies corporate and authorized government departments. An authorized government department is a government department which is an authorized department for the purposes of the Crown Proceedings Act 1947^[18] and the Scottish Administration^[19].

30. The material specified in an application may consist of documents, information held on a computer or other electronic device, a computer or other equipment (rather than simply the information held on them), or other non-documentary items.

31. There must also be reasonable grounds for believing that the material is likely to be of substantial value (whether or not by itself) to the investigation for which the order is sought, and that it is in the public interest for the material to be produced, or for access to it being given, having regard to –

(a) the benefit likely to accrue to the investigation if the material is obtained;

and,

(b) the circumstances under which the person the application specifies as appearing to be in possession or control of the material holds it.

32. There must also be demonstrated reasonable grounds that the person specified in the application as being in possession of the relevant material or property is, in actual fact, in possession or control of it.

Serving the Order

33. When serving a production order, a covering letter should be provided that includes the following information (unless it is already included in the order, search warrant or the notice):

• the name of the person specified in the application for the production order, or the name by which they are known;
• a statement to the effect that disclosure of information about the investigation or falsifying, concealing, destroying or otherwise disposing of, or causing or permitting the falsification, concealment, destruction or disposal of documents which are relevant to the investigation may be an offence under section 342 (offences of prejudicing investigation) punishable by up to five years’ imprisonment, a fine or both;
• that the individual may wish to seek independent legal advice; and,
• the individual’s right to make an application to the sheriff to discharge or vary the production order or the order to grant entry.

34. A production order should be served on the person named in the order as appearing to be in possession of the material. If the order is made against a company or institution, the proper person should direct the order to a person in authority and with responsibility for the material.

35. When serving a production order, the proper person should ask for the material specified in the production order to be produced. A proper person may take away the material covered by the production order, except where the production order is made under section 380(5)(b) and only allows access to, rather than removal of, the material.

36. If any of the material so specified is information contained in a computer, then –

a) where the order requires the material to be produced to a proper person for the proper person to take it away, the material must be produced in a form in which the proper person can take it away and in which it is visible and legible;

or

b) where the order requires a proper person to be given access to the material, the proper person must be given access to the material in a form in which it is visible and legible^[20].

37. However, where the material specified is the actual computer or other equipment (instead of the information held on it), a proper person must ensure that this is produced rather than information extracted from it. The proper person should ensure that care is taken when the individual produces the material so that the material on the computer is not, for example, deleted or corrupted (whether deliberately or accidentally).

Copying and retention of material

38. A proper person may take copies of, or photograph, any material which is produced, or to which access is given, in compliance with a production order. Any such material may also be retained for as long as it is necessary (in its original form) in connection with the investigation for the purposes of which the order was made.

39. Moreover, if the proper person has reasonable grounds for believing that the material may need to be produced for the purposes of any legal proceedings, and that it might otherwise be unavailable for those purposes, the material may be retained until the proceedings are concluded.

Legal Privilege

40. A production order does not require an individual to produce, or give access to, any items subject to legal privilege (see paragraphs 6 - 10).

Written record of proceedings

41. In cases where a proper person intimates in person a production order authorising access to material, they should make, or cause to have made, a record of the articles and material removed and/or accessed in compliance with a production order, unless it is impracticable to do so. A copy of this record should be made available to the subject of the order upon request.

42. The subject of the order must be informed that the record of proceedings will be made available to them upon request.

43. If appropriate (usually where an order to grant entry is made) the proper person should provide a receipt to the owner or occupier of the premises entered and to the subject of the order (if present) before leaving the premises.

Ancillary order to grant entry

44. Where the sheriff makes a production order requiring a person to give a proper person access to material on any premises, the sheriff may also make an order (under section 382 of POCA/) to grant entry to the premises. This is an order requiring any person who appears to the appropriate person to be entitled to grant access to the premises to allow a proper person to enter the premises to obtain access to the material.