Aziz Rahman of business crime solicitors Rahman Ravelli outlines why Overseas Production Orders are a worthwhile way of speeding up evidence gathering.
The introduction of Overseas Production Orders (OPOs) has to be seen as a useful measure in simplifying the evidence gathering process.
The Crime (Overseas Production Orders) Act 2019 being given Royal Assent means that law enforcement agencies can now make an application ex parte to the Crown Court for an OPO to approach foreign companies to obtain data about UK citizens for use in criminal investigations and proceedings.
OPOs now make it legitimate to gather data from the likes of Facebook, Twitter and Google and to use it in court as evidence. This has to be seen as progress. The previous procedure could see data requests taking about a year to be concluded. Under the new process, this can take just a matter of days.
There is little doubt that this will aid enforcement agencies. But it does not give them a licence to go on a fishing expedition. A Crown Court judge hearing an application for an OPO has to be satisfied that the data the enforcement agency is seeking is likely to be of substantial value to the criminal proceedings or the investigation for which it is being requested. The Court also has to be satisfied that production of the data would be in the public interest.
Such controls are likely to be important in ensuring the use of an OPO does not simply become another roll of the dice by investigating agencies.
While we are yet to see it proven, it may also be the case that an OPO can be of value to a defence team in any investigation where one is granted. Any data produced under an OPO may prove to be admissible evidence that assists a defence case rather than material that aids the enforcement agency that sought the Order.
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