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A Production Order is a court order that demands the disclosure of documents, materials or information in your possession. These orders are frequently used during money laundering investigations, and are typically requested without notice.
If you have been subject to a Production Order, please contact us at Ashmans Solicitors for expert legal advice. It is possible to challenge a Production Order, but you must act quickly. Our fraud and financial crime solicitors can advise you further.
What is a Production Order under POCA?
Production Orders are available under section 345 of the Proceeds of Crime Act 2002. They are used by the authorities to gain access to certain materials or property that could aid a criminal investigation.
A Production Order can be granted if you are the focus of:
- A confiscation investigation
- A civil recovery investigation
- Exploitation proceeds investigation
- A money laundering investigation
You could also be subject to a Production Order if the property specified in the application is:
- Subject to a civil recovery investigation
- A detained cash investigation
- A detained property investigation
- A frozen funds application
The legislation states that the person specified in the order must produce the material to ‘an appropriate officer for him to take away’, or give an officer ‘access to the material’. Such materials might include bank statements, business accounts and correspondence.
As the person under investigation, a Production Order might require you to produce these materials. Or, it could require another entity in possession of the materials to hand them over. This could be your business, your solicitor or your bank.
How do Production Orders work?
Firstly, the authorities submit an application to the court requesting a Production Order. This application must satisfy certain conditions. In particular, it must specify what kind of investigation is underway (as listed above). Also, it must state that:
- The order is sought for the purposes of an investigation; and
- What material is being sought; and
- Who appears to be in possession or control of this material – which may be the person under investigation or another entity, such as their business
A judge will consider the application. If the criteria have been met, the same judge will issue a Production Order. This will stipulate how much time the person possessing the materials has to produce them to the appropriate officer. Usually, this is seven days, beginning with the day the order is made. However, the judge can demand either a shorter or a longer period, depending on the circumstances.
Ordinarily, Production Order applications are made on an ‘ex-parte basis’. This means ‘without notice’. In practical terms, this means you will not know that the authorities are seeking a Production Order until it has been granted by a judge. This can come as a real surprise and also leaves you with very little time to plan your next steps. That is why immediate legal advice is so essential.
Unless you successfully challenge a Production Order, you/the business must produce the material to the relevant authority or provide access to the material. Otherwise, it is considered contempt of court. This is a criminal offence in its own right which can lead to a fine or even a period of imprisonment. It may be possible to request an extension if more time is needed to comply with the order.
Who can authorise a production order?
Various authorities in England and Wales can apply for a Production Order, including the police, HMRC, the National Crime Agency (NCA) and the Serious Fraud Office (SFO). However, they can only be authorised by a Crown Court judge.
As mentioned above, this authorisation is typically made at a hearing without notice.
What about legal privilege?
A Production Order cannot apply to documents subject to legal professional privilege. Legal privilege is a fundamental right under English law. It protects confidential communications between a lawyer and their client. Courts cannot force the disclosure of these materials. They can only be disclosed with the client’s permission.
Communications that are subject to legal professional privilege are often labelled ‘privileged and confidential’. We can advise you further if you are in any doubt about what material is barred from disclosure without your consent.
Production Order vs request for information
A Production Order is not the same thing as a request for information. A request for information is when an authority – such as the police – asks to disclose personal data. This is voluntary, and you can decline such a request without facing any penalties. This differs from a Production Order, which could lead to a contempt of court charge if you fail to comply with the terms (unless you successfully challenge the order).
Production Order vs search warrant
Furthermore, a Production Order is not the same as a search warrant. A search warrant is when an authority gets permission to enter premises and search for evidence. Materials relevant to the investigation can then be seized. With a Production Order, the onus is on the person or business specified in order to hand over the materials.
Can I challenge a Production Order?
It is possible to challenge a Production Order. However, time is of the essence. Most Production Orders provide a time limit of seven days, by the end of which the specified materials must have been produced. That is why you must act as soon as you become aware of the Production Order.
How to challenge a Production Order
Production Orders can be challenged on specific grounds. Some of the most common include:
- The authority which made the application did not have the power to apply for the Production Order
- The material is subject to legal professional privilege
- The Production Order is not legal
- The Production Order amounts to an invasion of privacy
- The authority which made the application did not comply with their duty of candour
With regard to duty of candour, this requires the applicant to make full, fair and accurate disclosure of material facts to the court. This is particularly important where Production Orders are concerned, as the application is often made without you knowing, meaning you cannot represent your interests in court. If the authority which makes the applications fails to disclose certain details, then they have failed to observe their duty of candour.
Successfully challenging a Production Order ensures that private information is not disclosed to the authorities. It may even result in the closure of the investigation.
Get expert legal advice
The court typically gives one week to comply with a Production Order. Because of the time-sensitive nature, you must get expert legal advice immediately. Our fraud and financial crime solicitors are highly experienced and are on hand to help.
We advise individuals and businesses who find themselves specified in a Production Order. We will consider whether there are grounds to challenge the Production Order and can lodge an application to vary or discharge the order on your behalf.
Production Orders can be very invasive, resulting in confidential information being provided to the authorities. We understand this prospect is distressing and can guide you through the following steps.
Beyond this, we can represent you throughout a criminal investigation. Production Orders indicate that some form of investigation is underway, and it is vital that you have your legal representative fighting your corner. We defend clients accused of all forms of financial crime, including money laundering, tax evasion and false accounting.
Contact us now
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