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A Production Order typically requires a person to provide access to or hand over material in their possession that is useful to an investigation into their legal and financial affairs. A Production Order can be enforced by the police, HMRC, the National Crime Agency (NCA), or SFO Serious Fraud Office (SFO). Applications for Production Orders are usually made without giving the possessor of the material prior warning or notice (ex parte), therefore scrutiny of the information supplied is usually left to judges and investigators at higher levels. 

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). 

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. The materials tend to be confidential records that are produced in the course of business. If the material is not subject to legal privilege and it is within your possession, you are required by law to provide it to the relevant authorities. If you fail to comply with a Production Order, you will be in contempt of court, which can incur a hefty fine or imprisonment in extreme cases. 

What is the difference between a Production Order and a request for information? 

In order to speed up the information-obtaining process, some authorities and in particular police investigators use Form DP2 to request the disclosure of personal data from an organisation. This should be taken as a formal disclosure request, and also confirms that the data will be processed in line with the Data Protection Act 2018 and the General Data Protection Regulations (GDPR). However, this is simply a request and the recipient of the request does not need to comply or provide the requested material. A Production Order however must be followed to avoid punishment.

Seeking a Production Order and locating any documents specified within it can be more time-consuming for authorities, especially if files are missing or archived, or are not available because it has been destroyed. A Production Order does not apply to documents that are subjected to Legal Professional Privilege, which is different to confidentiality.  

How does a Production Order relate to money laundering? 

If you are being investigated for offences relating to money laundering, a Production Order might be served against you or your business in order to obtain bank statements and other correspondence that will need to be looked into as part of the investigation. The Order will require you to hand over any material contained within the order to the authorities making the request. Authorities may request permission to enter premises such as a business office in order to obtain the desired materials. A Production Order can also be requested in relation to investigation activity linked to exploitation, detained property or funds, frozen funds, civil recovery and confiscation.  

How do you challenge a Production Order?

A Production Order should state that the person specified in the Order is subject to either a money laundering, exploitation or confiscation investigation. It should explain that the property requested and being investigated is subject to frozen assets, detained property, civil recovery or detained cash investigation. The application should also express that the Order is essential for investigative purposes, that the relevant person is in possession of the materials requested, and that the Order has been made in relation to materials specified.

Challenging a Production Order is quite similar to challenging a search warrant. The applicant can apply to keep the materials via an application pursuant to Section 59 of the Criminal Justice and Police Act 2001. If however the legality is successfully challenged by those making the application, the candidate cannot apply in this way. 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. 

Most applications for Production Orders are made without the subject's awareness (ex parte), therefore asking for disclosure of the information upon which the authorities relied when making a claim for the Order can help to clarify the legalities behind the application. It can also give the subject of the Production Order a chance to clarify assumptions or allegations made against them. 

Contact our Professional Business and Financial Crime Solicitors in Central London Today

If you have been served a Production Order and want to challenge it, this must be made before the seven-day deadline expires. It is therefore important that you seek legal advice as soon as possible. Our highly experienced legal team of business crime solicitors use their expertise to advise clients on the best way forward and their legal options when challenging Production Orders.

At Lewis Nedas Law, we have successfully advised clients with even the most highly complex cases in relation to business crime, fraud, money laundering, asset freezing and associated Production Orders. To speak with one of our financial crime lawyers, please contact us on 020 7387 2032 or complete our online enquiry form.

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