A Production Order is a legal mandate compelling an individual or business to furnish documents to a law enforcement agency, such as the CPS, NCA, HMRC, or SFO. These orders are increasingly common in investigations involving frozen funds, compelling the production for access to specific materials, including bank statements, within a defined timeframe.
The Code of Practice, produced to assist law enforcement officers in the exercise of their functions, describes a Production Order as “…a court order which may be made and served on any person or institution, for example, a financial institution, requiring the production of, or allowing access to, material within the time period specified in the order. This might include documents such as bank statements…”
Typically, the deadline for complying with a Production Order is stringent, often set at 7 or 14 days. Extensions may be negotiated, particularly for extensive requests, providing crucial time for seeking expert legal counsel to evaluate potential challenges to the order.
Failure to comply with a Production Order, barring a reasonable excuse, constitutes a criminal offence and could result in contempt of court charges, carrying potential imprisonment. Immediate legal advice is vital upon receiving notice of such an order.
Challenges to a Production Order must be made within the compliance period, suspending the obligation to produce requested materials until the court hears the appeal. Valid grounds for a challenge include the relevance and substantial value of the requested material to the investigation, which may encompass areas such as money laundering and asset recovery.
Many Production Orders are issued ex parte, without the subject's knowledge, preventing any opportunity to contest it before issuance. This lack of initial scrutiny can lead to orders covering irrelevant material or failing to meet the "substantial value" criterion.
Applicants for Production Orders are bound by duties of full and frank disclosure and candour, obliging them to inform the court of any information that might weaken their case. Non-compliance with these obligations provides solid grounds for challenging the order.
Beyond potentially quashing an unfounded order, challenging a Production Order offers insights into the investigation's scope and the suspicions underpinning it. This process compels the applicant to clarify their allegations, providing a clearer understanding of the legal landscape faced.
If you have received notice of a Production Order, prompt, expert legal guidance is crucial. Our Business Crime & Civil Recovery team, headed up by James O’Hara, specialises in assessing and challenging Production Orders, ensuring you receive expert advice in considering whether the Production Order can be varied or discharged.
