The possibility to employ the OPO as a special instrument of international cooperation was introduced in the U.K. by the Crime (Overseas Production Orders) Act of 12 February 2019. The Act grants British law enforcement officers* the right to file applications to the court requesting information stored in overseas jurisdictions if it is necessary for criminal investigations or court proceedings. These requests may be sent to foreign providers of communication services (such as Google or Facebook) and apply only to the data stored in electronic format. In addition, the OPO cannot apply to confidential data (about health, religion, financial situation) as well as to the information protected by the legal privilege.
The decision to serve an OPO is taken by the Crown Court (in England, Wales and Northern Ireland) or the High Court of Judiciary (in Scotland). To this end, the court assesses whether the request to get certain data is necessary and reasonable, based, in particular, on the following factors:
- There are reasonable grounds for believing that an indictable offence has been committed and proceedings in respect of the offence have been instituted or the offence is being investigated or the order is sought for the purposes of a terrorist investigation;
- There are reasonable grounds for believing that all or part of the data specified in the application for the order is likely to be of substantial value to the proceedings or investigation or relevant evidence in respect of the offence;
- There are reasonable grounds for believing that it is in the public interest for the electronic data to be produced having regard to the benefit to the proceedings or investigation.
Besides that, for an OPO order to be served it is necessary that the U.K. and the country where the relevant provider of communication services is based have a designated international co-operation arrangement**.
In the event that the application is accepted, the court sends the OPO request to the Secretary of State (the Lord Advocate in Scotland) to examine it within three months and forward it to the respective provider of communication services. The latter should collect and produce the requested data within seven days (the time limit may be extended or shortened if the judge considers it appropriate). At the same time, the provider of communication services decides autonomously which information may be subject to disclosure (i.e. does not regard personal record or data protected by legal privilege).
The introduction of the OPO is aimed at reducing the time necessary for foreign countries to produce information requested by the U.K. law enforcement officers in the framework of investigations. At present, they have to resort to the mutual legal assistance (MLA) mechanism***. The procedure in this case is rather lengthy and as a result they risk failing to get necessary evidence in time.
However, the use of the OPO entails further difficulties.
Firstly, the “accelerated” OPO procedure can in practice be considerably prolonged due to the engagement of an additional actor, i.e. the Secretary of State. Taking into account the fact that after the set deadline of three months within which the latter has to examine the OPO the respective application is revoked, delays are likely to occur in the event that the application is not timely examined by the Secretary of State. As a result, law enforcement officers will have to further apply for an OPO and the court will have to reconsider the application.
Secondly, an OPO may include a restriction on disclosure by a court’s decision, which means that the person information about whom is requested may not be informed about this fact at least by the time of indictment. As a consequence, there is a risk that such persons may initiate satellite litigations concerning the appropriateness of using of relevant data.
Thirdly, the data requested from a provider of communication services based in a certain country may be stored in another jurisdiction. In this case the provider will face further difficulties related to the legal provisions on data protection in the respective jurisdiction, in particular, given the tight deadline for replying to the OPO (seven days).
* The list of officers entitled to apply for an OPO includes constables, procurators, members of the Serious Fraud Office (SFO) and the Financial Conduct Authority (FSA), officers of HM Revenue and Customs and other law enforcement bodies.
** So far, this kind of arrangement has been reached only with the United States (it entered into force last July). Thereby, the U.K. got the opportunity to request electronic data stored in the U.S. territory unless the subject of the investigation is a U.S. citizen, a U.S. permanent resident or an individual physically present in the U.S. territory. However, even having this treaty British and U.S. law enforcement officers cannot use all the advantages of the OPO. This is primarily due to the fact that the United States unlike the United Kingdom has not made all necessary amendments to its domestic legislation yet. As a consequence, currently only British law enforcement officers can get information under the OPO. Moreover, the existing U.S. legal provisions let providers of communication services present their objections to OPO, which can cause satellite litigations and considerably increase the deadlines for providing information requested or even result in refusals to provide it.
*** It should be highlighted that due to the recent ruling of the U.K. Supreme Court to limit the SFO’s powers to request documents held overseas British law enforcement officers are left with only one instrument for obtaining necessary information in the framework of investigations, i.e. MLA.