Obtaining overseas electronic data

11 Sep 2018

Traditionally, when UK law enforcement agencies (“LEA”) have sought access to overseas data as part of the evidence gathering process of an investigation, the only route available to gather such evidence would be via the Mutual Legal Assistance (“MLA”) channel. This was often seen as a cumbersome process, requiring the UK to issue a formal request to a foreign executing authority/country. This often involved significant government to government liaison, with one drawback being that evidence would not be secured in time to support any UK based investigation/prosecution.

In an attempt to expedite the MLA process, and in acknowledging the ever increasing use of software applications to support/facilitate criminal activities (many of which are outside the UK), the UK is proposing new legislation which is designed to allow UK LEAs to gather overseas data in a timely and far more effective manner. If enacted, the Crime (Overseas Production Order) Bill (“COPO”) will enable cross-border access to crucial data and information in investigations and prosecutions, which the Government calls “a key component of tackling crime and terrorism in the 21st century”.

COPO will provide UK LEAs with powers to apply to a UK court (rather than requiring a foreign court to do so following an MLA request) for an order with extra-territorial effect requiring an overseas data provider to disclose electronic information that is held by that data provider or is made accessible by them, provided this is supported by an international cooperation agreement with the relevant country.

Mirroring the conditions for obtaining domestic production orders under the Proceeds of Crime Act 2002, an overseas production order will only be granted by a judge if he/she is satisfied (amongst other conditions):

  • There are reasonable grounds for suspecting that an indictable offence has been committed and that proceedings in relation to that offence have been instituted or that it is being investigated, or alternatively, the order is sought for the purposes of a terrorist investigation.
  • The data is likely to be of substantial value to the criminal proceedings or the investigation in relation to which it is requested.

Excepted electronic data (defined in COPO as data containing privileged material, and data containing personal material) are certain circumstances excluded from production.

An interesting addition in COPO is that an order may include a non-disclosure requirement preventing the subject of the order disclosing the fact or content of the order except with the leave of a judge or the applicant.

COPO is currently at the Committee stage in the House of Lords, but various concerns were raised at its second reading in the House of Lords. The Explanatory Notes to COPO suggest that non-compliance with an order could give rise to contempt of court proceedings, but Lord Rosser noted that little information has been provided by the Government as to how that course of action would work. A further concern was how the non-disclosure requirement that is made as part of any order will be supervised/enforced, given that it will be directed at individuals based outside of the jurisdiction. In addition, concern was also raised about how the UK would ensure that the judicial oversight required for domestic orders will be reciprocated by a relevant country (with which the UK has a bilateral arrangement) so as to sufficiently safeguard UK companies/persons when its LEA applies for an equivalent order.

We will keep COPO under review, and report back following its passage through both chambers of Parliament.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Iskander Fernandez

Iskander Fernandez

Partner,
London


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