The Crime (Overseas Production Orders) Bill received Royal Assent last month to very little fanfare. However, the Crime (Overseas Production Orders) Act 2019 (the Act) - as it is properly called now - may have a significant impact on the landscape of criminal investigations and prosecution and therefore represents a very interesting development in this space.
The judgment in the case of KBR v SFO near the end of 2018 had already brought a lot of attention to the issue of UK disclosure orders and their extra territorial effect in recent months. That case concerned "section 2 notices" under the Criminal Justice Act 1987 and shifted the dial towards giving greater access to documents held abroad. However, despite the obvious benefits of the judgment for investigating authorities seeking documents abroad, it came under a lot of criticism for being an unwelcome example of judicial lawmaking.
Statutory legislation now appears to have caught up with the judicial zeitgeist. The Act seeks to massively speed up requests for documents abroad by enabling UK courts to approve disclosure orders unilaterally against overseas "communications services providers" (CSPs) in order to obtain communications between two parties. These orders will be available where the UK has a specific agreement for this purpose in place with the third country. The UK is in the process of agreeing its first agreement of this kind with the USA, which is appropriate given that many of the largest CSPs (such as Google and Facebook) are based in the USA. If successful, the Act will allow authorities to sidestep the much slower route of applying for the help of local courts through mutual legal assistance (MLA) requests, which is currently necessary in many cases.
The Government's public announcement of the passage of the Act expressed a hope that the MLA process, which can take months or even years to complete, might be reduced to days or weeks when it is replaced with an overseas production order under the Act.
We will continue to watch with interest for the first use of these new powers. As we have observed recently, the National Crime Agency in particular appears to have started enthusiastically making use of new powers made available to it over the past couple of years. Will the same be true for overseas production orders?
The cumbersome nature of long standing arrangements for mutual legal assistance has for many years inhibited the speed at which UK policing has been able to access vital information stored in other countries. More timely access to such data is welcome, and the provisions in the Crime (Overseas Production Orders) Act can speed up investigations whilst still allowing for in-built judicial safeguards and scrutiny.