Fast-track electronic evidence gathering from overseas – One step closer

14 October 2019

On 3 October 2019 the Home Secretary announced that the UK and US had signed an historic agreement that will enable UK law enforcement agencies to demand direct access to electronic data from US tech firms - the UK-US Bilateral Data Access Agreement.
 

This provides the international agreement required under the Crime (Overseas Production Orders) Act 2019 before a fast-track bilateral evidence regime can be implemented. 

The Act received Royal Assent in February this year and followed the US CLOUD Act from 2018. Additional agreements with other jurisdictions are foreseen and it is expected that one with the European Union will be an immediate priority.

See my related blog: New Powers to Gather Electronic Evidence from Overseas Agreed  

The Overseas Production Order

The Overseas Production Order (OPO) allows UK law enforcement to obtain electronic data directly from service providers based outside the UK for the purposes of criminal investigations and prosecutions for serious crime. Under this new regime, for example, the US will have reciprocal access, under a US court order, to data from UK communication service providers. UK-US co-operation was a key priority for the UK government given the location of global tech companies/service providers.

This marks a major departure in the current mutual legal assistance regime in relation to gathering electronic evidence from overseas and has been billed as a way of overcoming mutual legal assistance (‘MLA’) procedures that are cumbersome and time consuming.

This move has not been universally well received and concerns were raised during the passage of the Bill relating to safeguards – see my related blog - The Crime (Overseas Production Order) Bill - We must not lose control of data sharing. The provisions require no oversight by a judicial/competent authority in the executing state, meaning that the protections that one might expect to see in the context of cross border evidence gathering are missing.

Another concern relates to the question of assurances in relation to the death penalty. This topic was vigorously debated in the Houses of Parliament – see my related blog New Powers to Gather Electronic Evidence from Overseas Agreed . The Home Secretary’s announcement of 3 October stated that “the UK has obtained assurances which are in line with the government’s continued opposition to the death penalty in all circumstances”, however no further details were presented. The issue therefore remains a live one.

The Treaty still needs to be ratified by both Congress in the US and the Houses of Parliament. Reports suggest this will be within the next six months. 

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

About the author

Rebecca Niblock is a partner in Kingsley Napley’s criminal litigation team. She has significant experience in both domestic criminal litigation and extradition, having acted for defendants in a wide range of criminal matters from serious fraud, money laundering and corruption, to sexual offences and offences involving violence or drugs. Rebecca specialises in cases involving cross-jurisdictional elements. She has successfully defended a large number of persons requested by other states, both inside and outside the EU in extradition proceedings at all levels from the magistrates’ court to the Supreme Court. She also has experience in advising in sanctions cases, and in providing advice to those subject to Interpol red notices and mutual legal assistance requests. Rebecca is rated as a leading expert in Chambers UK 2019 for crime: extradition.

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