Long arm of the law: new powers to gather electronic evidence overseas
The Overseas Production Order (OPO) marks a sea-change in the ability of law enforcement to gather electronic evidence overseas. Introduced under the Crime (Overseas Production Order) Bill this would give law enforcement agencies and prosecutors the power to apply for an OPO to obtain electronic data directly from service providers based outside the UK for the purposes of criminal investigations and prosecutions for serious crime. This is a radical departure from the current mutual legal assistance regime. (See our related blogs for more information).
Having passed through its various stages in the House of Lords, key issues that were discussed included the use of the data once it has been provided to the requesting state: is it restricted to the offence for which the order is made? What happens if other offences are disclosed? Would a further application be necessary? The question of “excepted data” and protection of journalists’ confidential information was also the subject of some debate during the Bill’s passage. In addition, an amendment was secured which would prevent the Secretary of State from making regulations which would designate an international co-operation agreement with a country or territory where the possible sentence is death. This amendment would apply in all cases except where the country or territory has provided firm assurances that any data obtained under the legislation would not lead to the imposition of the death penalty.
The question of whether a finding of contempt of court (in England and Wales) for a failure to comply with an OPO would have any impact was also raised. The Government minister confirmed that they were working with “overseas providers to create a high compliance environment”. However the fall-back position for this is to “resort to MLA in the case of non-compliance.”
The potential conflict between the Bill and the Data Protection Act 2018/ General Data Protection Regulation was highlighted – not least as regards Brexit and the impact of any data-sharing arrangements between the UK and another third country and whether this would impact on an adequacy decision from the European Commission. Entering into an agreement, for these purposes, with a third country that does not have equivalent standards could jeopardise the UK’s data protection standards.
Following it’s journey through the House of Lords, the Bill was scrutinised by the House of Commons Public Bill Committee on the 18th December. During this stage the Committee can take evidence from the public and evidence was invited from interested stakeholders.
From the criminal law practitioner’s perspective there are some other concerns in addition to those identified during the debate. The Bill states that the new powers may only be used for an indictable offence. Though this seeks to insert a threshold and a level of seriousness, this can be extremely low: indictable offences include theft (of any value); public nuisance; abstracting electricity or unlawfully obtaining personal data. The low threshold is also important in terms of the ability of a judge to include a non-disclosure requirement into the OPO. The judge only needs to have reasonable grounds for believing that an indictable offence has been committed to order non-disclosure. This would mean that the person whose data is held by the service provider will not be informed that their information is being handed over for a period specified in the order. This is also of concern where an item subject to legal privilege is “excepted electronic data”. If an order is subject to a non-disclosure requirement, in practice the IT service provider will be the only party determining whether there is a legal privilege issue before data is handed over. The obligation to assess and therefore protect legal professional privilege is in the hands of the technology companies, potentially not legal advisers, and not independent counsel.
The Bill has many positives for law enforcement co-operation, but needs greater safeguards to protect individuals. Circumventing a judicial/competent authority in the Executing State means that checks and balances that would normally appear in the context of cross border evidence gathering and instruments of mutual recognition are missing. In the case of the European Arrest Warrant, for example, Executing States have played a vital role in safeguarding rights.
It is hoped that these issues will be addressed as the Bill progresses through the House of Commons in 2019.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.
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