Production Orders

Question 1

What section are Production Orders made under?

Answer 1

74 of the Search and Surveillance Act 2012

Question 2

Who are Production Orders approved by?

Answer 2

Issuing Officers

Question 3

What are benefits of a Production Order?

Answer 3

Less intrusive and involve less costs than a Search Warrant

Question 4

What is the duration of a Production Order?

Answer 4

A Production Order is in place for a specified length of time not exceeding 30 days. Section 76 Search and Surveillance Act 2012

Question 5

Who can apply for a Production Order?

Answer 5

Any enforcement officer may apply to a issuing officer for a Production Order. Section 71(1) Search and Surveillance Act 2012.

Question 6

Matters to consider before approval….

Answer 6

• The grounds for applying for a production order are met
• The resource benefit of making an application is advantageous to Police
  and the investigation (i.e. the use of a production order is an effective
  investigative tool and the offence(s) under investigation are sufficiently
  serious to justify the resource)
• The information sought does not make unreasonable or unnecessary
  demands on the telecommunications provider, whom the order is against,
  particularly if those documents sought are forward looking (i.e.
  documents and call associated data coming into the control of the person
  etc. whom the order is against while the order is in force).

Question 7

Approval to apply for a Production Order…..

Answer 7

Where practicable obtain written authority to make an application for a
production order from a constable of or above the position level of sergeant
where practicable.

Question 8

Grounds for applying for a Production Order……

Answer 8

• SUSPECT that an offence has been, is being, or will be committed (it must
  be an offence for which you could apply for a search warrant), and
• BELIEVE that the documents sought by the proposed order:

− constitute evidential material in respect of the offence, and
− are in the possession or under the control of the person against whom
the order is sought, or will come into their possession, or under their
control while the order is in force. (Section 72).

Question 9

How to apply……

Answer 9

You must apply for a production order in writing along with a personal
appearance before, or communication orally with, the issuing officer unless it
is impracticable to do so in the circumstances.

Question 10

Oral applications for a Production Order…

Answer 10

An issuing officer may allow an application for a production order to be made
orally (e.g. by telephone or by personal appearance) and excuse the applicant
from putting all or part of the application in writing if satisfied that:
- Requiring a written application would result in a delay that would
compromise the effectiveness of the search, and
- The question of whether the order should be issued can be properly
determined on the basis of an oral communication or personal appearance,
and
- All required information is supplied to them (orally, or partly orally and
partly in writing).
(Section 100 (3))

If an oral application is allowed:
- The issuing officer must record the grounds for the application as soon as
practicable
- The applicant must complete the application form capturing the
information conveyed to the issuing officer as soon as practicable and in
any event within 24 hours, and the order.

Question 11

Using “Hearsay” evidence…..

Answer 11

Hearsay evidence can be used to outline the grounds on which the application
is made, if it is highly reliable. Indicate its reliability by stating:
* sufficient information to prove the reliability of what has been stated
* the informant’s reliability and whether they have given reliable
information in the past. An appropriate way to say this is: “In the past,
Informant A has supplied Police with information that has proved to be
reliable.”
* whether the information has been confirmed by other means.

Question 12

Using a Production Order over a Search Warrant…..

Answer 12

You have the choice whether a standard search warrant or production order
should be sought for use in any given case. While compliance costs are
incurred by a business issued with a production order, these costs are offset
against the avoidance of the disruption that would otherwise occur by
physical entry and search of the premises under a search warrant. Very often
production order powers will be less intrusive and involve less cost, than
using search warrants as an alternative.