Production Orders

Question 1

Discuss the difference between a Production Order and a SW.

Answer 1

Very often production order powers will be less intrusive and involve less cost, than using search warrants as an alternative.

Question 2

What is the duration of a Production Order?

Answer 2

A production order is in force for the period specified in the order (not exceeding 30 days after the date on which the order is made). (Section 76).

Question 3

Who may apply for a Production Order?

Answer 3

Any enforcement officer may apply to an issuing officer for a production order. (Section 71(1).

Question 4

Do you need approval to apply?

Answer 4

You must seek prior approval from your district approver before making an application directed to a telecommunications provider seeking information such as call associated data, or content

Question 5

What must be considered before granting approval of a Production Order?

Answer 5

the district approver must take these matters into account and be satisfied:

• the grounds for applying for a production order are met
• the resource benefit of making an application is advantageous to Police and the investigation
• 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

Question 6

Who must provide approval for Production order for media organisation?

Answer 6

• obtain approval from a Police Executive member in the case of PNHQ or a district commander for a district matter, and follow the guidance on ‘Search warrants, production orders and examination orders involving media organisations in the Search chapter in the Police Manual.

Question 7

Who can approve 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

What are the grounds for applying for a Production Order?

Answer 8

You may apply for a production order if you have reasonable grounds to:

• 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 do you apply for a Production Order?

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.

In this situation you may apply to:

• make an application orally e.g. by telephone or personal appearance, or
• have your application considered without a personal appearance or oral communication e.g. by email.

Question 10

Discuss the process for an Oral Application.

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

Discuss 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.