Production Orders

Question 1

Production Orders

The information sought should not:

Answer 1

Make unreasonable or unnecessary demands on a provider of information, whom the order is against. Stipulate a reasonable delivery period (not less than a week).

Question 2

What is a production order ?

Answer 2

Section 74 of the Search and Surveillance Act 2012

1. Requiring a person or organisation (such as a business) to produce documents to enforcement agencies as evidential material of a specified offence.
2. Production orders are issued by issuing officers. (These are the same people as for search warrants).

Question 3

Production Order versus Search Warrant ?

Answer 3

1. 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.
2. Very often production order powers will be less intrusive and involve less cost, than using search warrants as an alternative.

Question 4

A production order is in force for the period specified in the order?

Answer 4

(Section 76).
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).

Question 5

Who may apply for a Production Order ?

Answer 5

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

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 6

Before granting approval to apply for production orders, the district approver must take these matters into account and be satisfied:

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

If your application relates to a news media organisation, you must:

Answer 7

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 8

Approval to apply for a Production Order

Where practicable obtain written authority to make:

Answer 8

An application for a production order from a constable of or above the position level of sergeant where practicable.

Question 9

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

Answer 9

(Section 72).

• 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.

Question 10

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:

Answer 10

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

All applications for production orders must be made using prescribed forms available in Police Forms > Search and Surveillance > Production Orders

Question 11

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:

Answer 11

(Section 100 (3))

• 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).

Question 12

If an oral application is allowed:

Answer 12

• 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 13

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:

Answer 13

• 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.