Rule 62O Application for an overseas production orderF1

(1)

Subject to rule 62Q(7)(c), an application for an order under section 1 shall be made by giving notice in writing to the chief clerk which shall—

(a)

identify the applicant for the order and demonstrate that the applicant is entitled under the Act to apply;

(b)

identify the respondent;

(c)

specify the designated international co-operation arrangement by reference to which the application is made;

(d)

specify or describe the electronic data in respect of which the order is sought;

(e)

specify—

(i)

the person, or the description of person, to whom the applicant is seeking the Court to order that electronic data must be produced or made accessible; and

(ii)

the period by the end of which the applicant is seeking that that electronic data must be produced or made accessible (which shall be a period of 7 days beginning with the day on which the order is served on the respondent, unless the Court otherwise directs);

(f)

state whether the applicant is seeking a non-disclosure requirement in the order; and

(g)

be accompanied by a draft of the order sought by the applicant.

(2)

The application shall be supported by an affidavit which shall—

(a)

explain the grounds for believing that the respondent operates in, or is based in, a country or territory outside the United Kingdom which is a party to, or participates in, that designated international co-operation arrangement;

(b)

explain the grounds for believing that the electronic data sought does not consist of or include excepted electronic data;

(c)

briefly describe the investigation for the purposes of which the electronic data is sought and explain—

(i)

the grounds for believing that an indictable offence has been committed which is under investigation or in respect of which proceedings have begun; or

(ii)

how the investigation constitutes a terrorist investigation within the meaning of the Terrorism Act 2000;

(d)

explain the grounds for believing that the respondent has possession or control of all or part of the electronic data sought;

(e)

explain the grounds for believing that the electronic data sought is likely to be of substantial value to the investigation, or the proceedings (as the case may be), whether by itself or together with other material;

(f)

where paragraph (2)(c)(i) applies, explain the grounds for believing that all or part of the electronic data sought is likely to be relevant evidence in respect of the offence concerned;

(g)

explain the grounds for believing that it is in the public interest for the respondent to produce or give access to the electronic data sought, having regard to—

(i)

the benefit likely to accrue to the investigation, or to the proceedings (as the case may be), if that data is obtained; and

(ii)

the circumstances under which the respondent has possession or control of any of that data; and

(h)

where a non-disclosure requirement is sought in the order—

(i)

explain why such a requirement would be appropriate; and

(ii)

specify or describe the proposed duration of the requirement, if ordered.

(3)

Subject to rule 62Q(7)(b), the applicant for an order under section 1 shall serve the notice of the application, the supporting affidavit and the draft order on the respondent and on any other person affected by the order being sought.

(4)

In the event that an overseas production order is made, the applicant shall as soon as practicable serve the order on the Secretary of State F2, or on a prescribed person, for service on the respondent.

(5)

Where notice of the application was served on a respondent, in the event that the application is dismissed or abandoned, the applicant shall—

(a)

as soon as reasonably practicable so notify that respondent; and

(b)

where the application is dismissed, as soon as reasonably practicable notify that respondent if the Court nonetheless orders that for a period that respondent must not—

(i)

conceal, destroy, alter or dispose of any of the electronic data specified or described in the application; or

(ii)

disclose the making of the application or its contents to any person.

Annotations

Textual amendments

F1: Pt. 8B inserted (22.2.2021) by The Crown Court (Amendment) Rules (Northern Ireland) 2021 (S.R. 2021/16), rule 1(3), Sch.
F2: Words in rule 62O(4) inserted (17.5.2023) by The Crown Court (Amendment) Rules (Northern Ireland) 2023 (S.R. 2023/68), rules 1, 2(1)