As part of investigations into money laundering, confiscation or civil recovery, law enforcement agencies can apply to the Grand Court for a production order under the Proceeds of Crime Law (2020 Revision).
Under section 155(1) an officer, often assisted by counsel from the Office of the Director of Public Prosecutions, can make an application without notice (ex parte) for a production order to a judge in chambers.
Because of the nature of these investigations, the materials sought are often confidential business records. If the material is not subject to legal privilege and it is within your possession, you are required by law to provide it. If you fail to comply with a Production Order, you may be held in contempt of court, which can incur a substantial fine or imprisonment.
Most Production Orders will require the material to be supplied within 7 days although it is sometimes possible to agree an extension of the time required by consent with the authority that has obtained the Production Order.
However, any person affected by an order may make an application to discharge or vary the order within that 7 day time limit (section 155(3)).
Often these applications are viewed as routine by officers and applications come in a ‘standard’ format or are drafted too broadly or with too little disclosure. Where an application has been essentially just been ‘rubber-stamped’ there may be scope for a challenge. Challenges to the order may be brought, on procedural grounds, in relation to the limits of the court's powers on the merits and/or by seeking to narrow the scope of the documents to be produced. The order must also be served promptly to allow for response within 7 days, if it is not then it may be argued that it is no longer a lawful order.
If you have been served with an order or need further information it is imperative you seek urgent specialist advice, specific to your circumstances. Prathna Bodden has a wealth of experience in this area and can be contacted on pbodden@samsonlaw.ky or +1(345)949 0123.