A Production Order requires the production of specified material, typically from solicitors, accountants or financial institutions, and relating to their client. A production order is obtained under s.345 of The Proceeds of Crime Act 2002 (POCA), by law enforcement agencies in relation to a confiscation, money laundering or civil recovery investigation.
Professionals are often required to disclose information and documents about current or former clients suspected of criminal activity. This is likely to conflict with the pre-existing duty of confidentiality to the client, so nothing should be disclosed, not even that you act for the client, without being served with a lawful production order.
Failure to comply with a production order can lead to criminal sanctions but alternatively there is a risk of breaching the duty of confidentiality to clients if in complying with the order a professional reveals too much information. Production orders can raise complex compliance issues and it can be difficult to decide what exactly to hand over based on the contents of the Order. Saunders Law often advises professional clients on the right path to take between these competing risks
Once the Production Order is served, there will be seven days to comply with it, unless the Judge has decided that a different time period would be appropriate. An application can be made to the court to vary or amend the Order, but 2 days clear notice must be given of this.
It can be time consuming to locate any documents that have been specified in the Order, especially if files have been archived, or to review all files to ensure that the documentation that is referred to is not available. The Production Order does not apply to documents that are the subject of Legal Professional Privilege (LPP), but this is a much narrower concept than confidentiality.
If a law enforcement agency states they are investigating a client in relation to a criminal offence with a financial benefit, consideration must be given to whether there is a suspicion of money laundering which needs to be reported under s.330 of the Proceeds of Crime Act 2002 and the Money Laundering Regulations 2007.
The question also arises of whether you should inform your client about the Production Order. Generally there is an obligation to inform the client of any information material to that retainer, however you will not be able to disclose this information if there is a specific non-disclosure provision in the Order or if the disclosure would give rise to a criminal offence such as s.342 POCA which deals with disclosures likely to prejudice the investigation.
If you are unsure about how to proceed with a Production Order or require further information Saunders Law would be pleased to assist.
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