On 17 April 2018, the European Commission issued a proposal for the introduction of ‘European Production and Preservation Orders for electronic evidence in criminal matters’. The aim is to make it easier and faster for police and judicial authorities to obtain electronic evidence for investigations or prosecutions, including emails or documents stored on the cloud. As the proposal appears to suggest, existing mechanisms for the sharing of evidence are not fit for the modern world of social media, messaging services and other communication ‘apps’. The problems this technology creates for investigators and prosecutors are obvious.

The EU proposal

A European Production Order would allow a judicial authority in a Member State to request electronic evidence directly from a service provider offering services in the European Union, and established or represented in another Member State. This would apply regardless of the actual location of the data. The provider would be obliged to respond within 10 days (reduced to within 6 hours in cases of emergency).

A European Preservation Order would allow a judicial authority in a Member State to oblige a service provider to preserve specific data, so that it may be requested later via mutual legal assistance, a European Investigation Order, or a European Production Order.

There is at present no timetable for the Regulations to be brought into effect. It is highly likely any implementation would be after ‘Brexit’ in March 2019. In any event, as this would be a ‘Freedom, Security and Justice’ measure, the UK would have had to ‘opt-in’ to the Regulation.

The UK’s White Paper

The UK Government’s recent White Paper pledged to “maintain existing operational capabilities”, including “practical cooperation to investigate serious criminality and terrorism” and “existing tools and measures”.

However, it says the UK will no longer be part of the EU’s common policies on security, justice and home affairs:

“Instead, the Government is proposing a new security partnership that maintains close cooperation – because as the world continues to change, so too do the threats the UK and the EU both face.”

In light of these comments, it might be thought that the UK government would be keen to be a part of the new scheme. Without a right to opt-in, however, it will be for the EU to decide whether it is permitted to do so and what (if anything) the UK will need to do in return.

Crime (Overseas Production Orders) Bill

It appears that the Government is preparing to go ahead on its own in this area, or at least to prepare the way for similar orders to be available in the UK, should there be a separate arrangement between the UK and the EU in the future.

The Crime (Overseas Production Orders) Bill, which had its second reading in the House of Lords on 11 July 2018, proposes to give the courts powers to make orders very similar to European Production Orders. Upon an application by an “appropriate officer”, a judge may only make the order if satisfied of several conditions.

One of those conditions is that there must be reasonable grounds for believing that the person against whom the order is sought operates or is based in a country outside the UK that is a party to, or participates in, an international co-operation arrangement specified in the order.

Evidently the Government is anticipating international agreements to facilitate the recovery of electronic documents stored abroad. Without being able to benefit from Electronic Production Orders, the UK is bound to require such an agreement with the EU, but there is no telling whether (or when) it would materialise.

Moreover, there does not appear to be any intention at present to replicate the European Preservation Order. Given the ease with which electronic documents can be disposed of, and the fact that mobile phone companies in the EU delete their data relatively quickly, could this be a missed opportunity for the Government?

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