Policy background
- Electronic information is increasingly important for the investigation and prosecution of criminal offences. A significant number of companies providing services which generate and/or store electronic data are located outside the UK. This means that while data could be generated by any user, that data can be managed, processed or stored by a company not in the UK, meaning it is beyond the reach of existing domestic court orders. This is because domestic court orders either cannot be made where the data is not located in or accessible from the UK or, where they can be made, they cannot be served extra-territorially – i.e. on entities outside the UK.
- For data that is beyond the reach of domestic orders, a form of judicial co-operation, Mutual Legal Assistance (MLA), is available. Under MLA, a requesting country can formally request assistance from an executing authority or country who is then responsible for collating the evidence, often using their own coercive orders or warrants. However, in some cases, the MLA process is not timely enough to contribute to an investigation or secure a prosecution.
- The COPO Act addresses the constraints of existing domestic court orders and the limits of MLA in being able to compel the production of electronic data from another jurisdiction quickly. The Act does this by creating a new overseas production order which has extra-territorial effect, meaning that these orders are granted by UK courts exerting jurisdiction over evidence and persons outside the UK. This jurisdiction may only be asserted where an international co-operation arrangement to which the UK is a party permits this to happen, and has been designated for the purposes of the Act. An international co-operation arrangement will be in the form of a treaty with another country or countries, which relates to the provision of MLA in connection with the investigation or prosecution of offences. The Act reflects the anticipated framework required to implement such international agreements in future.
- The practical effect of this Act is to empower a UK court (at the request of an appropriate officer as defined in the Act) to require the production of stored electronic information directly from a person or company located overseas, such as an overseas service provider, as it would if the information were located or controlled in the UK.
- The Bill was introduced in the House of Lords on 27 June 2018. During its passage through the House of Lords, the Government introduced an amendment to ensure that only those international agreements which have been laid before Parliament under section 20(1)(a) of the Constitutional Reform and Governance Act 2010 may be designated as international co-operation arrangements for the purposes of the legislation. During its passage through the House of Commons, a number of Government amendments were made to the Bill in response to concerns raised by Members on both sides of the House. These included amendments on: obligating the Government to seek death penalty assurances in connection with relevant international agreements; ensuring that journalists are given notice of applications for overseas production orders in appropriate cases (unless relevant exemptions apply); introducing a ‘relevant evidence’ test where a court is considering making an order; defining the term "criminal purpose" for the purposes of determining whether data is journalistic data; and including a statutory override to clarify the interaction between the Act and data protection legislation. Amendments relating to death penalty assurances in international agreements were the most scrutinised element of the Act throughout its passage.
