The Criminal Procedure Rules 2020

[F1Content of application for a production etc. order under the Terrorism Act 2000 or the National Security Act 2023E+W

This section has no associated Explanatory Memorandum

47.12.—(1) As well as complying with rules 47.6 and 47.11, an applicant who wants the court to make an order under paragraph 5 of Schedule 5 to the Terrorism Act 2000 for the production of, or for giving access to, material, or for a statement of its location, must—

(a)identify the material sought;

(b)explain why the applicant thinks the material is—

(i)in the respondent’s possession, custody or power, or

(ii)expected to come into existence and then to be in the respondent’s possession, custody or power within 28 days of the order;

(c)explain—

(i)how the material consists of or includes excluded material or special procedure material (or, if not yet in existence, will do so), and

(ii)why the material is not expected to include items subject to legal privilege.

(2) An applicant who wants the court to make an order under paragraph 5(5) of Schedule 5 to the 2000 Act to grant entry in aid of a production order must—

(a)specify the premises to which entry is sought; and

(b)explain why the order is needed.

(3) As well as complying with rules 47.6 and 47.11, an applicant who wants the court to make an order under paragraph 3 or paragraph 4 of Schedule 2 to the National Security Act 2023 for the production of, or for giving access to, material, or for a statement of its location must—

(a)identify the material sought;

(b)explain the grounds for suspecting that the material is—

(i)in the respondent’s possession, custody or control, or

(ii)expected to come into existence and then to be in the respondent’s possession, custody or control within 28 days of the order;

(c)explain the grounds for suspecting that the material—

(i)consists of or includes confidential material (or, if not yet in existence, will do so), but

(ii)does not (or will not) include items subject to legal privilege;

(d)explain the grounds for suspecting that—

(i)if the material is in existence, it is likely to be evidence that a relevant act has been, or is about to be, committed, or

(ii)it will be such evidence if the material is likely to come into existence and then to be in the respondent’s possession, custody or power within 28 days of the order;

(4) In each case the application must explain the grounds for believing that—

(a)the material is likely to be of substantial value, whether by itself or with other material, to the investigation; and

(b)it is in the public interest for the material to be produced, or for the applicant to be given access to it, having regard to—

(i)the benefit likely to accrue to the investigation if it is obtained, and

(ii)the circumstances in which the respondent has the material, or is expected to have it.

(5) In each case the applicant must propose—

(a)the terms of the order sought, and

(b)the period within which it should take effect.]

[Note. See paragraphs 5 to 9 of Schedule 5 to the Terrorism Act 2000 (1) [F2and paragraphs 3 to 7 of Schedule 2 to the National Security Act 2023]. The applicant for a production, etc. order [F3under Schedule 5 to the 2000 Act] must be an ‘appropriate officer’ as defined by paragraph 5(6) of that Schedule. Where the applicant is a counter-terrorism financial investigator the application must be for the purposes of an investigation relating to ‘terrorist property’ as defined by section 14 of the 2000 Act. Under paragraphs 5 and 7 of Schedule 5 to that Act a production order may require a specified person—

(a)to produce to an appropriate officer within a specified period for seizure and retention any material which that person has in his or her possession, custody or power and to which the application relates; to give an appropriate officer access to any such material within a specified period; and to state to the best of that person’s knowledge and belief the location of material to which the application relates if it is not in, and it will not come into, his or her possession, custody or power within the period specified; or

(b)where such material is expected to come into existence within the period of 28 days beginning with the date of the order, to notify a named appropriate officer as soon as is reasonably practicable after any material to which the application relates comes into that person’s possession, custody or power, and then to produce that material to an appropriate officer; to give an appropriate officer access to it; and to state to the best of that person’s knowledge and belief the location of material to which the application relates if it is not in, and it will not come into, his or her possession, custody or power within that period of 28 days.

[F4The applicant for a production, etc. order under Schedule 2 to the National Security Act 2023 must be a constable investigating the commission, or anticipated commission, of a relevant act. Under paragraphs 3 and 4 of Schedule 2 to the 2023 Act a production order may impose on a specified person a requirement to produce confidential material to a constable, or to identify the location of such material, or to notify a named constable of the receipt of such material, comparably with those of a requirement imposed under the 2000 Act, described above.

Under paragraph 17 of Schedule 2 to the 2023 Act, ‘confidential material’ means—

(a)material created or acquired for the purposes of journalism which is held in confidence or which the sender of that material to someone else intends the intended recipient to hold in confidence;

(b)items subject to legal privilege within the meaning of section 10 of the Police and Criminal Evidence Act 1984; and

(c)excluded material and special procedure material within the meaning of sections 11 and 14 of the Police and Criminal Evidence Act 1984, other than journalistic material.]

Under paragraph 4 of Schedule 5 to the 2000 Act, ‘legal privilege’, ‘excluded material’ and ‘special procedure material’ mean the same as under sections 10, 11 and 14 of the Police and Criminal Evidence Act 1984.

The period within which an order takes effect must be specified in the order and, unless the court otherwise directs, must be—

(a)where the respondent already has the material, 7 days from the date of the order; or

(b)where the respondent is expected to have the material within 28 days, 7 days from the date the respondent [F5gives notice] of its receipt.

F6....]

Textual Amendments

F2Words in rule 47.12 Note inserted (1.4.2024) by The Criminal Procedure (Amendment) Rules 2024 (S.I. 2024/62), rules 1, 12(f)(ii)

F4Words in rule 47.12 Note inserted (1.4.2024) by The Criminal Procedure (Amendment) Rules 2024 (S.I. 2024/62), rules 1, 12(f)(iv)

F5Words in rule 47.12 Note substituted (1.4.2024) by The Criminal Procedure (Amendment) Rules 2024 (S.I. 2024/62), rules 1, 12(f)(v)

(1)

2000 c. 11; paragraphs 5, 6 and 7 of Schedule 5 were amended by section 65 of, and paragraph 9 of Schedule 4 to, the Courts Act 2003 (c. 39) and section 41 of the Criminal Finances Act 2017 (c. 22).