The UK and US white-collar crime teams have again authored the chapter Production of Information to the Authorities in the sixth and latest edition of Global Investigations Review – The Practitioner’s Guide to Global Investigations.

Information requests from regulators continue to raise a host of complex legal and practical issues for entities and individuals. The chapter sets out the key considerations around the production of information to UK and US regulators, including information-gathering powers, privilege issues and increased global data sharing. Key updates for 2022 include:

No extra-territorial effect of section 2 of the CJA 

In February 2021, the UK’s Supreme Court ruled that section 2 of the Criminal Justice Act 1987 does not have extra-territorial effect[1]. This long-awaited and important decision confirms that UK authorities cannot compel a foreign company that does not carry on business in the UK to produce documents held outside of the UK and it remains the case that they will have to obtain documents via mutual legal assistance (MLA). This is discussed in greater detail in our chapter.

ICO guidance

Considering the privilege position at the outset of any investigation, and documenting any decision made, is perhaps made more important in light of recent draft statutory guidance published by the Information Commissioner’s Office (ICO) on 1 October 2020 which has made reference to the fact that the ICO may require access to privileged communications unrelated to data protection legislation in certain circumstances. Until this guidance has been approved by Parliament and put in practice, it remains to be seen whether there will be a significant departure from the ICO’s current approach to privileged communications.

Pensions regulator

The Pension Schemes Act 2021 has introduced new information-gathering powers. It enables the Pensions Regulator to require by notice in writing a person likely to hold information relevant to the exercise of the regulator’s powers to attend an interview before the regulator[2]. Failure to attend the interview or to answer questions, without a reasonable excuse, is a criminal offence[3]. This new power is enforceable by a series of escalating fines of up to £10,000 a day[4].

Brexit and MLA

Following the end of the transition period on 31 December 2020, the UK is no longer party to the reciprocal and MLA provisions contained in EU law. Requests for MLA between the member states of the EU and the United Kingdom are now based on cooperation through the Council of Europe 1959 Convention on Mutual Assistance in Criminal Matters and its two additional protocols, as supplemented by provisions agreed in Title VIII of the EU-UK Trade and Cooperation Agreement.

US regulators: privilege

If a company is producing documents voluntarily in the US, the company should pay considerable attention to potential disclosure of privileged information, as discussed in more detail in the chapter.  Courts have held that the voluntary submission of privileged materials waives privilege in the US, whereas a submission made under compulsion does not.[5]  In assessing whether the disclosure of privileged documents to regulators was compelled, courts consider a number of factors, as set out in the chapter.

The full publication is available here.

[1] R (KBR, Inc) v Director of the Serious Fraud Office [2021] UKSC

[2] Section 72A(1) Pensions Act 2004

[3] Section 77(1A) Pensions Act 2004

[4] Section 77A Pensions Act 2004

[5] See, In re Vitamin Antitrust Litig., 2002 WL 35021999, at *28 (D.D.C. Jan. 23, 2002).