Prosecutors and law enforcement agencies in the Cayman Islands have access to a range of investigative tools under the Proceeds of Crime Act (2020 Revision) (“POCA”), Part VI.
Such powers include production orders, search and seizure warrants, disclosure orders, customer information orders and account monitoring orders.
This short guide, which forms part of McGrath Tonner’s financial crime and anti-money laundering series, focusses on production orders only.
Law enforcement agencies can apply to the Cayman Islands Grand Court for a production order under sections 149 – 155 of POCA in support of three types of investigation:
a) a criminal money laundering investigation;
b) a confiscation investigation; and/or
c) a civil recovery investigation
A production order requires a specified person, that appears to be in possession or control of relevant material, to produce the material to an appropriate officer (such as a police constable or a customs officer or a person employed in the Financial Reporting Authority for the purpose of receiving reports under POCA).
Production orders can be made against authorised government departments (section 154) as well as private persons and corporations.
Before a production order is granted, a judge of the Grand Court must be satisfied that (section 150):
(a) there are reasonable grounds for suspecting that –
(i) in the case of a confiscation investigation, the person whom the application for the order specifies as being subject to the investigation has benefitted from that person’s criminal conduct;
(ii) in the case of a civil recovery investigation, the property which the application for the order specifies as being subject to the investigation is recoverable property or associated property;
(iii) in the case of a money laundering investigation, the person whom the application for the order specifies as being subject to the investigation has committed a money laundering offence.
(b) there are reasonable grounds for believing that the person whom the application specifies as appearing to be in possession or control of the material so specified is in possession or control of it;
(c) there are reasonable grounds for believing that the material is likely to be of substantial value (whether or not by itself) to the investigation for the purposes of which the order is sought; and
(d) there are reasonable grounds for believing that it is in the public interest for the material to be produced or for access to it to be given, having regard to-
(i) the benefit likely to accrue to the investigation if the material is obtained; and
(ii) the circumstances under which the person whom the application specifies as appearing to be in possession or control of the material holds it.
An “order to grant entry” can also be granted by a court allowing an appropriate officer access to material on any premises (section 151).
Access to computer material must be provided in a form which is visible and legible (section 153). An appropriate officer may take copies of any material that is produced, or to which access is given. Material may be retained for as long as it is necessary to do so in connection with the investigation, which may be until any court proceedings are concluded (section 152 (4)).
An application for a production or entry order will be made ex parte to a judge in chambers (section 155(1)). The officer making the application will normally be assisted by a prosecution advocate from the Office of the Director of Public Prosecutions.
In contrast to the English Criminal Procedure Rules, the Cayman Islands Criminal Procedure Rules do not contain guidance on the process by which an application may be made or resisted. Some practical assistance may be derived by referring to the English CPR and the Code of Practice Issued Under the Proceeds of Crime Act 2002. There is also a body of local and English case law governing such applications however such detail is beyond the scope of this note.
Any application to discharge or vary the production or entry order may be made to the court by the person who applied for the order or by any person affected by the order (section 155(3)).
A period of 7 days is normally given for compliance, therefore there exists an opportunity for an affected person to apply to court for relief prior to production. Challenges to the order may be brought, inter alia, on procedural grounds (failure of the applicant to comply with its duty of full and frank disclosure at the ex parte hearing), in relation to the limits of the court’s powers (for example, jurisdictional issues), on the merits (challenging the existence of “reasonable grounds”) and/or by seeking to narrow the scope of the documents to be produced.
It should also be noted that a production order does not require a person to produce or give access to privileged material, including material to which legal professional privilege applies or excluded material (section 152).
It is important to note that it is a criminal offence to prejudice an investigation (section 147) and, as such, care should be taken when reacting to a production order. Causing or permitting interference with a confiscation investigation, money laundering investigation or civil recovery investigation renders one liable to prosecution and, upon conviction on indictment, imprisonment for a term of five years or to a fine, or to both.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.