“REASONABLE EXCUSE”: WHEN CAN A PERSON LAWFULLY WITHHOLD DOCUMENTS ON RECEIPT OF A COMPULSORY PRODUCTION NOTICE IN A CRIMINAL INVESTIGATION?

A post from Corker Bining on 5 November is concerned with situations where a person does not destroy documents, but rather refuses to provide documents when compelled to do so in a criminal investigation – are there general principles that determine when the recipient of a compulsory production notice can lawfully withhold the documents sought?  It is not a reasonable excuse to withhold documents on the basis that they incriminate (or might incriminate) a person, and it would  be an extraordinarily unusual case in which the recipient of a notice can lawfully withhold documents by asserting the privilege against self-incrimination.  What might be reasonable excuse –

  1. The first (and easiest) category of “reasonable excuse” to identify is legal professional privilege (LPP);
  2. Overseas persons who receive a notice compelling the production of documents held outside the UK where the person has “insufficient connection” to the jurisdiction;
  3. Where the notice identifies vast swathes of irrelevant documents and/or is so onerous that it would be impossible to collate the documents in a reasonable timeframe;
  4. Where the disclosure of documents to the investigator would breach other legal duties and/or compete with countervailing public policy considerations; and
  5. (Possibly) where compliance with the notice would necessarily involve the commission of a criminal offence. 

The post highlights the potential use and problems with each of the above.

https://www.corkerbinning.com/reasonable-excuse-withhold-documents-receipt-compulsory-production-notice-criminal-investigation/

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Author: raytodd2017

Chartered Legal Executive and former senior manager with Isle of Man Customs and Excise, where I was (amongst other things) Sanctions Officer (for UN/EU sanctions), Export Licensing Officer and Manager of the Legal-Library & Collectorate Support Section

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