Commentary on provisions of Act Section 4: Requirements for making of order
This section sets out requirements which must be satisfied before an overseas production order may be made.
	Under subsection (2), the judge considering an application must be satisfied that there are reasonable grounds for believing that the person against whom the order is sought, operates or is based in a country or territory which is outside the UK. The country or territory in which the person operates or is based must be party to an international co-operation arrangement with the UK which has been designated under section 1 (and which the person applying for the order is required to specify in the application by virtue of section 1(2)(a)). Subsection (8) sets out when a person is taken to be operating in or based in a country or territory outside the UK.
	Under subsection (3) the judge must also be satisfied that there are reasonable grounds for believing that an indictable offence has been committed, and that proceedings for that offence have already been commenced, or the offence is being investigated. Alternatively, the judge must be satisfied that the order is sought for the purposes of a terrorist investigation. This reflects the criteria which apply when a production order is sought under corresponding domestic legislation (see e.g. paragraph 6(2) of Schedule 5 to the Terrorism Act 2000).
	Under subsection (4), the judge must be satisfied that there are reasonable grounds for believing that the person against whom the order is sought has in their possession, or has in their control, all or part of the data being sought.
	Under subsection (5), the judge must be satisfied that there are reasonable grounds for believing that some or all of the data that is being applied for will be of substantial value to the investigation or proceedings.
	Under subsection (6), the judge must be satisfied that there are reasonable grounds for believing that all or part of the electronic data specified or described in an application for an overseas production order is likely to be relevant evidence in respect of the offence to which the application relates. "Relevant evidence" means anything that would be admissible in proceedings in respect of that offence. Proceedings in respect of an offence would include a person’s trial for that offence, but also other elements of the criminal process such as proceedings in relation to the making or enforcement of a confiscation order, where a person has been convicted of the offence. This relevant evidence requirement does not apply to orders sought for the purposes of a terrorist investigation, so as to reflect the domestic position under the Terrorism Act 2000.
	Under subsection (7), the judge must be satisfied that there are reasonable grounds for believing that it is in the public interest for all or part of the electronic data specified or described in the application to be produced. In considering whether something is in the public interest, the judge must consider the likely benefit to the proceedings or investigation if the electronic data is produced or made available, and also the circumstances under which the person who would be required to produce the data under the order has possession or control of it.
	The Secretary of State may specify further additional requirements (by way of regulations) that must be met in order for an overseas production order to be made (Section 4(1)(b)). Notwithstanding the existence of any additional requirements introduced by virtue of this provision (which may be specified to apply to all or to a category of applications), the requirements set out in subsections (2) to (7) will still have to be met in every case.