Regina v Southwark Crown Court, Ex parte Bowles

The House of Lords held that section 93H of the Criminal Justice Act 1988, as inserted by the Proceeds of Crime Act 1995, authorises production orders for the purpose of investigating the proceeds of criminal conduct (whether any person has benefited from criminal conduct or the extent or whereabouts of such proceeds) and not for the dominant purpose of investigating whether a criminal offence has been committed. The court contrasted section 93H with section 9 and Schedule 1 to the Police and Criminal Evidence Act 1984 (PACE), noting the more stringent safeguards in PACE. Where the purpose of a section 93H application is contested, a circuit judge must decide the matter by applying the ordinary "dominant purpose" test: if the true and dominant purpose is to investigate the proceeds of criminal conduct the order may be made, but if the dominant purpose is to investigate the commission of an offence the order must be refused.

Background and facts: Mrs Karen Bowles, an accountant, prepared the accounts of Associate Business Management Ltd (ABM). Mr and Mrs Peaty, connected with ABM, faced allegations that ABM obtained substantial joining fees from recruits but did not deliver the promised income. The police applied under section 93H of the Criminal Justice Act 1988 for a production order requiring Mrs Bowles to produce ABM documents; the Crown Court judge made the order.

Procedural posture: Mrs Bowles sought judicial review and the Divisional Court set aside the production order. The Director of Public Prosecutions appealed to the House of Lords.

Nature of the application: An application for judicial review to quash a production order made under section 93H of the Criminal Justice Act 1988.

Issues framed by the court: (i) whether section 93H is confined to investigations into the proceeds of criminal conduct (for the purpose of restraint or confiscation) or whether it also permits orders for the purpose of investigating the commission of offences; (ii) if section 93H is so confined, what test a circuit judge should apply to determine the purpose for which an application is made (the court asked whether the "dominant purpose" test should be imported).

Reasoning and decision: The House of Lords held that, on its proper construction in context, section 93H is concerned with investigations into the proceeds of criminal conduct and is not intended to replace the access provisions of PACE for the purpose of investigating offences. The court relied on the statutory context (Part VI heading, the Proceeds of Crime Act 1995 long title and related provisions), and on contrasts with the wording and safeguards in section 9 and Schedule 1 to PACE. The House accepted the Divisional Court's concern that the PACE scheme affords stronger safeguards and that Parliament did not intend section 93H to circumvent those safeguards. Where the purpose of an application is in issue the appropriate legal test is the ordinary "dominant purpose" test for statutory powers: an order under section 93H is lawful if the true dominant purpose is to investigate proceeds, even if incidental evidence relevant to offences is obtained; but where the dominant purpose is to investigate the commission of offences, an order under section 93H should be refused. The House dismissed the appeal.

Appeal dismissed. The House held that section 93H of the Criminal Justice Act 1988 is directed to investigations into the proceeds of criminal conduct (to assist restraint or confiscation proceedings) and not to the investigation of whether a crime has been committed; where the purpose is disputed a circuit judge should apply the ordinary dominant purpose test to decide whether the application is for a permitted purpose.

Appeal to the House of Lords from the Divisional Court of the Queen's Bench Division which had set aside a production order made by a circuit judge; Divisional Court decision reported at [1997] 2 W.L.R. 936.