R v Southwark Crown Court, Ex parte Bowles (Bowles, Ex parte)

A production order under section 93H of the Criminal Justice Act 1988 may be sought only to investigate whether a person has benefited from criminal conduct, or the extent or whereabouts of its proceeds. It cannot be used principally to investigate whether an offence was committed or to obtain evidence for a prosecution.

Where authorised and unauthorised purposes coexist, the court must identify the application’s true and dominant purpose. An order remains available when investigation of criminal proceeds is dominant and obtaining evidence of an offence is merely incidental. This construction preserves the safeguards governing access to special procedure material under section 9 and Schedule 1 to the Police and Criminal Evidence Act 1984.

The police obtained a production order under section 93H of the Criminal Justice Act 1988 requiring an accountant to provide records relating to clients charged with dishonesty. She accepted that the police might obtain the material under section 9 and Schedule 1 to the Police and Criminal Evidence Act 1984, but challenged their use of section 93H.

The Divisional Court, reported at [1997] 2 WLR 936, set aside the order. It held that section 93H concerned investigation of criminal proceeds rather than investigation of the underlying offence, and questioned whether recovery of proceeds was the police’s predominant purpose.

The central issues were the statutory scope of section 93H and the test by which a circuit judge should identify the purpose of an application where criminal-investigation and proceeds-investigation purposes might coexist.

1. Appeal dismissed unanimously. Lord Hutton delivered the leading speech. Lord Goff of Chieveley, Lord Slynn of Hadley, Lord Steyn and Lord Clyde agreed with his reasons.
2. Per Lord Hutton, section 93H of the Criminal Justice Act 1988, read in the context of Part VI and the Proceeds of Crime Act 1995, concerns investigation of the proceeds of crime. Its purpose is to obtain information capable of supporting restraint or confiscation proceedings. It does not authorise an order whose purpose is to investigate whether an offence was committed or to obtain evidence for a prosecution. The statutory headings, the language of section 71(1A), and the distinction recognised by section 15(2) of the 1995 Act supported that construction.
3. The contrast with section 9 and Schedule 1 to the Police and Criminal Evidence Act 1984 was material. That regime expressly concerns criminal investigations and relevant evidence, and contains more stringent safeguards. These include an inter partes procedure, the serious-arrestable-offence requirement, a belief rather than suspicion threshold, and the requirement that other methods should have failed or appeared bound to fail. Parliament did not intend section 93H to remove those safeguards in investigations of acquisitive offences.
4. Per Lord Hutton, where potentially concurrent purposes require examination, the circuit judge must apply the established dominant-purpose test governing statutory powers. If investigation of criminal proceeds is the true and dominant purpose, an order may be made although obtaining evidence of an offence is an incidental consequence. If investigation and prosecution of an offence is the true and dominant purpose, the application must be refused. This test is not an additional condition imported into section 93H; it is the general legal means of determining whether a statutory power is being exercised for an authorised purpose.
5. Lord Hutton further considered that evidence of an offence discovered during an investigation conducted under a properly made section 93H order would not, merely because it was discovered in that way, fall to be excluded for unfairness under section 78 of the Police and Criminal Evidence Act 1984.

1. House of Lords: Dismissed the appeal unanimously and upheld the setting aside of the production order.
2. Divisional Court of the Queen’s Bench Division: On judicial review, set aside the Crown Court’s production order: [1997] 2 WLR 936.
3. Southwark Crown Court: Made a production order under section 93H of the Criminal Justice Act 1988, requiring the respondent accountant to provide records concerning her clients and their company.