Regina v Southwark Crown Court, Ex Parte Bowles (On Appeal From A Divisional Court of the Queen’s Bench Division): HL 7 Apr 1998

An application had been made for a production order under section 93H of the 1988 Act which was concerned with the recovery of the proceeds of criminal conduct. The issue was whether an order obtained for the purpose of assisting in the recovery of the proceeds of criminal conduct could be used also in relation to the investigation of prior criminal offences.
Held: Police were unable to use section 93(H) to further the investigation of a possible offence. The section was intended only to further the recovery of awards after a conviction.
Lord Hutton referred to the dominant purpose test which had been adopted by the Divisional Court and to the test contended for by the Director of Public Prosecutions which would have required the judge in the Crown Court to be satisfied that the police officer applying for the order ‘had the genuine purpose of investigating the proceeds of criminal conduct and that the application for the order was not a mere device in order to investigate the commission of an offence and to obtain evidence to support a prosecution’. He went on to say: ‘I would make two observations . . The first is that if the true construction of section 93H be the one which I have suggested, then I consider that in the great majority of cases the Circuit Judge will not be faced with a situation where it appears that the police are actuated both by the purpose of investigating the proceeds of criminal conduct and by the purpose of investigating the commission of an offence, and that the judge will only have to consider whether he is satisfied (in addition to the matter certified in section 93H(4)) that the purpose of the application is to investigate the proceeds of criminal conduct. Secondly, in my opinion the nature of the dominant purpose test is well stated in Wade and Forsyth on Administrative Law . . : ‘Sometimes an Act may serve two or more purposes, some authorised and some not, and it may be a question whether the public authority may kill two birds with one stone. The general rule is that its action will be lawful provided that the permitted purpose is the true and dominant purpose behind the Act, even though some secondary or incidental advantage may be gained for some purpose which is outside the authority’s powers. There is a clear distinction between this situation and its opposite where the permitted purpose is a mere pretext and a dominant purpose is ultra vires.’
In those cases where consideration may have to be given to the distinction between the two purposes, or where it may appear that the two purposes may co-exist (an example being where the police wish to investigate a case of living on the earnings of a prostitute), I think that there will be little practical difference between applying the test adopted by Simon Brown LJ and applying the test propounded [counsel for the Director of Public Prosecutions], but if a difference were to result, I consider it to be clear that the dominant purpose test is the appropriate one to apply.’


Hutton L


Times 07-Apr-1998, Gazette 07-May-1998, [1998] UKHL 16, [1999] Crim LR 220, [1998] 2 All ER 193, [1998] 2 WLR 715, [1998] AC 641


House of Lords, Bailii


Criminal Justice Act 1988 93(H)


England and Wales


Appeal fromRegina v Guildford Crown Court, Ex Parte Director of Public Prosecutions; Regina v Southwark Crown Court, Ex Parte Bowles QBD 29-Oct-1996
The claimant objected to the use by the respondent of orders under the 1988 Act to produce records for investigation and tracing proceeds.
Held: Simon Brown LJ said: ‘In my judgment, therefore, it would be wrong to construe the words in . .

Cited by:

CitedPearce and Another, Regina (on The Application of) v Commissioner of Police of The Metropolis and Another CA 18-Jul-2013
The appellants challenged rejection of their complaints that actions of police officers searching their ‘squats’ when executing search warrants, were unlawful in that they had been intended not as descrbed for the search for stolen goods, but rather . .
CitedMiranda v Secretary of State for The Home Department and Others Admn 19-Feb-2014
The claimant alleged that his detention by the police and the removal from him of encrypted computer storage devices purporting to use powers under the 2000 Act. He and his journalist partner had received and published materials said to be of . .
CitedMiranda, Regina (on The Application of) v Secretary of State for The Home Department and Others CA 19-Jan-2016
The claimant had been stopped at Heathrow by the defendant’s officers, and an encrypted data device had been taken from him using powers derived from the 2000 Act. The device was thought to contain material taken from the US NSA security service. He . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Police, Administrative

Updated: 19 May 2022; Ref: scu.88677