R v Southwark Crown Court, ex parte Bowles
Jurisdiction | UK Non-devolved |
Judge | LORD GOFF OF CHIEVELEY,LORD SLYNN OF HADLEY,LORD STEYN,LORD CLYDE,LORD HUTTON |
Judgment Date | 02 April 1998 |
Judgment citation (vLex) | [1998] UKHL J0402-4 |
Date | 02 April 1998 |
Court | House of Lords |
(On Appeal from a Divisional Court of the Queen's Bench Division)
[1998] UKHL J0402-4
Lord Goff of Chieveley
Lord Slynn of Hadley
Lord Steyn
Lord Clyde
Lord Hutton
HOUSE OF LORDS
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hutton. For the reasons he gives I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hutton. For the reasons he gives I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hutton. For the reasons he gives I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hutton. For the reasons he gives I too would dismiss this appeal.
My Lords,
This appeal concerns the relationship between section 93(H) of the Criminal Justice Act 1988 and section 9 of, and Schedule 1 to, the Police and Criminal Evidence Act 1984 ("PACE") and the purpose for which the police may obtain an order under the former section.
The background
Mrs. Karen Bowles is an accountant. Amongst her clients were a Mr. and Mrs. Peaty who ran a company, Associate Business Management Ltd. ("ABM"). Mr. and Mrs. Peaty faced charges of dishonesty connected with the running of ABM The essence of these charges was that ABM purported to be a management consultancy business which recruited redundant executives on payment of a joining fee of £7,500 in return for an assurance by ABM of an income from existing clients of the company of between £25,000-£40,000 per annum, but the executives who joined this scheme received no income. It was further alleged that ABM had received a sum in excess of £750,000 from the joining fees and that the bulk of this sum had been used for the personal and private benefit of Mr. and Mrs. Peaty. Since 1991 ABM's accounts had been prepared by Mrs. Bowles. It was alleged that these accounts failed to account properly for either the income or the expenditure of the company and that information supplied by the company to Mrs. Bowles had been either bogus or misleading.
The police applied to the circuit judge sitting at the Crown Court at Southwark for a production order against Mrs. Bowles under section 93H of the Criminal Justice Act 1988, and on 29 March 1996 His Honour Judge Jackson made a production order against Mrs. Bowles requiring that she:
"should give a constable access to and supply such originals and copies as may be necessary of the material to which the application relates, namely all files, documents and accounts and other records used in the ordinary course of business (howsoever recorded) … paid cheques, inter-account transfers, telegraphic transfers and correspondence … in relation to her dealings with ABM and any other material relating to [Mr. or Mrs.] Peaty.1"
Mrs. Bowles has at all times behaved with the utmost priority. She was anxious to cooperate with the authorities but she was advised by her lawyers that, although the police were entitled to the material which she held relating to the affairs of ABM, that entitlement arose under section 9 of PACE and not under section 93H of the Act of 1988. Accordingly Mrs. Bowles brought an application for judicial review to quash the production order, and on 17 October 1996 the Divisional Court made an order setting aside the order of the circuit judge.
The relevant statutory provisions
Part VI of the Criminal Justice Act 1988 contains provisions which empower the courts to confiscate from convicted persons in certain criminal cases the proceeds of offences committed by them and to make restraint orders prohibiting persons from dealing with property which may be the subject of a confiscation order.
Section 93H was inserted in Part VI of the Criminal Justice Act 1988 by section 11 of the Proceeds of Crime Act 1995. The material parts of section 93H are as follows:
"(1) A constable may, for the purposes of an investigation into whether any person has benefited from any criminal conduct or into the extent or whereabouts of the proceeds of any criminal conduct, apply to a Circuit judge for an order under subsection (2) below in relation to particular material or material of a particular description.
(2) If, on such an application, the judge is satisfied that the conditions in subsection (4) below are fulfilled, he may make an order that the person who appears to him to be in possession of the material to which the application relates shall -
(a) produce it to a constable for him to take away, or
(b) give a constable access to it,
within such period as the order may specify.
This subsection has effect subject to section 93J(11) below.
(3) The period to be specified in an order under subsection (2) above shall be seven days unless it appears to the judge that a longer or shorter period would be appropriate in the particular circumstances of the application.
(4) The conditions referred to in subsection (2) above are -
(a) that there are reasonable grounds for suspecting that a specified person has benefited from any criminal conduct;
(b) that there are reasonable grounds for suspecting that the material to which the application relates -
(i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purposes of which the application is made; and
(ii) does not consist of or include items subject to legal privilege or excluded material; and
(c) that there are reasonable grounds for believing that it is in the public interest, having regard -
(i) to the benefit likely to accrue to the investigation if the material is obtained, and
(ii) to the circumstances under which the person in possession of the material holds it,
that the material should be produced or that access to it should be given.
(5) Where the judge makes an order under subsection (2)(b) above in relation to material on any premises he may, on the application of a constable, order any person who appears to him to be entitled to grant entry to the premises to allow a constable to enter the premises to obtain access to the material.
(6) An application under subsection ( 1) or (5) above may be made ex parte to a judge in chambers.
(7) Provision may be made by Crown Court Rules as to -
(a) the discharge and variation of orders under this section; and
(b) proceedings relating to such orders.
…
(12) In this section -
(a) 'excluded material', 'items subject to legal privilege' and 'premises' have the same meanings as in the Police and Criminal Evidence Act 1984; and
(b) references to a person benefiting from any criminal conduct, in relation to conduct which is not an offence to which this Part of this Act applies but would be if it had occurred in England and Wales, shall be construed in accordance with section 71(4) and (5) above as if it had so occurred."
Section 9(1) of PACE provides:
"A constable may obtain access to excluded material or special procedure material for the purposes of a criminal investigation by making an application under Schedule 1 below and in accordance with that Schedule."
Section 14 of PACE provides:
"(1) In this Act 'special procedure material' means -
(a) material to which subsection (2) below applies; …
(2) Subject to the following provisions of this section, this subsection applies to material, other than items subject to legal privilege and excluded material, in the possession of a person who -
(a) acquired or created it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office; and
(b) holds it subject -
(i) to an express or implied undertaking to hold it in confidence; …"
The material parts of Schedule 1 to PACE are as follows:
"1. If on an application made by a constable a circuit judge is satisfied that one or other of the sets of access conditions is fulfilled, he may make an order under paragraph 4 below.
2. The first set of access conditions is fulfilled if -
(a) there are reasonable grounds for believing -
(i) that a serious arrestable offence has been committed;
(ii) that there is material which consists of special procedure material or includes special procedure material and does not also include excluded material on premises specified in the application;
(iii) that the material is likely to be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and
(iv) that the material is likely to be relevant evidence;
(b) other methods of obtaining the material -
(i) have been tried without success; or
(ii) have not been tried because it appeared that they were bound to fail; and
(c) it is in the public interest, having regard -
(i) to the benefit likely to accrue to the investigation if the material is obtained; and
(ii) to the circumstances under which the person in possession of the material holds, it, that the material should be produced or that access to it should be given.
3. The second set of access conditions is fulfilled if -
(a) there are reasonable grounds for believing that there is material which consists of or includes excluded material or special procedure material on premises specified in the application;
(b) but for section 9(2) above a search of the premises for that material could have been authorised by the issue of a warrant to a constable under an enactment other than this Schedule; and
(c) the issue of such a warrant would have...
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