IpsofactoJ.com: International Cases [2001] Part 9 Case 12 [HL]


HOUSE OF LORDS

Coram

Giles J. Forbes

- vs -

Regina

LORD SLYNN OF HADLEY

LORD STEYN

LORD HOPE OF CRAIGHEAD

LORD CLYDE

LORD HUTTON

19 JULY 2001


Judgment

Lord Slynn of Hadley

My Lords,

  1. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hutton. I gratefully refer to his recital of the facts, of the relevant statutory provisions and the proceedings at the trial and I do not repeat them.

  2. The puzzlement of the jury, indicated by their questions, the obvious problem the trial judge had in directing the jury and the fact that your Lordships find the questions certified by the Court of Appeal to be misconceived, only serve to illustrate the difficulties involved in defining the task of the prosecution in cases of this kind.

  3. One of the problems arises from the fact that in relation to material of this kind there are, as the appellant has stressed, three different categories

    1. obscene publications contrary to section 1 of the Obscene Publications Act 1959,

    2. an indecent photograph of a child under the age of sixteen contrary to section 1 of the Protection of Children Act 1978 and

    3. other indecent photographs which fall within the terms of section 42 of the Customs Consolidation Act 1876, but which if they come from another Member State of the European Union cannot be the subject matter of a charge of unlawful importation since they can be sold lawfully in the United Kingdom (Conegate Ltd v HM Customs and Excise (Case 121/85) [1987] QB 254). Per contra if they come from outside the Union.

  4. If the charge here were that the defendant was knowingly concerned in the importation of indecent photographs of children it seems plain that the prosecution would have to prove that the photographs were of children and that he knew that they were of children. It is really on the basis that that is the charge that the appellant's argument in part proceeds. But that is not the charge. The substance of the charge is that he was "in any way knowingly concerned in any fraudulent evasion .... of any prohibition".... on the importation of goods under section 42 of the Customs Consolidation Act 1876.

  5. In R. v Hussain [1969] 2 QB 567, 572A Lord Widgery LJ stressed that the relevant question is whether the accused knows

    that what is on foot is the evasion of a prohibition against importation and he knowingly takes part in that operation, .... even if he does not know precisely what kind of goods are being imported. It is, of course, essential that he should know that the goods which are being imported are goods subject to a prohibition. It is essential he should know that the operation with which he is concerning himself is an operation designed to evade that prohibition and evade it fraudulently.

  6. The correctness of that decision was accepted in R v Hennessey (1978) 68 Cr App R 419, 423 where Lawton LJ said:

    It matters not for the purpose of conviction what the goods were as long as he knew that he was bringing into the United Kingdom goods which he should not have been bringing in.

  7. The decision in R v Hussain was also approved by the House of Lords in R v Taaffe [1984] AC 539, 547 and in R v Shivpuri [1987] AC 1.

  8. The decision in R v Taaffe [1984] AC 539 also accepted that for the purpose of section 170 (2) of the 1979 Act a defendant must be judged on the facts as he believed them to be, such matter being an integral part of the inquiry as to whether he was knowingly concerned in a fraudulent evasion of a prohibition on importation.

  9. In the present case the judge gave a direction in accordance with R v Hussain. He told the jury that the prosecution had to prove that the defendant knew that what he was bringing in was prohibited material but that it was not necessary for the prosecution to prove that the defendant knew what the prohibited material was. The prosecution had to prove that

    the defendant knew that the goods which were being imported and 'the goods', of course, are these parts of the video in the middle are subject to a prohibition. But the Crown do not have to go on to prove that he knew the precise category of goods that were imported.

  10. There can be no doubt that the jury by their verdict even if by eleven to one was satisfied in the present case that the defendant knew that he was bringing in prohibited material and that his behaviour showed that this was part of a fraudulent evasion of a prohibition.

  11. It follows in my opinion that this appeal must be dismissed.

    Lord Steyn

    My Lords,

  12. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Hutton. For the reasons they give I would also dismiss the appeal.

    Lord Hope of Craighead

    My Lords,

  13. For the good of the country and the health and safety of its inhabitants the importation into the United Kingdom of a wide variety of goods is restricted or prohibited. The categories of prohibited goods include such things as flick knives: Restriction of Offensive Weapons Act 1961, section 1; goat hair infected or likely to be infected by anthrax: Anthrax Prevention Order 1971 (SI 1971/1234); plants and agricultural products which may lead to the introduction into Great Britain of pests: Plant Health Act 1967, section 2; animals, animal carcases and feeding stuffs, the importation of which may introduce disease in people and in animals: Diseases of Animals Act 1950, sections 24-33 and 35; indecent or obscene prints, photographs or other articles: Customs Consolidation Act 1876, section 42; and controlled drugs: Misuse of Drugs Act 1971, section 3.

  14. Some of the prohibitions and restrictions in the older law have had to be modified in order to render them compatible with the principles of European Community Law. The importation of goods from other member states must be permitted unless their supply would be unlawful under domestic law: R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Noncyp Ltd [1990] 1 QB 123. But these prohibitions and restrictions continue to apply with regard to the importation of goods from countries outside the European Union.

  15. It is plain that the prohibitions and restrictions would be ineffective unless they were backed up by criminal sanctions in the event of any breach. Their evasion would put at risk the benefits which they were designed to achieve. Human nature being what it is, there are bound to be those who with a view to profit or for other ill-founded motives will seek to evade them. There is a market for prohibited goods in this country, such as obscene material and controlled drugs, which some individuals are determined to exploit. Others may seek to import the goods for their own use despite, or perhaps even because of, the risk of harm to the wider community. Those involved may include organised gangs or syndicates, and they may go to great lengths to achieve their aims. They commonly resort to the use of couriers, to whom the minimum of information is given to reduce the risk of detection and of tracing the goods back to their source. Sophisticated means of concealment may be employed to ensure that the true nature of the goods is known only to those at each end of the importation process.

  16. The provision which reinforces these prohibitions and restrictions by subjecting their evasion to a criminal sanction is to be found in section 170(2) of the Customs and Excise Management Act 1979, as amended by section 114(1) of the Police and Criminal Evidence Act 1984, which provides:

    (2)

    Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion -

    ....

    (b)

    of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment;

    ....

    he shall be guilty of an offence under this section and may be arrested.

  17. This provision extends to all cases involving the evasion or attempted evasion of a prohibition or restriction. It requires proof by the prosecutor of two things. First he must prove that the goods in question were the subject of a prohibition or restriction under or by virtue of any enactment which was in force at the time of the evasion or attempt at evasion. This is an essential element in any prosecution, but its proof in many cases is likely to be a formality. In the present case the fact that the video cassettes contained indecent photographs of children, which is prohibited indecent material, was agreed between the defendant and the prosecutor. The second thing which the prosecutor must prove is that the defendant was knowingly concerned in a fraudulent evasion or attempt at evasion of the prohibition or restriction. The question which has been raised by this case is whether it is sufficient for the prosecutor to prove that the defendant knew that the activity in which he was engaged was the evasion of a prohibition or restriction, or whether he must go further and prove that the defendant knew what the goods were.

  18. The first of the two certified questions asks whether it was sufficient for the Crown to prove that the defendant knew he was importing an indecent photograph or must it be proved also that he knew that it was a photograph of a child. The question is framed in this way because, while section 42 of the Customs Consolidation Act 1876 provides that the importation of all indecent or obscene photographs is prohibited, that prohibition does not extend to the importation from another member state of the EU of photographs which are neither obscene nor indecent photographs of children. The supply of indecent photographs of adults is not unlawful in this country. Compatibility of the prohibition with Community law requires that it does not extend to the importation of such photographs from another member state - in this case, the Netherlands.

  19. But behind this question there is another and logically prior question. For over thirty years it has been the law in this country that, if the defendant knows that what is on foot is the evasion of a prohibition or restriction and he knowingly takes part in that operation, that is sufficient to justify his conviction even if he does not know precisely what kind of goods are being imported. This proposition, which is to be found in Halsbury's Laws of England, vol 12, 4th ed (1975) para 642, note 2, is attributed to R v Hussain [1969] 2 QB 567. If it is sound, the certified questions are misconceived. This is because it is not necessary, for the purposes of a prosecution under section 170(2)(b) of the Customs and Excise Management Act 1979, for the prosecutor to prove that the defendant knew the identity of the goods which were the subject of the prohibition which he was evading or attempting to evade. It is sufficient for him to prove that the defendant knew that the goods, whatever they happened to be, were the subject of a prohibition and that he also knew that the operation on which he was engaged was an evasion of that prohibition. If that is right, the question whether the defendant knew that the photographs which were the subject of the operation were indecent photographs of children does not arise. The prosecutor does not even need to go so far as to prove that the defendant knew that the goods were photographs.

  20. R v Hussain [1969] 2 QB 567 was a case which concerned the evasion of a prohibition on the importation of controlled drugs. But it is nevertheless instructive as to the extent of and justification for the proposition which it contains. The facts of the case were these. A vessel on which the defendant had been serving as a merchant seaman was searched on its arrival at Liverpool. When the bulkhead of his cabin was removed a number of concealed packages were found behind it which contained cannabis resin. His defence was that a senior member of the crew had entered his cabin during the voyage accompanied by the carpenter who had with him a bucket containing ten packages. They hid these packages behind the bulkhead, threatened to cut his throat if he said anything to anyone about it and promised him a reward if he kept silent. At the trial the jury were directed that it was enough for the Crown to prove that the defendant knew that he was co-operating with smugglers and that it did not matter if he did not know precisely the nature of the goods that they were dealing with. What had to be proved was that he was knowingly, and to that extent consciously and deliberately, concerned in co-operating in what he must have known was an operation of getting prohibited goods into this country.

  21. The Court of Appeal rejected the submission that this was a misdirection. The judgment of the court was given by Widgery LJ, who said, at pp 571, 572:

    It seems perfectly clear that the word 'knowingly' in section 304 (b) [of the Customs and Excise Act 1952, which was repealed and replaced by section 170(2)(b) of the 1979 Act] is concerned with knowing that a fraudulent evasion of a prohibition in respect of goods is taking place. If, therefore, the accused knows that what is on foot is the evasion of a prohibition against importation and he knowingly takes part in that operation, it is sufficient to justify his conviction, even if he does not know precisely what kind of goods are being imported. It is, of course, essential that he should know that the goods which are being imported are goods subject to a prohibition. It is essential he should know that the operation with which he is concerning himself is an operation designed to evade that prohibition and evade it fraudulently. But it is not necessary that he should know the precise category of the goods the importation of which has been prohibited.

  22. That passage should be read in the light of the argument which was presented to the court. For the appellant it was submitted that the prosecution must prove that the accused knew he was concerned with a prohibited or restricted substance, as against one which merely involved the payment of duty. For the Crown it was submitted that it was not necessary to prove that the accused knew the precise nature of the goods being imported. It was sufficient for the prosecutor to prove that the accused knew that the operation in which he was taking part involved the fraudulent evasion of some kind of prohibition against importation. The point was made that persons involved in operations of this kind frequently do not know the precise nature of the goods involved, and that Parliament cannot have intended that there should be a defence on these grounds.

  23. The point of law which was established by the decision of the Court of Appeal in that case was expressed in terms which are of general application to all prosecutions brought under section 170(2)(b) of the 1979 Act. It is not possible logically to separate out one category of prohibited goods from the others - indecent photographs, for example, as is being suggested in this case - and say that a different rule should be applied to them. There are only two positions that can logically be adopted. One is to say that the Crown must prove that the defendant knew that the operation on which he was engaged involved prohibited goods because he knew what the goods were and that they were prohibited goods. The other is to say that the Crown must prove that the defendant knew that the operation on which he was engaged involved goods which were prohibited because he knew that the operation was designed to avoid a prohibition against the importation of those goods.

  24. The justification for the adoption of the latter position by the Court of Appeal was that to adopt the former position would rob the provision of its effect in those cases, which in this field are likely to be many, which Parliament must have intended to be caught by it. These are cases where the defendant did not know and could not have known what the goods were, because he was merely a courier employed to lend his assistance to those who were engaged in the operation as principals. Nevertheless he was knowingly concerned in the evasion because he was well aware from the nature of the operation that its purpose was to evade a prohibition relating to those goods.

  25. The law as laid down in R v Hussain has not been questioned judicially for over 30 years. It was applied in R v Hennessey (1978) 68 Cr App R 419, which was another case involving the fraudulent evasion of the prohibition against the importation of controlled drugs. The trial judge directed the jury in these terms:

    'Knowingly' in this section of this statute is concerned with knowing that a fraudulent evasion of a prohibition in respect of goods is taking place. It is not a question of knowing whether you have got a particular commodity in your pocket or container or car and there is quite a considerable amount of legal authority for that proposition. If, therefore, an accused person knows that what is afoot is the evasion of a prohibition against importation and he knowingly takes part in that operation, it is sufficient to justify his conviction under this section of the Act, even if he does not know precisely what kind of goods are being imported.

  26. The defendant appealed against his conviction. He submitted that the judge should have directed the jury that the prosecution had to prove that the accused knew what was the subject of the prohibition and that the court had been wrong to reject that submission in R v Hussain. This argument was rejected by the Court of Appeal. Lawton LJ, who delivered the judgment of the court, said of the decision in Hussain's case:

    We intend to follow it for the best of reasons - it was correctly decided. On his own story Hennessey did know that he was concerned in a fraudulent evasion of a prohibition in relation to goods. In plain English he was smuggling goods. It matters not for the purpose of conviction what the goods were as long as he knew that he was bringing into the United Kingdom goods which he should not have been bringing in.

    Here again the extent of the proposition which was being approved in that case is significant. It is knowledge of the nature and purpose of the operation which has to be proved, not knowledge of what the goods were which were being brought in to this country.

  27. In R v Taaffe [1983] 1 WLR 627, 630 Lord Lane CJ referred to the decisions in House of Lords R v Hussain and R v Hennessey without disapproval, and in same case in the House of Lords [1984] AC 539, 547A-B Lord Scarman said that there could be no doubt that R v Hussain was rightly decided. R v Hussain was approved again in R v Shivpuri [1987] AC 1. Lord Bridge of Harwich said, at p 14G-H, that, in using the words "they need not know precisely what the prohibited goods were, as long as they knew they were prohibited," the judge in that case had expounded the law to the jury exactly as it was laid down by the Court of Appeal in R v Hussain. He said [1987] AC 1, 17:

    Irrespective of the different penalties attached to offences in connection with the importation of different categories of prohibited goods, R v Hussain established that the only mens rea necessary for proof of any such offence was knowledge that the goods were subject to a prohibition on importation.

  28. In R v Taaffe [1984] AC 539 the defendant was charged with having been knowingly concerned in the fraudulent evasion of the prohibition on the importation of cannabis resin. His defence was that he had been enlisted by a third party to import the substance in fraudulent evasion of a prohibition on its importation into this country but that he believed the substance to be currency which, contrary to his belief, was not subject to any prohibition on importation. The recorder ruled that he would be obliged to direct the jury that, even upon the defendant's version of events, they would be obliged to convict, whereupon he pled guilty. His appeal against his conviction was allowed by the Court of Appeal on the ground that, while it was not essential for a conviction for the Crown to prove that the defendant knew the precise nature of the goods that were being imported, he was to be judged on the facts as he believed them to be. In the House of Lords [1984] AC 539, 546H Lord Scarman said that he agreed with that construction of section 170(2) of the 1979 Act, adding that the principle that a man must be judged upon the facts as he believed them to be was an accepted principle of the criminal law when the state of a man's mind and his knowledge are ingredients of the offence with which he is charged.

  29. In the present case the appellant's defence was based on the decision in R v Taaffe. He said that he did not know that the video cassettes contained indecent photographs of children. His explanation for his highly suspicious behaviour at Amsterdam Airport was that he believed that the video cassettes contained the films "The Exorcist" and "Kidz" and that these films were, contrary to the fact, prohibited in the United Kingdom. The trial judge left it to the jury to decide whether they believed the appellant's explanation. He made it clear that they should judge the appellant's knowledge of the facts as he believed them to be, and that unless they were sure that his defence was untrue they should find him not guilty. Plainly they did not believe his explanation, because they convicted him.

  30. The appellant nevertheless says that he was wrongly convicted because the trial judge ought not to have directed the jury that what the prosecution had to establish was simply that he knew that he was importing prohibited material. He maintains that he should have directed them that the prosecution had to prove not only that he knew that the videos contained indecent photographs but also that they were indecent photographs of children. I would reject that argument. In my opinion the direction by the trial judge was in accordance with the law as laid down in R v Hussain [1969] 2 QB 567.

  31. It was, of course, open to the appellant to say, if this was the fact, that he believed the videos to contain indecent photographs of adults and that he acted as he did because he believed, contrary to the fact, that they were prohibited. The line of defence which was approved in R v Taaffe [1984] AC 539 ensures the acquittal of people who genuinely believe that they are importing indecent photographs of adults which are not obscene, when they are in fact photographs of children. But it is for the defendant to put forward that defence. The prosecution does not have to prove what the accused knew the goods were which he was seeking to import knowing that they were prohibited goods.

  32. In many cases, where the goods were placed in sealed or concealed packages and there is no evidence from the accused's own mouth that he knew what was in them, it would be an impossible task for the Crown to have to prove that he knew what the goods were. In this case, for example, the evidence showed that the appellant knew that he was importing video cassettes containing photographic material. But there was no evidence that he ever saw what was in the videos which the third party had handed to him or that he had any other means of knowing precisely what they contained. In my opinion the prosecution would have been bound to fail for lack of evidence if the jury had been given the direction which, although not asked for at the time, the appellant now says they should have been given.

  33. The importance of this case lies not in the point which the appellant has raised, which I consider to be without merit, but in the highly damaging effects on the systems of prohibition and restriction on the importation of goods into this country if his argument were to be upheld. The point had some initial appeal to your Lordships in view of the way in which the certified questions were framed. But on further analysis it can be seen, assuming that R v Hussain was correctly decided - as has already been held, in my respectful opinion for sound reasons, on two occasions in this House - that these questions were misconceived. I would dismiss the appeal.

    Lord Clyde

    My Lords,

  34. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Hutton. For the reasons they give I would also dismiss the appeal.

    Lord Hutton

    My Lords,

  35. The appellant was stopped at Heathrow Airport on arrival from Amsterdam in possession of two video films. The video films were labelled respectively "Spartacus" and "The Godfather Part 2" which are ordinary films on general release. Each film, after beginning as its label indicated, contained footage which included indecent photographs of teenage boys under the age of 16.

  36. Section 42 of the Customs Consolidation Act 1876 provides:

    The goods enumerated and described in the following table of prohibitions and restrictions inwards are hereby prohibited to be imported or brought into the United Kingdom, ....

    A TABLE OF PROHIBITIONS AND RESTRICTIONS INWARDS

    Goods prohibited to be imported

    ....

    Indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles.

  37. In considering the application of section 42 it is necessary to have regard to the legislation in England relating to obscene photographs and to indecent photographs of young persons under the age of 16. The Obscene Publications Act 1959 makes it an offence to publish an obscene photograph of a person, whether that person is an adult or a young person. The Protection of Children Act 1978 makes it an offence to have possession of an indecent photograph of a young person under the age of 16. It is not in dispute and is accepted by the Commissioners of Customs and Excise that by reason of articles 30 and 36 of the EEC Treaty (now, after amendment, articles 28 and 30 EC) the restriction on the importation of indecent or obscene photographs contained in section 42 of the 1876 Act does not apply unless the publication or possession of such photographs within the United Kingdom is unlawful under domestic law: see Conegate Ltd v HM Customs and Excise (Case 121/85) [1987] QB 254 and R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Noncyp Ltd [1990] 1 QB 123, 131 per Woolf LJ. Therefore section 42 prohibits the importation of indecent photographs of young persons under the age of 16, but it does not prohibit the importation of indecent photographs of adults if the photographs are not obscene. In the present case it was accepted by the appellant at his trial that the pictures on the two video films were of young persons under the age of 16 and it is not in dispute that their importation was prohibited by section 42.

  38. 38. At Isleworth Crown Court the appellant was convicted on the two counts on which he was indicted under section 170(2) of the Customs and Excise Management Act 1979, as amended which provides:

    Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion

    ....

    (b)

    of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment; or ....

    he shall be guilty of an offence under this section and may be arrested.

  39. The counts were:

    Count 1

    STATEMENT OF OFFENCE

    Being knowingly concerned in a fraudulent evasion of a prohibition on the importation of goods contrary to section 170(2) of the Customs and Excise Management Act 1979.

    PARTICULARS OF OFFENCE

    GILES JAVEN FORBES on or about 7 July 1998 at London Heathrow Airport and elsewhere within the jurisdiction of the Central Criminal Court, in relation to a certain video cassette labelled 'Spartacus' and which contained indecent photographs of children, was knowingly concerned in a fraudulent evasion of the prohibition on importation thereof imposed by force of section 42 of the Customs Consolidation Act 1876.

    Count 2

    STATEMENT OF OFFENCE

    Being knowingly concerned in a fraudulent evasion of a prohibition on the importation of goods contrary to section 170(2) of the Customs and Excise Management Act 1979.

    PARTICULARS OF OFFENCE

    GILES JAVEN FORBES on or about 7 July 1998 at London Heathrow Airport and elsewhere within the jurisdiction of the Central Criminal Court, in relation to a certain video cassette labelled 'The Godfather Part 2' and which contained indecent photographs of children, was knowingly concerned in a fraudulent evasion of the prohibition on importation thereof imposed by force of section 42 of the Customs Consolidation Act 1876.

  40. The appellant advanced the following defence in giving evidence at his trial. He went to Amsterdam for a break. In a bar in Amsterdam he met a man and they had a talk about London. The man asked him to do him a favour and to take something back for a friend, and he agreed to do so and to meet the man the next day. When he met him next day the man gave him two video films "Spartacus" and "The Godfather Part 2". The man told him that the video contained "The Exorcist" and "Kidz" and he (the appellant) thought they were prohibited films. The arrangement was that he would hand over the video films to a man whom he was to meet in a cinema in Notting Hill. He received no payment for taking the video films to London.

  41. The appellant also said in evidence that before he boarded his aeroplane at Amsterdam Airport he went to the airport shop where he bought genuine video films of "Spartacus" and "The Godfather Part 2" for which he received receipts. On arrival at Heathrow he left the two genuine video films in a lavatory at Heathrow. He then went through customs with the two video films containing the indecent pictures, and he was able to produce, and did produce, the receipts for the genuine video films which appeared to relate, by virtue of their external labelling, to the two video films which he was carrying.

  42. The films "The Exorcist" and "Kidz", to which the appellant referred in his evidence were films which were not indecent or obscene and their importation was not prohibited.

  43. It is apparent from the summary of the appellant's evidence, and also from the comments of defence counsel after the trial judge had concluded his summing up to the jury, that the only defence advanced on behalf of the appellant was that he believed that he was carrying two films "The Exorcist" and "Kidz" the importation of which, contrary to his belief, was not prohibited. If the jury had accepted that such a belief was a reasonable possibility they would have had to acquit him on both counts, and in his summing up the trial judge so directed them in accordance with the decision of this House in R v Taaffe [1984] AC 539.

  44. In that case the defendant carried cannabis from Holland into England and his defence was that he believed that he was carrying currency and that the importation of currency was prohibited, but the importation of currency, contrary to his belief, was not prohibited. The Court of Appeal held that on the defendant's version he would not be guilty and this ruling was upheld by this House. In his speech, at p 546 Lord Scarman cited with approval the following passage from the judgment of Lord Lane CJ in the Court of Appeal and stated that he agreed with it:

    Lord Lane CJ construed the subsection under which the respondent was charged as creating not an offence of absolute liability but an offence of which an essential ingredient is a guilty mind. To be 'knowingly concerned' meant, in his judgment, knowledge not only of the existence of a smuggling operation but also that the substance being smuggled into the country was one the importation of which was prohibited by statute. The respondent thought he was concerned in a smuggling operation but believed that the substance was currency. The importation of currency is not subject to any prohibition. Lord Lane CJ concluded, [1983] 1 WLR 627, 631:

     

    '[The respondent] is to be judged against the facts that he believed them to be. Had this indeed been currency and not cannabis, no offence would have been committed.'

     

    Lord Lane CJ went on to ask this question:

     

    'Does it make any difference that the [respondent] thought wrongly that by clandestinely importing currency he was committing an offence?'

    The Crown submitted that it does. The court rejected the submission: the respondent's mistake of law could not convert the importation of currency into a criminal offence: and importing currency is what it had to be assumed that the respondent believed he was doing.

    My Lords, I find the reasoning of the Lord Chief Justice compelling. I agree with his construction of section 170(2) of the 1979 Act: and the principle that a man must be judged upon the facts as he believes them to be is an accepted principle of the criminal law when the state of a man's mind and his knowledge are ingredients of the offence with which he is charged.

    Because of the points raised by the appellant on this appeal it is necessary to describe in a little detail the manner in which the trial judge summed up to the jury.

    1. The judge told the jury that the prosecution had to prove that the appellant knew that he was importing prohibited material (at p 5 of the record).

    2. The judge told the jury, in effect, that if the appellant believed that he was importing "The Exorcist" and "Kidz", then, although he actually thought that he was importing prohibited material, he would not be guilty of doing so because those films were not prohibited material (at pp 5 and 6 of the record).

    3. Later in the summing up (at p 8 of the record) the judge dealt with the matters which the prosecution had to prove. He told the jury that the prosecution had to prove that there was a deliberate evasion of the prohibition of the importation of prohibited material, and he said that it was accepted by the defence that the appellant had imported indecent material which was prohibited. He further told the jury that the prosecution had to prove that the appellant knew that prohibited goods were being imported but that it was not necessary to prove that he knew "the very films" that he imported, provided that he knew that he was importing indecent material and that he knew that the material was prohibited.

    4. The judge then summarised the evidence for the prosecution and he concluded that summary by stating, at p 12 of the record:

      Members of the jury, that is the prosecution case. Are you satisfied on that case that he was knowingly importing prohibited material? If you are not inclined to be satisfied on that case, or you think it is not good enough, then that is the end of the matter.

      But before you are satisfied, if you are left with the view that proves that he imported prohibited material, before you reach that conclusion, you have to reject his defence. That does not mean the defence has to prove anything, but it is obvious, is it not, if the prosecution prove the case, on the face of it, and the defendant gives you another account, before you can be sure that the prosecution account is right you have to reject his account. So let me remind you of what the defence was in this case.

      The judge then summarised the evidence of the defendant and asked the jury to retire to consider their verdict.

  45. Some time after the jury had retired they sent two questions to the judge and the following discussion took place in the absence of the jury between the judge and Mr Vaudin, counsel for the prosecution, and Miss Black, counsel for the defence:

    THE JUDGE:   I have two notes from the jury. The first one is: 'Could we have clarification if the defendant had brought in the two videos and they contained 'The Exorcist' or 'Kidz' which he believed to be prohibited, would he be guilty of the charge?' To which the answer is No, is it not?

    The next question is slightly more complicated: 'Or does the charge specifically relate to child pornography content?'

    Now, the charge of course is being mainly concerned in the fraudulent evasion of prohibition. And the Crown have alleged that it contains indecent photographs of children. They have to prove that it contains indecent photographs of children. They do not have to prove that he knew that it contained indecent photographs of children, as I understand it, but only that he knew that it was prohibited material.

    In effect, of course, in videos prohibited material would only be indecent or violent material, I imagine. Although, I suppose not. It might contain instructions such as how to set up bombs and the like. I know not where that would come.

    But the charge does relate specifically to child pornography. As laid, the prosecution must prove child pornography. But knowingly? They must only prove that he knew that it contained prohibited material. They do not have to prove he knew exactly what the prohibited material was.

    Do you agree with that?

    MR VAUDIN:  Yes, I do.

    THE JUDGE:  Yes. What do you say, Miss Black?

    MISS BLACK:  I agree with your Honour, but I think - the defence is based around 'Kidz' and 'The Exorcist'.

    THE JUDGE:  Yes. I shall tell them if [he] thought it was 'Kidz' and 'The Exorcist' he would be not guilty.

  46. The jury then returned to court and the judge told them that the answer to their first question was "No". In reply to the jury's second question the judge said:

    What the prosecution do have to prove is that he knew he was bringing in a prohibited substance - I am sorry, I have used the wrong word for this situation - that he knew that he was bringing in prohibited material; that is, he knew the video contained prohibited material. Not that he necessarily knew exactly what the prohibited material was.

    You can see, it might well be, especially if a lot is brought in, that someone may well not know exactly what is in each item.

    The prosecution must prove that he knew that he was bringing in prohibited material. And he, although the burden of proof is on the prosecution - remember that - he seeks to disprove it by saying, 'I thought I was bringing in 'The Exorcist' and 'Kidz', and 'The Exorcist' and 'Kidz' is not banned and indecent material.' And if the prosecution have not satisfied you, as it were, in the first instance, or your first looking at it, that he knew he was bringing in prohibited material, that would be the end of it.

    But if they do go, as it were, towards satisfying you that he knew that he was bringing in indecent material, you must remember, before you can reach that conclusion, you must reject his defence, having listened to his defence in which he said, 'I thought it was 'The Exorcist' and 'Kidz'', you must say, Well, we just don't believe him.

    But first you must put with that being sure that the prosecution have satisfied you by his behaviour, and the situation which you will find as a matter of fact, that he knew he was bringing in prohibited photographs. But not necessarily the ones that are there.

  47. The jury then retired and shortly afterwards the court adjourned for the day.

  48. Next morning the jury sent further questions to the judge which were:

    Can you reclarify the question on prohibited material? Can you check that we will understand before we leave?

  49. The judge had a further discussion with counsel and told them what he intended to say to the jury and defence counsel agreed that what he was going to say was right. The jury then returned to court and in the course of reclarifying his direction to them the judge said:

    Secondly, they must prove that the defendant knew that the goods which were being imported - and 'the goods', of course, are these parts of the video in the middle - are subject to a prohibition. But the Crown do not have to go on to prove that he knew the precise category of goods that were imported ....

    So that, taking an example of drugs, if you are asked to import drugs in a box, or concealed, and you say to the person who asks you, What are the drugs? And they say, heroin, when it is in fact cocaine, and you bring it into the country, and that is proved - the prosecution will prove that you knowingly imported a prohibited material. They won't have proved, of course, that you knew it was cocaine, which is what you were told, although in fact it is heroin. That is what you believed, and that is what you will be judged on. They won't have proved either that you knew it was heroin, which is what you did import, because you did not know it was heroin if you believed it was cocaine. But what they will have proved is that you knew, in bringing in the item, you were concerned in bringing in prohibited goods, and evading the customs in doing so.

  50. After retiring for a further period the jury returned a verdict of guilty on both counts by a majority of 11 to 1.

  51. The appellant appealed and Rose LJ stated the point raised before the Court of Appeal as follows:

    This appeal, conducted on behalf of the appellant by Mr Salter, who did not conduct the trial below, raises a short and simple question. It is this: when indecent photographs of children are imported, by someone who believes he is importing prohibited material, is it sufficient for the prosecution to prove that the defendant knew he was importing indecent material or must the prosecution go further and prove that the defendant knew that the indecent material related to children under 16?

  52. It is clear that in his summing up the trial judge told the jury that they must decide whether the appellant knew that he was importing "prohibited material", the judge did not refer to "indecent material" in this context, and therefore I think, with respect, that it would be more accurate to state the question raised before the Court of Appeal as being:

    When indecent photographs of children are imported, by someone who believes he is importing prohibited material, is it sufficient for the prosecution to prove that the defendant knew that he was importing [prohibited] material or must the prosecution go further and prove that the defendant knew that the [prohibited] material related to children under 16?

  53. In its judgment the Court of Appeal, in reliance on the judgment of Widgery LJ in R v Hussain [1969] 2 QB 567, 572A, answered the question in the negative and dismissed the appeal.

  54. The Court of Appeal then certified two points of law of general public importance:

    (1)

    Where the defendant is charged contrary to section 170(2) of the Customs and Excise Management Act 1979 with being knowingly concerned in the fraudulent evasion of the prohibition imposed by section 42 of the Customs Consolidation Act 1876 on the importation of an indecent photograph of a child is it sufficient for the Crown to prove that he knew he was importing an indecent photograph or must it be proved also that he knew that it was a photograph of a child?

    (2)

    Is the answer to (1) above affected by the defendant's mistaken belief that what he believes he is importing is subject to a prohibition?

  55. In delivering the judgment of the Court of Appeal in R v Hussain Widgery LJ stated, at pp 571H-572A :

    It seems perfectly clear that the word 'knowingly' in section 304 (b) is concerned with knowing that a fraudulent evasion of a prohibition in respect of goods is taking place. If, therefore, the accused knows that what is on foot is the evasion of a prohibition against importation and he knowingly takes part in that operation, it is sufficient to justify his conviction, even if he does not know precisely what kind of goods are being imported. It is, of course, essential that he should know that the goods which are being imported are goods subject to a prohibition. It is essential he should know that the operation with which he is concerning himself is an operation designed to evade that prohibition and evade it fraudulently. But it is not necessary that he should know the precise category of the goods the importation of which has been prohibited.

  56. The principle stated by Widgery LJ in relation to knowledge contains two parts. The first part is that the prosecution must prove that the defendant knew that the goods which he is carrying are goods subject to a prohibition. The second part is that if the prosecution proves such knowledge it is not necessary for it to prove that the defendant knew what kind of goods he is carrying. The issue for the jury becomes blurred if they are required to consider the knowledge of the defendant as to the kind or category of goods which he is carrying.

  57. In the present case it is not in dispute that the goods carried by the appellant were prohibited goods. Once the jury had rejected (as they did) the "Taaffe defence" advanced on behalf of the appellant that he believed he was carrying two prohibited video films but that, in reality, those films were not prohibited, the only issue for the jury to decide was whether the defendant knew that the goods which he was carrying were subject to a prohibition. The judge on a number of occasions correctly directed the jury that this was the issue which they had to decide. He also correctly told the jury that the prosecution had to satisfy them that the defendant "by his behaviour, and the situation which you will find as a matter of fact, that he knew he was bringing in prohibited photographs."

  58. The submissions advanced to the House on behalf of the appellant by Mr Lane QC placed reliance on the distinction between three types of indecent photographs which he categorised as follows:

    (A)

    An obscene photograph within the meaning of section 1 Obscene Publications Act 1959 - where the photograph has a tendency to deprave or corrupt the viewer.

    (B)

    An indecent photograph of a person under the age of 16 years which contravenes section 1 Protection of Children Act 1978.

    (C)

    An indecent photograph which is neither obscene nor an indecent photograph of a child (eg soft adult pornography); and consequently does not contravene either of the above statutes.

  59. Mr Lane relied on the point that there is a prohibition on the importation of photographs in categories (A) and (B), but there is no prohibition on the importation of photographs in category (C). He submitted that these differences have been further emphasised by the Sex Offenders Act 1997 in which a distinction is drawn between "child" and "adult" pornography so that an importer of adult pornography does not commit a sexual offence and is therefore not required to notify the police of his name and address, whereas an importer of child pornography does commit a sexual offence and is so required.

  60. Mr Lane submitted that in this type of case a direction based on the judgment in R v Hussain creates an injustice because:

    1. a defendant who believes (or may believe) that he is importing a photograph in category (C) will be guilty of an offence;

    2. a jury is prevented from determining the defendant's actual knowledge of the facts;

    3. it results in the conviction of a defendant whose knowledge of the prohibited import is "approximate" as opposed to "actual";

    4. it results in the conviction of a person who knows that the goods are "indecent" being deemed to know that they were within only categories (A) and (B);

    5. it requires a jury to cease their deliberations when they are sure that the defendant knew that he had indecent material in his possession whereas, if they were allowed, they might further conclude that he believed that he was importing material in category (C);

    6. the Sex Offenders Act 1997 made a distinction between the importation of adult and child pornography and imposed more onerous sanctions for the latter.

  61. I am unable to accept these submissions. The offence created by section 170(2)(b) of the 1979 Act is the offence of being "knowingly concerned in any fraudulent evasion .... of any prohibition .... with respect to the goods ...." The essence of the offence is being knowingly concerned in the evasion of a prohibition. The jury were fully entitled to find that the behaviour of the appellant satisfied them that he was knowingly concerned in the evasion of a prohibition. His behaviour in buying genuine video films of "Spartacus" and "The Godfather Part 2" in the airport shop at Amsterdam Airport and obtaining receipts for them, leaving the genuine video films in the lavatory at Heathrow, and then producing the receipts which appeared to relate to the two video films containing indecent material, pointed quite clearly to the conclusion that he knew that he was involved in the evasion of a prohibition against importation.

  62. In many cases a person who, at the request of another and, it may be, in return for a payment, brings into the United Kingdom an article, knowing that he is taking part in the fraudulent evasion of a prohibition against importation, will not know the precise nature of the article which he is carrying. In such a case the task for the prosecution in proving an offence would be virtually impossible if, in addition to having to prove that the article was a prohibited one and that the defendant knew that he was involved in the evasion of a prohibition, it also had to prove that he knew the precise nature of the article. In my opinion the application of the principle stated in R v Hussain [1969] 2 QB 567 gives rise to no injustice in a case such as the present one, as it is open to the defendant to seek to rely on the "Taaffe defence" if his case is that he believed that he was carrying an article which in reality and contrary to his belief was not prohibited.

  63. Counsel also relied on the judgment of the Court of Appeal in R v Dunne (1998) 162 JP 399, but in my opinion the judgment does not support his argument as it was not concerned with the issue which arose in R v Hussain but with the issue whether a defendant can know that an article is obscene before a jury has found that it tends to deprave and corrupt.

  64. Counsel advanced an alternative submission that in the present case a strict application of the words of Widgery LJ that the defendant must know "that the goods .... are subject to a prohibition" means that the prosecution must prove that the appellant knew that the photographs fell into either category (A) or category (B). I am unable to accept that submission. In my opinion there is no reason to qualify Widgery LJ's words and it is sufficient that the prosecution proves that the defendant knew that he was involved in the evasion of a prohibition.

  65. The two certified questions, as they are formulated, do not permit an answer to the issue which arises on this appeal as the first question refers to the defendant's knowledge of the importation of "an indecent photograph" rather than to the importation of "prohibited material" and therefore it is not appropriate to answer them.

  66. For the reasons which I have given I would dismiss the appeal.


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