House of Lords
|Session 2001- 02
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|Judgments - Regina v Forbes (2000) (Criminal)
HOUSE OF LORDS
Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead Lord Clyde Lord Hutton
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION)
ON 19 JULY 2001
 UKHL 40
LORD SLYNN OF HADLEY
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 categories1) 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)  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  2 QB 567, 572A Lord Widgery LJ stressed that the relevant question is whether the accused knows
6. The correctness of that decision was accepted in R v Hennessey (1978) 68 Cr App R 419, 423 where Lawton LJ said:
7. The decision in R v Hussain was also approved by the House of Lords in R v Taaffe  AC 539, 547 and in R v Shivpuri  AC 1.
8. The decision in R v Taaffe  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
10. There can be no doubt that the jury by their verdicteven if by eleven to onewas 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.
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
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  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:
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  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  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:
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:
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:
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  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  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  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  AC 1, 17:
28. In R v Taaffe  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  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  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  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.
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.
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:
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)  QB 254 and R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Noncyp Ltd  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.