Judgments - Regina v Forbes (2000) (Criminal)

(back to preceding text)

    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."

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."

    39. 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.

    40. 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.

    41. 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.

    42. 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.

    43. 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."

    44. 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."

  

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

    47. 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?"

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."

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

    48. 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?"

    49. 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?"

    50. 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.

    51. 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?"

    52. 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."

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.

    53. 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."

    54. 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."

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.

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

(a)

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

(b)

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

(c)

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

(d)

    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);

(e)

    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);

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

    56. 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.

    57. 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.

    58. 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.

    59. 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.

    60. 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.

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

 
previous

Lords Parliament Commons Search Contact Us Index

© Parliamentary copyright 2001
Prepared 17 July 2001