Forbes v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | President of the Queen's Bench Division |
| Judgment Date | 11 July 2006 |
| Neutral Citation | [2006] EWCA Civ 962 |
| Date | 11 July 2006 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2005/2159 |
[2006] EWCA Civ 962
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT COURT OF APPEAL
Mr Justice Stanley Burnton
Royal Courts of Justice
Strand, London, WC2A 2LL
The President Of The Queen'S Bench Division
Lord Justice Scott Baker and
Lady Justice Hallett
Case No: A2/2005/2159
Helen Malcolm (instructed by Messrs Davis Hanson) for the Appellant
Steven Kovats (instructed by The Treasury Solicitor ) for the Respondent
President of the Queen's Bench Division
This is the judgment of the court.
In August 2004, Giles Forbes (the appellant) began proceedings for a declaration that the provisions of the Sex Offenders Act 1997 (the 1997 Act) which required him to comply with the notification requirements of the Act were incompatible with articles 8 and 14 of the European Convention on Human Rights (ECHR) . By consent, it was ordered that the question whether section 81 and paragraph 14(a) of schedule 3 to the Sexual Offences Act 2003 (the 2003 Act) which contain the current notification provisions, were compatible with article 8 of the Convention should be tried as a preliminary issue. On 26 th July 2005, Stanley Burnton J held that they were not incompatible. The simple contention on behalf of the appellant is that this decision was wrong in law and that he was entitled to the declaration he was seeking: hence this appeal.
On 23 rd March 1999 the appellant was convicted at Isleworth Crown Court of fraudulent evasion of the prohibition on the importation of goods, contrary to section 170(2) (b) of the Customs and Excise Management Act 1979. The full circumstances are narrated in the speech of Lord Hutton in the House of Lords in R v Forbes [2002] 2 AC 512, dismissing the appellant's appeal against conviction. In brief, however, he was returning to this country via Heathrow Airport from abroad when he was found to be in possession of two video tapes which contained indecent photographs of children under 16 years of age.
The critical feature of the decision of the House of Lords was that it was not a pre-requisite to the appellant's conviction that he knew or believed that he was importing indecent images of children. The headnote to the Law Report accurately summarises the effect of the decision.
"It was sufficient for the prosecutor to prove that a defendant knew that the operation on which he was engaged involved prohibited goods and was designed to evade a prohibition on their importation, and it was not necessary also to prove that the defendant knew the nature of the goods in question; that application of that principle gave rise to no injustice since, for the purposes of section 170(2) , a defendant was to be judged on the facts he believed them to be, so that a defence was available to him where the goods he was carrying, in fact and contrary to his belief, were not subject to prohibition".
The appellant claimed in his evidence at trial that although he believed that the importation of these video films was prohibited in the United Kingdom, he did not know that they contained indecent photographs of children. The judge directed the jury that they should not convict him unless they were sure that his defence was untrue. As Lord Hope of Craighead put it, "plainly they did not believe his explanation, because they convicted him". That said, we must examine the issue of incompatibility on the basis upon which the conviction was upheld. In any event, there may be others who during the course of fraudulent importation bring this kind of prohibited material into the United Kingdom without fully appreciating its true nature.
On 18 th May the appellant was sentenced to six months imprisonment. The result of his conviction and sentence was that he automatically became subject to the notification requirements created under Part 1 of the Sex Offenders Act 1997, for a period of seven years from the date of his conviction. The notification requirement expired in March 2006, but by then the 1997 Act had been repealed, and with effect from 1 st May 2004, replaced by equivalent provisions in the 2003 Act.
The importation of indecent or obscene articles is prohibited by section 42 of the Customs Consolidation Act 1876. The offence of which the appellant was convicted is found in section 170(2) (b) of the Customs and Excise Acts 1979 (the 1979 Act) , which, so far as relevant provides:
"Without prejudice to any other provision of the Customs and Excise Act 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…"
The notification requirements imposed on those who commit sexual offences were created by the 1997 Act. The sexual offences to which these requirements applied were specified in Schedule 1. They include
"1(1) ….
(d) an offence under section 1 of the Protection of Children Act 1978 (indecent photographs of children) ;
(e) an offence under section 170 of the Customs and Excise Management Act 1979 (penalty for fraudulent evasion of duty etc) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876 (prohibitions and restrictions) ; and
(f) an offence under section 160 of the Criminal Justice Act 1988 (possession of indecent photographs of children) …
Paragraph (e) is subject to the express limitation that it does not apply where the prohibited goods "did not include indecent photographs of persons who were under the age of 16." (sub para 2(c) ) .
These requirements were replaced by, but in effect repeated in, paragraphs 13, 14, and 15 of Schedule 3 of the 2003 Act respectively. The requirements themselves are found in sections 83–85, and they are no less, and may be rather more burdensome than before.
Section 1 of the Protection of Children Act 1978 (the 1978 Act) is directed at the making, distribution, possession with a view to publication, and publication of indecent photographs with children. Section 160 of the Criminal Justice Act 1988 (the 1988 Act) is concerned with the possession of such material. For both offences a limited statutory defence is made available to the defendant who proves what for present purposes only can be summarised as innocent possession.
Neither of these offences directly addresses the specific problem of the importation of child pornography and similar material from abroad. This distinct and specific conduct is not covered by either the 1978 Act or the 1988 Act. While it is correct for Miss Malcolm to point out that, by contrast with the offences created by the 1978 Act and the 1988 Act, no statutory defence is available, the defence provided at common law is perfectly well understood, and easily identified. Perhaps it is best encapsulated in the speech of Lord Hope in Forbes, where he said at para 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."
The existence of the defence, and the reasons for the limitations on it, were expressed by Lord Hutton. He explained at para 57:
"In many cases a person who…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 prohibition, it also had to prove that he knew the...
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