Nurse v Republic of Trinidad and Tobago
| Jurisdiction | UK Non-devolved |
| Judge | Lady Arden |
| Judgment Date | 28 November 2019 |
| Neutral Citation | [2019] UKPC 43 |
| Date | 28 November 2019 |
| Docket Number | Privy Council Appeals Nos 0082 and 0083 of 2017 |
| Court | Privy Council |
[2019] UKPC 43
Privy Council
Michaelmas Term
From the Court of Appeal of the Republic of Trinidad and Tobago
Lord Kerr
Lord Carnwath
Lord Lloyd-Jones
Lady Arden
Lord Kitchin
Privy Council Appeals Nos 0082 and 0083 of 2017
1 st Appellant
Peter Carter QC
Anand Ramlogan SC
Pippa Woodrow
(Instructed by Alvin Pariagsingh)
2 nd Appellant
Anand Ramlogan SC
Alana Rambaran
Chelsea Stewart
(Instructed by Alvin Pariagsingh)
Appellants:
(1) Darren Nurse
(2) Canserve Ltd
Respondent
Peter Knox QC
(Instructed by Charles Russell Speechlys LLP)
Heard on 19 March 2019
This appeal is primarily about the mental element or mens rea, in the sense of awareness or belief, as to the nature of the relevant goods required for the commission of certain statutory importation offences. It raises the question whether on the true interpretation of the legislation, an essential ingredient of such offences is an individual declarant's actual knowledge or belief in the falsity of a customs declaration, or the fact that the goods imported in a sealed container constitute goods of another description the importation of which is prohibited. There is a separate question about the criminal liability of that individual's employer.
The correct approach to the interpretation of legislation of any kind when an issue arises as to the mental element for an offence is very well established. The courts presume that Parliament intended that the prosecution should have to show that the defendant knew the ingredients of the offence, and that presumption is not displaced with respect to any such ingredient unless there is clear wording to that effect or it is necessarily implicit in the language of the statute that it is displaced. Many authorities support this approach. The Board considers that the five-point summary of the law given by Lord Scarman, giving the advice to Her Majesty, in Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1, which also addresses regulatory offences, sets out the relevant fundamental principles conveniently and with great clarity:
“In their Lordships' opinion, the law relevant to this appeal may be stated in the following propositions (the formulation of which follows closely the written submission of the appellants' counsel, which their Lordships gratefully acknowledge): (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is ‘truly criminal’ in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.” (p 14)
Lord Scarman's summary distinguishes regulatory offences from other offences, particularly offences described in earlier authorities as “truly criminal” offences. Importation offences fall into the broad category of regulatory offences. Regulatory offences relate to social concerns and help to regulate the way in which people behave in relation to the matters which affect the smooth running of society, such as the payment of tax or avoidance of pollution and so on.
In June 2009, Canserve imported a container into Trinidad and Tobago. When it arrived in port, Canserve provided a customs declaration for the goods. This was a customs form no C75 revised and was signed by Mr Darren Nurse (“Mr Nurse”), Canserve's building manager, and was dated 23 June 2009. It verified the details of the goods to which the declaration related; in particular it described the goods and their invoice value. The goods consisted of 20 desks, 100 filing cabinets, 45 bookshelves and 40 installation kits and the invoice price was US$18,881. A customs clerk, Mr Larry Howell, certified that this was the only invoice involved in the relevant transaction. Canserve was the named consignee of the goods.
Mr Nurse also signed an application dated 26 June 2009 for permission to remove the container from the port to Canserve's premises before the customs examination took place. He undertook to ensure that the container was kept sealed.
Customs officials inspected the container on 10 July 2009. One of those present was Mr Andrews of CARIRI, the Caribbean Industrial Research Unit, who attended on behalf of Canserve. One of the customs officers asked Mr Andrews why he was there. He replied that someone from Canserve had asked him to attend. At that point the customs officer asked Mr Nurse, who was also present: “Why you have CARIRI here if you are all expecting office furniture?” There was no answer. This evidence was not challenged. The customs inspection revealed that the container contained 51 gaming machines, 13 boxes of parts and other associated items. Gaming machines are prohibited from importation and the declaration was clearly incorrect.
On 15 March 2010, Mr Lennox Nunez of CARIRI inspected two of the machines and found that there was a software limitation or circuit fault that inhibited the operation of the gaming machines. Subject to that, it would seem to be a reasonable inference (as there appears to be no direct evidence in the documentation before the Board) that the gaming machines actually imported were worth more than the desks and other items described in Mr Nurse's declaration.
Three criminal charges were laid against Canserve and Mr Nurse:
i) making and subscribing a false declaration in a customs declaration value contrary to section 212(a) of the Customs Act Chapter 78:01 (“the Customs Act”);
ii) importing, contrary to section 213(a) of the Customs Act, goods which were prohibited under the second schedule of the Prohibition (Carriage Coastwise, Importation and Exportation) Order; and
iii) importing goods not corresponding with a customs declaration contrary to section 214 of the Customs Act.
Sections 212 to 214 are set out in the Appendix to this judgment.
Trial took place before the Magistrate, Her Worship Mrs Luna Cardenas Ragoonanan. The Magistrate held that there was no case to answer against Mr Nurse and Canserve. The machines did not work and so they did not come within the prohibition against importation within the meaning of the Customs Act. Therefore section 213(a) could not be infringed. As to section 214, the Magistrate held that the prosecution had to prove mens rea and therefore to show that Mr Nurse knew that the items in the container did not correspond with the declaration. However, the declaration did not list the items in the container and the prosecution had little further to show that Mr Nurse or Canserve knew what was in them. As to section 212(a), only Mr Nurse was connected to this and not Canserve, and so there was no case for Canserve to answer on this charge. As to Mr Nurse, the prosecution had failed to show that Mr Nurse had signed the document knowing it to be false.
On 29 June 2017, the Court of Appeal allowed an appeal against the decision of the Magistrate and ordered a re-trial.
The Court of Appeal held that the offence created by section 212(a) of the Customs Act was one of strict liability and that the prosecution did not have to show that the declarant knew that the declaration was false in any respect. The Court of Appeal also held that the Magistrate erred in holding that the goods were not prohibited goods if they could not be made to work. As to section 212(a), there was sufficient evidence of falsity and the offence was one of strict liability. The Court of Appeal followed the decision of the Board in Patel v Comptroller of Customs [1966] AC 356. In that case, the Board on an appeal from Fiji, held that the offence of making a false customs declaration contrary to section 166 of the Fiji Customs Ordinance did not require knowledge and so a person could innocently make a false entry.
As to section 213(a) and section 214, the Court of Appeal again held that both offences were of strict liability. It ruled that Customs and Excise Officer Walker v Feese (Magisterial Appeal No 96 of 2009) (unreported) 10 May 2011 was wrong to the extent it suggested otherwise, and it upheld its previous decision in De Gale v United Hatcheries Ltd (Magisterial Appeal No 155 of 1986) (unreported) 15 July 1992.
In the course of the hearing, the Court of Appeal asked the parties to make further submissions on the intermediate approach adopted in Canada, known as the “halfway house”, which had been raised by the appellants' submissions. The appellants argued that on a proper construction of the three relevant sections, it was open to the defendants to defeat the charges by giving evidence that they acted in an honest and reasonable mistake in doing what they did. The Court of Appeal held that the halfway house argument ought not to be adopted in Trinidad and Tobago because (as applied in Canada at least) it sought to impose a reverse burden on a defendant to prove that he took all reasonable care, and because that was a matter for Parliament and not the courts.
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