R v Forbes (Giles)

JurisdictionEngland & Wales
JudgeLORD SLYNN OF HADLEY,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD CLYDE,LORD HUTTON
Judgment Date19 July 2001
Neutral Citation[2001] UKHL 40
Date19 July 2001
CourtHouse of Lords
Regina
and
Forbes
(Appellant) (2000) (On Appeal from the Court of Appeal (Criminal Division)

[2001] UKHL 40

Lord Slynn of Hadley

Lord Steyn

Lord Hope of Craighead

Lord Clyde Lord Hutton

HOUSE OF LORDS

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...

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