R v Taaffe

JurisdictionEngland & Wales
JudgeTHE LORD CHIEF JUSTICE
Judgment Date14 April 1983
Judgment citation (vLex)[1983] EWCA Crim J0414-5
CourtCourt of Appeal (Criminal Division)
Docket NumberNo. 6072/A/82
Date14 April 1983
Regina
and
Paul Desmond Patrick Taaffe

[1983] EWCA Crim J0414-5

Before:

The Lord Chief Justice of England (Lord Lane)

Mr. Justice McCowan

and

Mr. Justice Nolan

No. 6072/A/82

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

MR. R.D. ROEBUCK appeared on behalf of the Appellant.

MR. C. AYLWIN appeared on behalf of the Crown.

THE LORD CHIEF JUSTICE
1

On 18th November last year at the Crown Court at Gravesend, this appellant was charged under section 170(2) of the Customs and Excise Management Act 1979 with having, on 12th November last year at Sheerness, in relation to a class B controlled drug, namely 3,732 grammes of cannabis resin, been knowingly concerned in the fraudulent evasion of the prohibition on the importation of that substance imposed by section 3(1) of the Misuse of Drugs Act 1971. That section simply prohibits the importation or exportation of controlled drugs, of which cannabis resin is of course one.

2

The facts of the case are simple. The appellant drove a car into the green lane of the ferry terminal at Sheerness and told the customs officer who was on duty there that he had nothing to declare. The car was searched. It was noticed that the spare tyre was deflated. An examination was made of that tyre, and inside were found to be five packages containing cannabis resin. Not unnaturally the search then moved to the body of the appellant himself, and strapped to his back and underneath his clothing were discovered three further packages also containing cannabis resin, the total quantity being that stated in the indictment.

3

The appellant was cautioned by the customs officer and was asked if he knew what the substances in the packages were. He replied, "No, I am waiting to find out, because if it is drugs ….", and there his reply ended. So the officer then asked him "What did you think was in the packages?" and to that he replied simply "Money".

4

When arraigned he initially pleaded not guilty. The evidence which the prosecution were proposing to tender was not disputed and the procedure which was adopted in the case of Vickers (1975) 61 Cr. App. R. 48, was then put into operation, and the Judge was asked to rule upon the question whether the version of events advanced by the defendant, if accepted by the jury, would entitle him to be acquitted. Having heard arguments from both sides the learned Judge then came to the conclusion that he would be obliged, even upon the defendant's version of events, to direct the jury to convict. The defendant thereupon, upon advice, pleaded guilty and was sentenced to eighteen months' imprisonment.

5

He now appeals against that conviction on the ground that the Judge was wrong in law in the ruling which he gave upon the question posed before him.

6

The problem is not difficult to state but, like all problems which are not difficult to state, it is not quite so easy of solution. The question is this: on the assumption that the following facts are established, has the alleged offence been committed? These are the facts which, Mr. Aylwin on behalf of the Crown concedes, were the basis of the Judge's determination: (1) the appellant was enlisted by a third party in Holland to import a substance from that country into England in fraudulent evasion of the prohibition upon its importation and he did so import it; (2) that substance was in fact cannabis, the importation of which is prohibited by the Misuse of Drugs Act 1971; (3) the appellant mistakenly believed the substance to be currency; (4) currency is not subject to any such prohibition; (5) the appellant mistakenly believed that currency was the subject of a prohibition against importation.

7

The material parts of the Judge's ruling are as follows:

8

"It subsequently turned out that they were prohibited goods ….. it is not necessary for him to know precisely what the goods were and I take the view that if he believed, as he must have done, that there was a prohibition, and he was prepared to concern himself with the importation notwithstanding that prohibition, in the way in which it was done, ….. then I think that is sufficient for this offence to be made out. The fact that it subsequently transpires that he believed or he thought - and I am saying this for the purpose of this argument and not that it is a fact - that he believed that it was money that he was bringing in, does not afford him a defence."

9

One starts with the premise that this is not an offence of absolute liability. It is plain, from the use of the word "knowingly" in the section, that the prosecution have the task of proving the existence of mens rea, the mental element of guilt. Mens rea in this context means the mental element required by the particular statute on the part of the defendant before the prosecution can succeed.

10

What then in this case was the relevant mental element which section 170(2) required to be proved? It seems to us that it was primarily knowledge that the substance which was being imported was a drug, or certainly was a substance of some sort the importation of which was prohibited. We say "relevant", because there were no doubt other facets of the mental element which are not here in issue.

11

Mr. Aylwin on behalf of the Crown, seeking to uphold the conviction, relies principally on two cases. The first is that of Hussain (1969) 2 Q.B. 567, a decision of this Court. That was a case where a seaman was charged with the corresponding offence to the instant one, on the basis that he had assisted the prime movers in the importation of a quantity of cannabis by allowing the substance to be hidden in a cabin which he occupied on the ship. He appealed on the ground that the Judge had misdirected the jury by telling them that they could convict even if they were not satisfied that he knew precisely the nature of the goods. It should be observed that it was not suggested that the defendant in that case believed the goods to be of a nature which were not in fact the subject of prohibition.

12

The second case was again a decision of this Court in Hennessey (1979) 68 Cr. App. R. 419. In that case the Court adopted and applied the reasoning of the decision in Hussain. It should equally be observed that in Hennessey the appellant's stated belief was that the substance which he was importing was not drugs but was obscene films, again matters which he rightly believed to be the subject of prohibition so far as importation was concerned.

13

We do not think that these cases are helpful in deciding the issue which is before us, and in order to demonstrate why, it is necessary to read a short passage from Hussain, at pages 571 and 572, where Lord Justice Widgery (as he then was) had this to say: "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. Accordingly, in our judgment, there is nothing in that point taken on behalf of the defendant."

14

Mr. Aylwin submits that the word "know" in the context of that judgment includes the state of mind of a person who mistakenly believes a fact to exist. We respectfully disagree with that contention. It is essential that the defendant should know, in the ordinary sense of the word "know", that the goods being imported are goods subject to a prohibition, though on the basis of the decision in Hussain and Hennessey, he may not know the precise nature of the goods.

15

The matter can be approached from another angle. We turn to the decision of their Lordships in the House of Lords in Sweet v. Parsley 53 Cr. App. R. 221, and to a passage at page 246, where Lord Diplock, after citing what Mr. Justice Stephen said in Tolson (1889) 23 Q.B.D. 168, put the matter in these words: "…. even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief held honestly and on reasonable grounds in the existence of facts which, if true, would make the act innocent. As was said by the Privy Council in Bank of New South Wales v. Piper (1897) A.C. 383 at pages 389, 390, the absence of mens rea really consists in such a belief by the accused."

16

We say in passing that it is doubtful, in the light of subsequent decisions, whether the words "on reasonable grounds" should still be included, but it is not necessary for us to embark upon any inquiry as to that.

17

What then if the jury in the present case had been asked to decide the matter and had come to the conclusion that the appellant might have believed that what he was importing was currency and not prohibited drugs? He 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. Does it make any...

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6 cases
  • R v Forbes (Giles)
    • United Kingdom
    • House of Lords
    • July 19, 2001
    ...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 8 The decision in R v Taaffe [1984] AC 539 also accepted that for the purpose of section 170 ......
  • R v Luke Steven Derwood Datson
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    • Court of Appeal (Criminal Division)
    • September 26, 2022
    ...in some cases. a mistaken belief would provide a defence — citing an extract from the judgment of this court, given by Lord Lane CJ, in R v Taaffe [1983] 1 WLR 627 (which was later approved by the House of Lords – see [1984] 1 AC 530). In the extract Lord Lane CJ underlined that it was pla......
  • R v Ellis
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • July 31, 1986
    ...which he should not have been bringing in. Hennessey's appeal against conviction is dismissed." 16 In 1983 the case of R. v. Taaffe 77 Cr. App. R. 82, came before this court. Taaffe had this difference. In that case the defendant when he was found to have a lot of cannabis stowed in the spa......
  • R v Faraj (Shwan)
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • May 4, 2007
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3 books & journal articles
  • The Doctrine of Incapability and the Emperor's New Clothes: A Protected Defendant or Non-Existent Offences?
    • United Kingdom
    • Journal of Criminal Law, The No. 78-3, June 2014
    • June 1, 2014
    ...of Lord Bridge of Harwich when R v Shivpuri reached the House of Lords: [1987] AC 1 at 23. 35 27 August 198136 Confirmed in R v Taaffe [1983] 2 All ER 625. Note that in R v Brown (1889) 24 QBD 357, Lord Coleridge CJ seems to suggest that this was not always the way. It is possible, looking ......
  • Recent Judicial Decisions
    • United Kingdom
    • Police Journal: Theory, Practice and Principles No. 75-4, November 2002
    • November 1, 2002
    ...RvHussain [1969] 2 All ER 1117 approved, RvHennessey(Timothy) (1978) 68 Cr App R 419 doubted.(Decision of the Court of Appeal [1983] 2 All ER 625affirmed.)The lawLord Hutton said that in considering the application of s. 42 itwas necessary to have regard to the legislation in Englandrelatin......
  • CLARIFYING IMPOSSIBLE ATTEMPTS AND CRIMINAL CONSPIRACIES
    • Singapore
    • Singapore Academy of Law Journal No. 2007, December 2007
    • December 1, 2007
    ...1 AC 1. 6 Chua Kian Kok v PP supra n 2, at [44]. 7 This example is taken from Chua Kian Kok v PPsupra n 2, at [43]. See also R v Taaffe[1983] 2 All ER 625. 8 This example is taken from Chua Kian Kok v PP, ibid. 9 PP v Zainal Abidin bin Ismail [1987] 2 MLJ 741. 10 Thiangiah v PP [1977] 1 MLJ......

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