Regina v. Forbes (Criminal)

For an offence of knowingly participating in the fraudulent evasion of an import prohibition, the prosecution must prove that the goods were prohibited and that the defendant knew the operation was designed fraudulently to evade a prohibition. It need not prove that the defendant knew the goods’ precise nature or category.

The defendant must, however, be judged on the facts as he believed them to be. A person who genuinely believes that the goods are of a kind whose importation is lawful commits no offence, even if that person mistakenly believes their importation to be prohibited.

The appellant arrived at Heathrow Airport from Amsterdam carrying two deceptively labelled video cassettes containing indecent photographs of boys under 16. At Isleworth Crown Court he was convicted on two counts under section 170(2) of the Customs and Excise Management Act 1979 of knowingly participating in the fraudulent evasion of the prohibition imposed by section 42 of the Customs Consolidation Act 1876.

He claimed that he believed the cassettes contained two films whose importation he mistakenly thought was prohibited. The judge directed the jury that it had to reject that account and be sure that he knew he was importing prohibited material, but that the prosecution need not prove knowledge of the material’s precise category. The jury convicted by a majority of 11 to one.

The Court of Appeal dismissed his appeal. The central issue before the House was whether the prosecution also had to prove that he knew the prohibited photographs depicted children under 16.

1. Appeal dismissed unanimously. Lord Hope of Craighead and Lord Hutton delivered the principal speeches. Lord Slynn of Hadley agreed with the applicable principle and result. Lord Steyn and Lord Clyde agreed with Lord Hope and Lord Hutton.

2. Per Lord Hope and Lord Hutton, section 170(2)(b) of the Customs and Excise Management Act 1979 requires the prosecution to prove two matters. The goods must have been subject to a statutory prohibition or restriction, and the defendant must have been knowingly concerned in its fraudulent evasion or attempted evasion. The agreed character of the videos established the first element.

3. Per Lord Hope and Lord Hutton, the mens rea concerns the defendant’s knowledge of the nature and purpose of the operation. The prosecution must prove that the defendant knew the goods were subject to a prohibition and that the operation was designed fraudulently to evade it. It need not prove that he knew the goods’ precise nature or category. The rule in R v Hussain [1969] 2 QB 567 was correct, was of general application, and had subsequently been approved by the House.

4. Per Lord Hope and Lord Hutton, the defendant must nevertheless be judged on the facts as he believed them to be. The principle in R v Taaffe [1984] AC 539 protects a person who genuinely believes that the goods are of a kind which is not prohibited in fact, even where that person mistakenly believes the goods to be prohibited. The trial judge correctly left that defence to the jury, which rejected it.

5. Per Lord Hutton, requiring proof of knowledge of the goods’ precise nature would make prosecutions of couriers virtually impossible in many cases. The appellant’s calculated use of genuine cassettes and receipts entitled the jury to infer that he knew he was participating in the evasion of an import prohibition.

6. Per Lord Hutton, R v Dunne (1998) 162 JP 399 did not govern the issue. It concerned whether a defendant could know an article was obscene before the jury had determined its tendency to deprave and corrupt.

7. The certified questions were not answered because their reference to knowledge of an indecent photograph failed to capture the prior and decisive issue concerning knowledge of prohibited material.

1. House of Lords: Dismissed the appeal unanimously and affirmed the conviction.
2. Court of Appeal (Criminal Division): Dismissed the appeal in reliance on R v Hussain [1969] 2 QB 567 and certified two points of law of general public importance.
3. Isleworth Crown Court: The appellant was convicted on two counts of knowingly participating in the fraudulent evasion of an import prohibition. The jury returned majority verdicts of 11 to one.