Regina v Forbes

The House of Lords held that, for an offence under section 170(2)(b) of the Customs and Excise Management Act 1979, the Crown must prove that the goods were subject to a prohibition and that the defendant was knowingly concerned in a fraudulent evasion of that prohibition. It is not necessary for the Crown to prove that the defendant knew the precise category or identity of the prohibited goods (for example that indecent photographs were of children), provided he knew that the operation was designed to evade a prohibition.

The court applied and approved the principle stated in R v Hussain [1969] 2 QB 567 and confirmed that the defendant is to be judged on the facts as he believed them to be (R v Taaffe [1984] AC 539); a genuine belief that the goods were not prohibited remains a defence, but the jury in this case rejected that belief.

This was an appeal by the defendant against convictions for being knowingly concerned in a fraudulent evasion of the prohibition on importation of indecent photographs of children, contrary to section 170(2) of the Customs and Excise Management Act 1979 read with section 42 of the Customs Consolidation Act 1876.

• Background and facts: The appellant was stopped arriving from Amsterdam carrying two video cassettes labelled as benign films; each cassette contained, after the labelled material, footage including indecent photographs of persons under 16. He said he had been given the tapes by a stranger in Amsterdam to hand over in London and that he believed the tapes contained non-prohibited films ('The Exorcist' and 'Kidz'); he produced airport receipts for genuine retail copies which he said he had left at Heathrow.
• Procedural history: The appellant was convicted at Isleworth Crown Court. The Court of Appeal (Criminal Division) dismissed his appeal and certified two questions of law. The matter came to the House of Lords ([2001] UKHL 40).
• Issues considered: (i) whether, for a conviction under section 170(2)(b), the prosecution must prove that the defendant knew the indecent material was of children under 16 rather than merely that he knew the material was prohibited; and (ii) the effect of a defendant's mistaken belief about whether what he believed he was importing was prohibited.
• Reasoning and holding: The House analysed long‑standing authorities, in particular R v Hussain [1969] 2 QB 567, and concluded that the prosecutorial burden is to prove that the goods were subject to a prohibition and that the defendant knowingly took part in a fraudulent evasion of that prohibition. It is unnecessary to prove knowledge of the precise category of the goods. The court also confirmed that the defendant is judged on the facts as he believed them to be (R v Taaffe) so a genuine belief that the goods were not prohibited would exculpate, but in this case the jury rejected the appellant's account and convicted. The appeal was dismissed.

The Lords observed that requiring proof of knowledge of the precise nature of goods would undermine the effectiveness of prohibitions and frustrate enforcement where couriers or others are used and do not know the detailed identity of concealed goods.

Appeal dismissed. The House held that under section 170(2)(b) of the Customs and Excise Management Act 1979 the Crown need only prove that the goods were subject to a prohibition and that the defendant was knowingly concerned in a fraudulent evasion of that prohibition; it is not necessary to prove that the defendant knew the precise category or identity of the goods (for example that photographs were of children). The defendant remains entitled to rely on a genuine belief that the goods were not prohibited, but the jury rejected that defence in this case.

Convicted at Isleworth Crown Court; appeal to the Court of Appeal (Criminal Division) (appeal dismissed and two questions of law certified); appeal to the House of Lords ([2001] UKHL 40) which dismissed the appeal.