Nurse v Republic of Trinidad and Tobago

Statutory criminal offences are presumed to require proof that the defendant knew the facts constituting each ingredient. The presumption is displaced only by clear words or necessary implication. In regulatory customs legislation, strict liability may nevertheless be intended where it promotes compliance with an important public regulatory scheme and defendants can reduce the risk of contravention through vigilance, supervision or inspection. Applying Sweet v Parsley [1970] AC 132 and Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1, the Board held that sections 212(a), 213(a) and 214 of the Customs Act imposed strict liability as to mistaken belief about the goods or declaration. The offences were not wholly absolute. Mens rea remained necessary for other elements.

These conjoined appeals concerned Darren Nurse and Canserve Ltd, who were charged under sections 212(a), 213(a) and 214 of the Customs Act after a container declared to contain office furniture was found to contain gaming machines and parts.

The Magistrate found no case to answer. The Court of Appeal allowed the prosecution appeal and ordered a retrial, holding that the relevant offences imposed strict liability and rejecting a Canadian-style halfway-house defence. The Privy Council granted permission to appeal on strict liability and, if necessary, the attribution of Mr Nurse’s acts to Canserve. The central issue was whether the prosecution had to prove knowledge of the falsity of the declaration or of the nature of the imported goods.

1. Disposition. The Board dismissed Mr Nurse’s appeal and remitted the case for retrial in accordance with the Court of Appeal’s directions. Canserve’s separate appeal did not require determination because it accepted liability if the relevant offence was one of strict liability.
2. Mens rea presumption. Applying Sweet v Parsley [1970] AC 132 and the principles summarised in Gammon (Hong Kong) Ltd v Attorney General of Hong Kong [1985] AC 1, the Board held that mens rea is presumed in relation to every ingredient of a statutory criminal offence. Silence about mens rea, and the use of express mens rea language elsewhere in the same legislation, do not by themselves create strict liability or displace the presumption. The narrower approach in Patel v Comptroller of Customs [1966] AC 356 was not followed for the future construction of similar provisions.
3. Regulatory context. The court must consider the statutory wording and scheme, the character of the mischief, the penalties and stigma of conviction, the public interest in compliance, and whether defendants can prevent contraventions by supervision, inspection or improved business practices. Although the penalties were severe, customs regulation depended on accurate self-assessment and importers could take preventive steps. The public interest in deterring false or careless declarations therefore rebutted the presumption.
4. Application. Sections 212(a), 213(a) and 214 imposed strict liability as to the relevant mistaken belief about the falsity of a declaration, the nature or prohibited character of imported goods, and correspondence with the declaration. They did not impose absolute liability: mens rea remained necessary for other elements, including knowledge that the document being made was a customs declaration. The same conclusion applied notwithstanding the heavier penalties under sections 213(a) and 214.
5. Unresolved matters. Once the statutory offences provided no scope for reliance on mistaken belief, no separate common-law defence arose. The Board declined to decide the Canadian halfway-house due-diligence approach, and expressed no view on whether adopting it was a matter for Parliament. It also left undecided the meaning of “calculated to deceive” in section 214. Obiter, forfeiture was regarded as a consequence of conviction which shed no light on the mens rea question.

1. Privy Council: In Nurse v Republic of Trinidad and Tobago [2019] UKPC 43, the Board dismissed the appeal on strict liability and remitted the case for retrial.
2. Court of Appeal of the Republic of Trinidad and Tobago: On 29 June 2017, allowed the prosecution appeal against the Magistrate and ordered a retrial. It held that the relevant offences were offences of strict liability and rejected the halfway-house argument.
3. Magistrate: Found no case to answer, holding that mens rea was required and that the prosecution evidence did not establish the necessary knowledge.