R v Luke Steven Derwood Datson

For an offence under section 170(2) of the Customs and Excise Management Act 1979, the prosecution must prove a dishonest and deliberate evasion of an import prohibition and the accused’s knowing involvement in it. The accused must know that the goods are prohibited and that the evasion is dishonest and deliberate, but need not know the precise goods or statutory provision.

A genuine mistake of law may nevertheless be material where the offence makes knowledge of legal prohibition an ingredient. A belief that goods were not prohibited can therefore prevent proof of the required knowledge. Under section 28(3)(b)(i) of the Misuse of Drugs Act 1971, the statutory defence may be raised on an evidential basis where there is sufficient evidence that the accused did not believe, suspect, or have reason to suspect that the substance was a controlled drug.

The appellant pleaded guilty at Swansea Crown Court to two counts of being knowingly concerned in the fraudulent evasion of the prohibition on importing cannabis, and one count of possessing cannabis with intent to supply. The pleas followed a ruling that his asserted genuine belief that he was importing and possessing lawful low-THC hemp could not provide a defence.

He had maintained that he believed the material was lawfully imported hemp, rather than prohibited cannabis, and that he could rely on the statutory defence under section 28(3)(b)(i) of the Misuse of Drugs Act 1971. He received concurrent nine-month sentences, suspended for 12 months.

The Court of Appeal granted an extension of time and leave, then determined whether the trial judge had correctly construed section 170(2) of the Customs and Excise Management Act 1979 and the statutory defence.

1. Appeal allowed. The guilty pleas were compelled by adverse and erroneous rulings which left the appellant with no arguable defence. All three convictions were quashed. There was no application for a retrial because the operational period of the suspended sentences had expired without further offending.

2. Section 170(2) requires proof that the goods were subject to an import prohibition, that there was a fraudulent evasion, that the accused was concerned in it, and that the involvement was knowing. A fraudulent evasion is dishonest and deliberate. The accused must know that the goods were prohibited and that the evasion was dishonest and deliberate. Knowledge of the precise category of goods, or of the detailed statutory source of the prohibition, is unnecessary. The judge was bound by Attorney-General’s Reference (No. 1 of 1981) [1982] QB 848 and R v Panayi (No. 2), R v Karte (1989) 1 WLR 187 on the meaning of “fraudulent”. R v Latif, R v Shahzad [1996] 1 WLR 104 did not displace that construction.

3. The offence makes knowledge of prohibition material. Accordingly, a genuine belief that goods were not subject to a prohibition, even if that belief involved a mistake of law, can prevent the prosecution proving an essential ingredient. The judge wrongly treated R v Taaffe as establishing a general rule that the appellant’s mistake of law was irrelevant. In Taaffe, the supposed importation of currency would not itself have been criminal; its reasoning did not preclude this appellant from advancing his asserted belief.

4. The judge also erred on section 28(3)(b)(i) of the Misuse of Drugs Act 1971. The provision can apply where there is sufficient evidence that the accused did not believe, suspect, or have reason to suspect that the substance was a controlled drug. The burden is evidential, not persuasive. The trial judge could assess, after all the evidence, whether the issue should be left to the jury; but the appellant was entitled in law to seek to raise it.

• Court of Appeal (Criminal Division) — Granted an extension of time and leave to appeal, allowed the appeal, and quashed all convictions: [2022] EWCA Crim 1248.
• Swansea Crown Court — Following an adverse ruling on the availability of the proposed defences, the appellant pleaded guilty to two importation offences and possession of cannabis with intent to supply. He received concurrent nine-month sentences, suspended for 12 months.