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Rob R. Jerrard
Importing Indecent Photographs: Knowledge of Ban is Sufficient for Guilt
Regina v Forbes (Giles)
House of Lords (2001) The Times, 20 July
Knowingly concerned in a fraudulent evasion of a prohibition on the importation of goods; importing indecent photographs; Customs Consolidation Act; The Protection of Children Act 1978
The statutes
Section 42 of the Customs Consolidation Act 1876 provides:
The goods enumerated and described in the following table of prohibitions and restrictions inwards are hereby prohibited to be imported or brought into the United Kingdom, ... Goods prohibited to be imported
Indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles.
The provision that reinforces these prohibitions and restrictions by subjecting their evasion to a criminal sanction is to be found in s. 170(2) of the Customs and Excise Management Act 1979, as amended by s. 114(1) of the Police and Criminal Evidence Act 1984, which provides:
(2) Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion -
(b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment;
he shall be guilty of an offence under this section and may be arrested.
It is an offence at common law to publish an obscene libel, but the Obscene Publications Act 1959, s. 2(4), provides that:
- (1)Subject as hereinafter provided, any person who, whether for gain or not, publishes an obscene article or who has an obscene article for publication for gain (whether gain to himself or gain to another) shall be liable .. .
The Protection of Children Act 1978, s. 1 states:
(1) It is an offence for a person
(a) to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child . . or
(b) to distribute or shoot: such indecent photographs or pseudo-photographs; or
(c) to have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others; or
(d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.
(2) For purposes of this Act, a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person.
The Criminal Justice Act 1988, s. 160 states:
(1) It is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.
(2) Where a person is charged with an offence under subs. (1) above, it shall be a defence for him to prove
(a) that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or
(b) that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent; or
(c) that the photograph or pseudo-photograph was sent to him with any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.
The facts
Forbes claimed that while on a holiday in Amsterdam he had been asked by a stranger to bring two video films to London, The Exorcist and Kidz, which he believed, mistakenly, to be prohibited in the United Kingdom; that before departure he had purchased Spartacus and The Godfather Part II from the foreign airport shop, had discarded those films on arrival, substituting in their packages the two videos he brought and producing receipts for the genuine films to customs officials.
The only defence he advanced at trial, based on R v Taaffe [1984] AC 539; [1984] 1 All ER 747 was that he believed he was carrying two prohibited films but that, in reality, those films were not prohibited and accordingly he was not knowingly concerned in the fraudulent evasion of a prohibition on importation under the 1876 and 1979 Acts. (In R v Taaffe the respondent smuggled a controlled drug into the United Kingdom intending fraudulently to evade a prohibition on importation, but he mistakenly believed the goods to be currency and not drugs and that the importation of currency was prohibited. He was charged under s. 170(2) of the Customs and Excise Management Act 1979 with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug imposed by s. 3(1) of the Misuse of Drugs Act 1971. At his trial the judge ruled that even on the respondent's version of events he was obliged to direct the jury to convict the respondent because the respondent believed he was importing prohibited goods even though he did not know the precise nature of the goods. The respondent was convicted. He appealed against his conviction to the Court of Appeal, which allowed his appeal and quashed his conviction on the ground that the requisite mens rea for an offence under s. 170(2) was actual knowledge and since the defendant believed that the substance he was importing was currency, the importation of which was not a criminal offence, his mistake of law did not convert the importation into a criminal offence. The Crown appealed to the House of Lords.
Held - When the state of an accused person's mind and his knowledge were ingredients of the offence with which he was charged, he had to be judged on the facts as he believed them to
be. Accordingly, since the respondent mistakenly believed that by clandestinely importing currency he was committing an offence, his mistake of law could not convert his actions into the
criminal offence of being 'knowingly concerned' in the importation of a controlled drug within s. 170(2) of the 1979 Act since he had had no guilty mind in 747 respect of that offence. It followed therefore that the appeal would be dismissed. R v Hussain [1969] 2 All ER 1117 approved, R v Hennessey (Timothy) (1978) 68 Cr App R 419 doubted.
(Decision of the Court of Appeal [1983] 2 All ER 625 affirmed.)
The law
Lord Hutton said that in considering the application of s. 42 it was necessary to have regard to the legislation in England relating to obscene photographs and to indecent photographs of young persons under the age of 16.
The Obscene Publications Act 1959 made it an offence to publish an obscene photograph of a person, whether adult or a young person; the Protection of Children Act 1978 made it an offence to have possession of an indecent photograph of a young person under 16. His Lordship referred to the acceptance by the commissioners that, in relation to importation from a member state of the European Union, s. 42 prohibited the importation of indecent photographs of young persons under 16, but not of adults if the photographs were not obscene: see Conegate Ltd v HM Customs and Excise (Case 121/85) (1987) QB 254; and to the defendant's acceptance at trial that the films were of young persons under 16 and that he did not dispute that their importation was prohibited by s. 42. His Lordship said that in the present case once the jury had rejected the Taaffe defence the only issue for them to decide was whether the defendant knew that the goods that he was carrying were subject to a prohibition.
The judge correctly directed them that that was the issue they had to decide. He also correctly told them that the prosecution had to satisfy them that, 'by his behaviour, and the situation which you will find as a fact, [the defendant] knew he was bringing in prohibited photographs'.
The Court of Appeal had dismissed his appeal in reliance on the judgment of Lord Justice Widgery in R v Hussain [1969] 2 QB 567, 57. The principle there stated in relation to knowledge contained two parts: the first, that the prosecution had to prove that the defendant knew the goods that he was carrying were subject to a prohibition; the second, that if the prosecution
proved such knowledge it was not necessary to prove that he knew what kind of goods he was carrying.
The issue for the jury became blurred if they were required to consider the knowledge of the defendant as to the kind or category of goods he was carrying.
In his submissions to the House, Counsel for the defendant had relied on the distinction between three types of indecent photograph which he categorised as:
(a) an obscene photograph within the meaning of s. 1 of the 1959 Act which had a tendency to deprave or corrupt;
(b) an indecent photograph of a person under 16 which contravened s. 1 of the 1978 Act; and
(c) an indecent photograph which was neither obscene nor an indecent photograph of a child, which contravened neither statute.
Relying on the point that there was a prohibition on the importation of photographs in categories (a) and (b) but not with regard to category (c) he had submitted that those differences had been further emphasised by the Sex Offenders Act 1997 which distinguished between child and adult pornography so that the importer of adult pornography did not commit a sexual offence and was therefore not required to notify the police of his name and address, whereas an importer of child pornography did commit such an offence and was so required.
Counsel for the defendant submitted that in the present type of case a direction based on the judgment in R v Hussain created an injustice because:
1. A defendant who believed, or might have believed, that he was importing a photograph in category (c) would be guilty of an offence;
2. A jury was prevented from determining a defendant's actual knowledge of the facts;
3. It resulted in the conviction of a defendant whose knowledge of the prohibited import was 'approximate' as opposed to 'actual';
4. It resulted in the conviction of a person who knew that the goods were 'indecent' being deemed to know that they were within only categories (a) and (b);
5. It required a jury to cease deliberations when they were sure that the defendant knew that he had indecent material in his possession whereas, if they were allowed, they
might further conclude that he believed that he was importing material in category (c);
6. The 1997 Act made a distinction between the importation of adult and child pornography and imposed more onerous sanctions for the latter.
His Lordship could not accept those submissions. The essence of the offence created by s. 170(2)(b) of the Sex Offenders Act 1997 was being knowingly concerned in the evasion of a prohibition. The jury were fully entitled to find that the defendant's behaviour at the two airports satisfied them that he was.
In many cases a person who, at the request of another and, it might be, in return for a payment, brought into the United Kingdom an article, knowing that he was taking part in the fraudulent evasion of a prohibition against importation, would not know the precise nature of the article he was carrying. In such a case the task for the prosecution of proving an offence would be virtually impossible if, in addition to having to prove that the article was a prohibited one and that the defendant knew that he was involved in the evasion of a prohibition, the prosecution also had to prove that he knew the precise nature of the article.
Application of the Hussain principle gave rise to no injustice in a case such as the present, as it was open to the defendant to seek to rely on the Taaffe defence if his case was that he believed he was carrying an article that in reality and contrary to his belief was not prohibited.
His Lordship also rejected counsel for the defendant's alternative argument that in the present case a strict application of Lord Justice Widgery's words, the defendant must know 'that the goods are subject to a prohibition', meant that the prosecution had to prove he knew that the photographs fell into either category (a) or category (b). There was no reason to qualify those words and it was sufficient that the prosecution proved the defendant knew that he was involved in the evasion of a prohibition. He would dismiss the appeal.
THE DECISION
On a prosecution for an offence of being in any way knowingly concerned in a fraudulent evasion of a prohibition on the importation of goods, it was sufficient for the prosecution to establish that the defendant knew he was importing goods subject to a prohibition and the operation on which he was engaged was an evasion of that prohibition. It was not necessary
for the prosecution also to prove that the defendant knew the precise nature of the goods he imported.
The House of Lords so held when dismissing an appeal by the defendant, Forbes, from the dismissal by the Court of Appeal ((2000) The Times: 4 April) of his appeal against his conviction at Crown Court of fraudulent evasion of the prohibition on the importation of indecent photographic material of children contrary to s. 42 of the Customs Consolidation Act 1876 and under s. 170(2)(b) of the Customs and Excise Management Act 1979. Forbes was stopped at Heathrow Airport on his arrival from Amsterdam in possession of two videos labelled Spartacus and The Godfather Part II which were films on general release. In fact, after beginning as the labels indicated, the videos continued with footage of indecent photographs of teenage boys under 16, the importation of which was prohibited.
Comment
There have been a number of cases on the Protection of Children Act 1978 of which we can remind ourselves. In R v Bowden (1999) The Times, 19 November, Court of Appeal it was held that downloading indecent Net images is 'making' photographs.
The facts of Bowden On the agreed facts, the exhibits referred to in the indictment were: printouts seized from the defendant, which had been made by his viewing on his screen a photograph received via the Internet and then instructing his computer to print one paper copy of that photograph; a printout made by the police of a pseudo-photograph stored in a data file computer disk seized from the defendant; and printouts made by the police of photographs stored in data files on computer disks seized from the defendant. Those data files were downloaded by the defendant from the Internet and stored by him on his own computer disks.
Bowden submitted through counsel that he was not guilty of `making' photographs contrary to the section; he was in possession of them but nothing more. The trial judge rejected those submissions and Bowden pleaded guilty.
Lord Justice Otton said that s. 1 of the 1978 Act was designed to deal with aspects of child pornography above and beyond simple possession. In its original form, the verb used in s. 1(1)(a) was to 'take'. In 1988, by s. 160 of the Criminal Justice Act, the possession of indecent photographs became a summary offence. By 1990, society had become concerned that the law
was inadequate to deal with the less desirable developments in computer technology. As a result Part VII of the Criminal Justice and Public Order Act 1994 was enacted to amend particulars of existing legislation: see s. 84 of that Act.
Similar amendments were made to s. 160 of the 1988 Act by s. 86(1) of the 1994 Act: see R v Fellows and Arnold (1997) 2 All ER 548, (1997) 1 Cr App R 244. In his Lordship's judgment, s. 1 of the 1978 Act as amended was clear and unambiguous in its true construction. Quite simply, it rendered unlawful the making of a photograph. There was no definition section. Accordingly, the words 'to make' were to be given their natural and ordinary meaning. In context, that was 'to cause to exist; to produce by action, to bring about': Concise Oxford English Dictionary (9th edn (1995), 823). As a matter of construction such a meaning applied not only to original photographs but by virtue of s. 7 also to negatives, copies of photographs and data stored on computer disk.
His Lordship accepted the Crown counsel's submissions that a person who either downloaded images on to a disk or printed them out was making them. The 1978 Act was not only concerned with the original creation of images, but also their proliferation. Photographs or pseudo-photographs found on the Internet might have originated from outside the United Kingdom but to download or print within the jurisdiction was to create new material which hitherto might not have existed therein.
Accordingly, his Lordship concluded that, despite the fact the defendant had made the photographs or pseudo-photographs for his own use, his conduct was clearly caught by the Act.
The decision in R v Bowden was that downloading and/or printing computer data of indecent images of children from the Internet was capable of amounting to an offence contrary to s. 1(1)(a) of the Protection of Children Act 1978. The Court of Appeal so held in dismissing an appeal by Bowden against his conviction at Crown Court, but allowing his appeal against sentence of four months' imprisonment, of offences contrary to s. 1(1)(a) of the 1978 Act, after pleading guilty, following unsuccessful submissions, to counts of having 'made an indecent photograph'.
The four-month sentence, which had been ordered to be served concurrent to a prison sentence of three months for possessing an indecent photograph of a child under the age of 16 contrary to s. 160 of the Criminal Justice Act 1988, was reduced to a 12-month conditional discharge.
Downloading in R v City of London Magistrates' Court and Another, Ex p. Green (1997) The Times, 13 March, the Queen's Bench Divisional Court defined 'Download'. To 'download' a computer meant to 'transfer (data) from one storage device or system to another' in accordance with the definition contained in the Concise Oxford Dictionary of Current English (9th edition (1995). See also the case of R v Fellows R v Arnold mentioned in this judgment.
On a similar vein it has also been held that it is no offence to show indecent film of a child only to oneself, see R v T 163 JPN 349; (1999) The Times, 12 February, Court of Appeal.
The case of R v Hussain [1969] 2 All ER 1117 was mentioned. in that case, the word 'knowingly' in s. 304(b) of the Customs and Excise Act 1952 was concerned with knowing that a fraudulent evasion of a prohibition in respect of goods was taking place. If, therefore, an accused knows that what is on foot is the evasion of a prohibition against importation and he knowingly takes part in that operation, that is sufficient to justify his conviction, even if he does not know precisely what kind of goods are being imported. 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. Warner v Metropolitan Police Comr [1968] 2 All ER 356, [1968] 2 WLR 1303 was mentioned in that judgment.