England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		26/07/2005

Mr Justice Stanley Burnton:

Introduction

1. This is my judgment on the preliminary issue ordered to be tried in this case, namely whether paragraph 14(a) of Schedule 3 to the Sexual Offences Act 2003 is incompatible with Article 8 of the European Convention on Human Rights.
2. In summary, the Claimant complains that the effect of that statutory provision is to subject him to the notification requirements of Part 2 of that Act applicable to those convicted of sexual offences when he has not been convicted of being a sexual offender, because when he was tried it was not proved that he intended to commit an offence that was sexual in nature.

Anonymity

3. On 9 August 2004, the Master made an order giving the Claimant permission, until further order, to remain anonymous in these (then proposed) proceedings. The Claimant was concerned that the proceedings would result in further adverse personal publicity for him. I describe the publicity as "further" because his conviction, to which I refer below, was, of course, public. Moreover, he appealed his conviction to the Criminal Division of the Court of Appeal and then to the House of Lords, and it was the subject of the decision of the latter reported as R v Forbes (Giles) [2001] UKHL 40, [2002] 2 AC 512.
4. The question whether it was right for the Claimant to remain anonymous was raised by Mr Kovats, who did not however make any submissions on it. I informed the parties that in view of the matters referred to in the previous paragraph, my provisional view was that the Claimant's anonymity could not be justified. Justice must in general be done and seen to be done in public. It follows that the identity of the parties to litigation must be public unless there is a very good reason for anonymity. Anonymity must be the exception rather than the rule. In R v Legal Aid Board, Ex p Todner [1999] QB 966, 978, Lord Woolf MR, giving the judgment of the Court of Appeal, said:

"It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings. … In general, however, parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation. The protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations. Any other approach would result in wholly unacceptable inroads on the general rule."

5. Mr Ryder candidly told me that he did not know whether the fact that the Claimant's conviction was the subject of a reported case had been drawn to the attention of the Master when he made his order. In any event, however, the order was an interim order, until further order, and he gave permission to both parties to revoke it. I stated that the Claimant's anonymity might be terminated, and he was given the opportunity to decide whether in those circumstances he wished to continue his proceedings. He decided to do so. I said that I would decide on his anonymity when I gave judgment.
6. I take account of the fact that the Claimant brought and continued these proceedings in the belief that he would remain anonymous. However, he should have appreciated that the Master's order was only an interim order, and might be set aside.
7. Given the facts set out in paragraph 2 above, there is no justification for anonymity. Moreover, in due course I shall have to refer to the decision of the House of Lords in Forbes, and it could be misleading to represent that decision as relating to someone other than the Claimant. But it should not be thought that my decision would necessarily have been different if his conviction had not been the subject of a widely reported decision.
8. Accordingly, I shall make an order discontinuing the anonymity granted by the Master's order.

The facts

9. The claim to a declaration of incompatibility raises a question of principle that is not fact specific. It is nonetheless informative to outline them as illustrative. I take them from the speech of Lord Hutton on the Claimant's appeal to the House of Lords.
10. On 23 March 1999, the Claimant was convicted of an offence under section 170(2)(b) of the Customs and Excise Management Act 1979 ("CEMA"). He had been stopped by Customs officers on his arrival at Heathrow Airport from Amsterdam, and found to be in possession of two videos. Both were labelled as films that were on general release to the public, namely "Spartacus "and "The Godfather Part 2". What in fact the videos contained, apart from the beginning of each of those films, was material the importation of which was prohibited because it depicted indecency in relation to children under the age of 16.
11. The defence was that the Claimant did not know that the videos contained indecent pictures of children. He said that he had been told that, contrary to the labelling of "Spartacus" and "Godfather Part 2", they were actually "The Exorcist" and "Kidz", which, he believed, were films prohibited in the United Kingdom. If they had been those films they would not in fact have been prohibited. He said that he had come into possession of these videos in the following way and for the following purpose: in a bar in Amsterdam he had met a man who asked him, as a favour, to take videos into the United Kingdom. The following day he collected them from that man. He was not to receive any payment for this; it was a favour. He said that he had arranged to meet the person for whom the videos, at the instigation of the man in the bar in Amsterdam, were intended, at a cinema in Notting Hill. Before he embarked on his aeroplane at Amsterdam Airport, he went to the airport shop. There he bought genuine English language videos of "Spartacus" and "Godfather Part 2", in relation to which he received receipts. Having reached Heathrow, he left those genuine English language videos in the lavatory at Heathrow. Then he went through Customs with the two Dutch language videos containing the indecent pictures and the receipt for the videos the labels of which they bore.
12. The trial judge directed the jury that it was sufficient for the prosecution to prove that the Claimant imported the videos knowing that their import was prohibited; i.e., it was unnecessary for the prosecution to prove that he knew that the videos contained indecent images of children, provided he knew that their import was prohibited. It followed that the jury could not convict him unless they rejected his evidence that he believed that the videos were videos of "The Exorcist" and "Kidz". In response to a later question from the jury, the judge directed them that it had to be shown that the Claimant was concerned in bringing in prohibited goods, and evaded the customs in doing so.
13. The Claimant's conviction was upheld both by the Court of Appeal and the House of Lords. In the House of Lords, Lord Hutton said, at [56]:

"… The offence created by section 170(2)(b) of the 1979 Act is the offence of being "knowingly concerned in any fraudulent evasion ... of any prohibition ... with respect to the goods". The essence of the offence is being knowingly concerned in the evasion of a prohibition. The jury were fully entitled to find that the behaviour of the appellant satisfied them that he was knowingly concerned in the evasion of a prohibition. His behaviour in buying genuine video films of "Spartacus" and "The Godfather Part 2" in the airport shop at Amsterdam Airport and obtaining receipts for them, leaving the genuine video films in the lavatory at Heathrow, and then producing the receipts which appeared to relate to the two video films containing indecent material, pointed quite clearly to the conclusion that he knew that he was involved in the evasion of a prohibition against importation."

14. On 18 May 1999, the Claimant was sentenced to 6 months' imprisonment. By virtue of subparagraphs (1)(e) and (2)(c) of paragraph 1 of Schedule 1 to the Sex Offenders Act 1997, the fraudulent evasion or attempted evasion of a prohibition on the importation of goods that include indecent photographs of persons under the age of 16 is a sexual offence for the purposes of section 1 of that Act. By reason of his conviction and that sentence, and the provisions of section 1 of the Sex Offenders Act 1997, the Claimant automatically became subject to the notification requirements under Part 1 of that Act for a period of 7 years from the date of his conviction.
15. The Particulars of Claim allege the following:

(a) During the time that the Claimant was in prison he was classified as a sexual offender, and was in the Vulnerable Prisoners' Unit, among prisoners who had committed sexual crimes. When he came into contact with persons outside that Unit, he was abused because he was considered to be a sexual offender.

(b) The Claimant was automatically considered for home detention curfew before the end of the sentence. However, because he was subject to the notification requirements, he was subject to a Prison Service policy that denied curfew in the absence of "exceptional circumstances". No such circumstances were found to exist in his case, as a result of which his release on home detention curfew was refused.

(c) After his release on 13 August 1999, the Claimant complied with the notification requirements. He suffered persistent distress and anxiety at the prospect of his status as a person subject to those requirements been discovered by members of the public. That was not an unreasonable or unjustified fear, having regard to the then national press campaign threatening the publication of details of sex offenders, which led to public order disturbances and violence towards people perceived to be such.

(d) In August 2001, the police sent correspondence to the Claimant referring to his status under the 1997 Act. It was sent to the wrong address. When he received that correspondence, it appeared to have been opened. He was offered the opportunity to move his address, but did not want to leave the community with which he was familiar, and declined. The possibility that his neighbours might be aware of his status caused him substantial anxiety.

(e) The Claimant is permanently anxious that his status as a person subject to the notification requirements, commonly described as "being on the sex offenders' register", will become known. He is fearful of consulting a doctor about his anxiety because any reference to his status would be noted on his medical records and remain there indefinitely.

(f) In 2003, police officers attended upon him unannounced and asked him to visit them. They have also corresponded with him. The Claimant has been informed that such police contact is in accordance with the monitoring role they undertake in relation to all persons are subject to the notification requirements. The Claimant finds these police activities intrusive and uncomfortable, and they cause him further distress and anxiety.

The legislation

16. The offence of which the Claimant was convicted was created by Section 170(2)(b) of the Customs and Excise Management Act 1979 ("CEMA"). So far as is relevant, section 170 is as follows:

"170.—(1) Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person—

(a) knowingly acquires possession of any of the following goods, that is to say—

…

(iii) goods with respect to the importation or exportation of which any prohibition or restriction is for the time being in force under or by virtue of any enactment; or

…

and does so with intent to defraud Her Majesty of any duty payable on the goods or to evade any such prohibition or restriction with respect to the goods he shall be guilty of an offence under this section and may be arrested.

(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—

(a) …;

(b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment; or

(c) …

he shall be guilty of an offence under this section and may be arrested."

17. The importation of indecent or obscene photographs and other articles is prohibited by section 42 of the Customs Consolidation Act 1876.
18. By virtue of paragraph 14 of Schedule 3 to the Sexual Offences Act 2003, which has replaced the provisions of the 1997 Act, the offence of which the Claimant was convicted is a sexual offence for the purposes of the 2003 Act if (as under the 1997 Act) the prohibited goods include indecent photographs of persons under 16.
19. For the purposes of this claim, there is no relevant difference between the effect of the Sexual Offences Acts of 1997 and 2003. As in the case of the 1997 Act, the 2003 Act automatically subjects those convicted of a sexual offence to the notification requirements of the Act. A person found not guilty by reason of insanity, or to be under a disability, but found to have done the act charged against him in respect of such an offence, and a person cautioned in respect of such an offence that he has admitted, are similarly subject to the notification requirements. Section 81 of the 2003 Act subjects persons such as the Claimant, who have been (among other outcomes) convicted of a sexual offence within the meaning of that Act to the notification requirements of the 2003 Act for the remainder of any notification period imposed under the 1997 Act. The notification requirements are set out in sections 83 to 85. A person subject to them must notify to the police his name, his home address, any other address where he regularly resides or stays, his date of birth, his National Insurance number, and any change of name or address. If the person is sentenced to imprisonment, the time for notifying the police runs from the date of his release. Statutory instruments made under section 86 impose further notification requirements in relation to foreign travel.
20. The duration of the notification requirement is specified in the Table under section 82, and varies from 2 years for a person who receives a caution to an indefinite period for a person sentenced to imprisonment for life or for a term of 30 months or more.

The parties' contentions

21. For convenience, I shall use the adjective obscene to refer to obscene depictions of persons under the age of 16. I shall use the expression "sexual offences" in its non-technical sense, to connote some knowledge or suspicion on the part of the offender of the sexual nature of the offence.
22. It is common ground that the imposition of the notification requirements engages Article 8 of the European Convention on Human Rights. Their imposition must therefore be justified under Article 8.2. That they are imposed "in accordance with the law" cannot be gainsaid. The issue is whether their imposition for the offence of which the Claimant was convicted is "necessary in a democratic society in the interests of … public safety …, or for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others". That issue raises the question whether the imposition of the requirements in a case such as the present is a necessary and proportionate response to the aim of preventing the importation of indecent photographs of children, which is itself a legitimate legislative purpose, but also, and thereby, preventing the commission of sexual offences against children and others in this country and elsewhere.
23. Mr Ryder, for the Claimant, accepts that the notification requirements would be justified in the case of a person convicted of being knowingly concerned in the fraudulent evasion of the prohibition who knew that the imported goods included indecent photographs of children. He referred to in the White Paper that preceded the 2003 Act (Strengthening protection against sex offenders and reforming the law on sexual offences, CM 5668, November 2002:

"Having this information is invaluable to the police in two ways. Firstly it helps the police monitor sex offenders living in the community. Secondly, it helps in the detection of sexual crime, since the police will immediately know the whereabouts of any number of potential suspects."

24. The Claimant's case is that the consequence of including the offence committed by him in Schedule 3 to the 2003 Act is to impose the requirements on persons who do not know that they are importing indecent photographs of children. Such persons (and the Claimant claims to be one) do not intend to commit and do not commit a sexual offence in any real sense. The Act does not discriminate between those who know what they are importing and those who do not. In failing to do so, it goes beyond what is necessary to achieve the legitimate legislative objective.
25. Mr Ryder submitted that the smuggling offence in Schedule 3 is the only offence classified as a sexual offence that may be committed by a person who has no knowledge of the sexual nature of his offending. Given that the object of notification is to prevent further sexual offending by the persons subject to the notification requirements and to facilitate their apprehension if they do commit further offences, it is unnecessary to subject to those requirements a person who did not intend to commit a sexual offence, and did not know that he was dong so.
26. Mr Ryder submitted that the availability of alternative means of achieving the legislative object pointed against the necessity to include the smuggling offence in Schedule 3 to the 2003 Act. If it were removed from the Schedule, someone like the Claimant could be charged with possession of indecent photographs of a child, the offence created by section 160 of the Criminal Justice Act 1980. It is a defence for a person charged with that offence for him to prove that he had not himself seen the photographs and did not know, nor had any cause to suspect, them to be indecent. (The offence created by section 1 of the Protection of Children Act 1978 is subject to the same defence.) Alternatively, in a case such as the Claimant's, the decision to impose the notification requirements could be given to the trial judge, who would have a power or a duty to impose it when he was satisfied that the defendant knew that he was involved in the importation of indecent photographs of children.
27. Mr Kovats pointed out that in contexts such as the present the Court must afford a wide margin of discretion to the judgement of Parliament, as expressed in the 2003 Act, in determining what offences should involve the imposition of notification requirements. I was referred to the well-known speech of Lord Hoffman in R (Prolife Alliance) v BBC [2003] UKHL 23, [2004] 1 AC 185 at [74] to [76], and to the more recent speech of Lord Bingham of Cornhill in A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 WLR 87. The harm against which the offence is aimed is the importation of indecent photographs of children. The Claimant did import such photographs. Mr Kovats referred to and relied upon article 19 of the United Nations Convention on the Rights of the Child, to which the United Kingdom is a party:

"1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child."

28. He placed great weight on the speech of Lord Hutton in Forbes at [57]:

"In many cases a person who, at the request of another and, it may be, in return for a payment, brings into the United Kingdom and article, knowing that he is taking part in the fraudulent evasion of a prohibition against importation, will not know the precise nature of the article which he is carrying. In such a case the task of the prosecution in 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, it also had to prove that he knew the precise nature of the article. In my opinion the application of the principle stated in R v Hussain [1969] 2 QB 567 gives rise to no injustice in a case such as the present one, as it is open to the defendant to seek to rely on the "Taffe defence" if his case is that he believed that he is carrying an article which in reality and contrary to his belief was not prohibited."

He contended that in view of the difficulty of proving that the person involved in importing indecent photographs of children knows that they are such, in order for the legislation to achieve its object, i.e. to deter the smuggling into this country of indecent photographs of children and to assist in the apprehension of those involved in repeated importation, the smuggling offence must be included within Schedule 3. As Lord Hutton remarked, it is in practice impossible to distinguish between those who know that they are importing indecent photographs of children from those who know merely that they are importing prohibited goods.

Discussion

29. The European Court of Human Rights considered the notification requirements in Adamson v United Kingdom (1999) 28 EHRR CD209. The Court considered, principally, whether the requirements constitute a penalty for the purposes of Article 7 or infringed the applicant's rights under Article 8. It held that they did not. It is unnecessary to refer to the passages of the judgment relating solely to Article 7.

"The Court notes that the applicant has referred to newspaper reports of vigilante attacks on paedophiles following their identification by the press and television. However, there is no evidence before it to suggest that these attacks were connected in any way with the registration of the offenders in question with the police or that the requirement to register will lead to information which is not already publicly available becoming known to the media or the general public. Again, having regard to the preamble to the Act and also to the nature of the Act's requirements, the Court considers that the purpose of the measures in question is to contribute towards a lower rate of reoffending in sex offenders, since a person's knowledge that he is registered with the police may dissuade him from committing further offences and since, with the help of the register, the police may be enabled to trace suspected reoffenders faster.

…

The Court considers that the requirement on the applicant to provide the information in question to the police amounts to an interference with his private life within the meaning of Article 8 § 1 (see, for example, with reference to the taking and retention of photographs and other data by law enforcement authorities, the Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, pp. 34-35, §§ 84-86). It is therefore necessary for the Court to examine whether it is justified under the terms of the second paragraph of Article 8.

Since the measures in question are set out in clear terms under the Act, it cannot be doubted that they are "in accordance with the law". Furthermore, the Court considers that the measures pursue legitimate aims, namely the prevention of crime and the protection of the rights and freedoms of others. It remains to be decided whether they are "necessary in a democratic society", that is, proportionate to the aims pursued.

In this connection the Court refers to its above finding that there is no evidence before it to suggest that the applicant is at particular risk of public humiliation or attack as a result of his obligations under the Act. Thus, it will examine the proportionality of the impugned measures on the basis that the interference with private life in issue in the present case extends only to the requirement to register with the police.

The Court notes that the Act requires the applicant, upon being released from prison, to inform the police of inter alia his name, any other names he uses, his date of birth and his home address, and, during an indeterminate period, to notify them of any subsequent changes of name or home address within 14 days of any change.

It is necessary to weigh against this the importance of the aims pursued by the Act. The Court has previously referred to the gravity of the harm which may be caused to the victims of sexual offences (see the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, p. 1505, § 64) and has held that States are under a duty under the Convention to take certain measures to protect individuals from such grave forms of interference (ibid., §§ 62 and 64).

Against this background, the Court does not consider that the requirement to provide information to the police can be said to be disproportionate to the aims pursued."

30. There is also the pertinent decision of the High Court of Justice in Northern Ireland in An application by Kevin Gallagher for judicial review [2003] NIQB 26. In that case the applicant had been convicted of offences of indecent assault. He contended that the notification requirements of the 1997 Act infringed his rights under Article 8. Kerr J rejected his claim. He said:

"[21] The task of deciding whether the measures are proportionate must be approached circumspectly, therefore, recognising that Parliament has determined what is required for the protection of the public from sex offenders and what is necessary to deter such offenders by having in place a system whereby their movements are monitored. In approaching this task the enactments of legislatures in other jurisdictions, while interesting as examples of alternative methods, cannot automatically provide the answer. It is trite to say that legislation should reflect the perceived needs of the particular society it is designed to serve and the experience in other jurisdictions may not be mirrored here.

[22] It is also the case that the absence of a dispensing provision whereby the applicant might apply to be relieved of the reporting requirements after a stipulated period will not render the provisions automatically disproportionate. That feature is undoubtedly relevant to the issue but it alone cannot dictate the outcome of the examination of a scheme's proportionality.

[23] It is inevitable that a scheme which applies to sex offenders generally will bear more heavily on some individuals than others. But to be viable the scheme must contain general provisions that will be universally applied to all who come within its purview. The proportionality of the reporting requirements must be examined principally in relation to its general effect. The particular impact that it has on individuals must be of secondary importance.

[24] The gravity of sex offences and the serious harm that is caused to those who suffer sexual abuse must weigh heavily in favour of a scheme designed to protect potential victims of such crimes. It is important, of course, that one should not allow revulsion to colour one's attitude to the measures necessary to curtail such criminal behaviour. A scheme that interferes with an individual's right to respect for his private and family life must be capable of justification in the sence that it can be shown that such interference will achieve the aim that it aspires to and will not simply act as a penalty on the offender.

[25] The automatic nature of the notification requirements is in my judgment a necessary and reasonable element of the scheme. Its purpose is to ensure that the police are aware of the whereabouts of all serious sex offenders. This knowledge is of obvious assistance in the detection of offenders and the prevention of crime. If individual offenders were able to obtain exemption from the notification requirements this could – at least potentially – compromise the efficacy of the scheme.

[26] By the same token the fact that the notification requirements persist indefinitely does not render the scheme disproportionate. While this is unquestionably an inconvenience for those who must make the report, that inconvenience must be set against the substantial benefit that it will achieve of keeping the police informed of where offenders are living and of their travel plans so that further offending may be forestalled both by rendering detection more easily and deterring those who might be tempted to repeat their offences."

31. In determining whether what would otherwise be an infringement of a Convention right is arbitrary or excessive, the court must ask itself:

"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

See de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80, referred to by Lord Bingham in A at [30].

32. In considering whether a legislative provision is incompatible with the Convention, the Court must have regard only to the necessary consequences of that provision. That follows from the ordinary meaning of "incompatibility" in section 4 of the Human Rights Act 1998. A provision will not be incompatible because administrative decisions or delegated legislation made under it or pursuant to it infringe Convention rights if those infringing decisions or delegated legislation are not required by the Act itself, that is to say, if the executive could lawfully (as a matter of domestic law) have made non-infringing (i.e., compatible) decisions or delegated legislation. It follows that the failure, if such there was, of the Prison Service to discriminate between the Claimant and someone who had intended to commit a sexual offence, whether in relation to the Claimant's placement in a Vulnerable Prisoners' Unit or in relation to his release on home detention curfew, is not relevant to the question I have to determine. I must focus, as did the Court in Adamson, on the statutory requirement.
33. Similarly, it seems to me that the Claimant's fears that his status as a person subject to the requirements might become public are not material. In any event, the public is entitled to know that he did in fact import indecent photographs of children, knowing that it was illegal to import what he was carrying into this country. On his own case, at best the Claimant took a risk as to the nature of the goods he smuggled into this country.
34. I also place little weight on the possibility of charging someone in the position of the Claimant with the offence of possessing indecent photographs of children. The smuggling offence may be committed by someone who is never in possession of the prohibited goods, such as someone who arranges or plays a part in arranging their importation.
35. I of course accept fully what was said by Lord Hutton in Forbes as to the difficulty of proving that an accused person knows the nature of the goods he smuggles. However, I do not consider this to be a decisive factor. What is at issue is not whether the smuggler who does not know the nature of the goods he is smuggling is innocent or guilty of an offence; it is whether that offence should necessarily render him subject to the notification requirements. The difficulty of proof is however relevant to Mr Ryder's suggestion that the imposition of the notification restrictions could be made a matter for the discretion of the trial judge, to depend on whether it is shown that the defendant knew the nature of the imported goods. On the basis of Lord Hutton's statement, that would risk nullifying the inclusion of the smuggling offence as an offence in respect of which notification requirements may be imposed, since notification requirements would not be imposed on persons who smuggled obscene material knowing it to be such in the many cases where their knowledge could not be proved.
36. Mr Kovats is right to point out that section 170(2)(b) of CEMA and section 160 of the Criminal Justice Act 1980 have different objects. The latter is concerned with obscene material that is already in this country; the former is aimed at prohibiting and thereby preventing their importation into this country. It is, I think, important to compare the effect of these provisions, and in particular of the statutory defence to the latter. A person who is in possession of obscene material does not commit an offence and cannot be made subject to the notification requirements if he can show that he did not know and had no reason to believe that the material was obscene. The requirement that he show that he had no reason to believe that the material was obscene adds significantly to the onus on a defendant. It means that a person who does not know that an article is obscene may be convicted of the offence of possession, unless he can also show that, in effect, he had no reason to suspect that the article was obscene. That is in practical terms not very far removed from requirement of an offence under section 170(2)(b) of the 1979 Act that the defendant must be shown to have known that the imported goods were prohibited. The fact, ex hypothesi known to the defendant, that the goods are prohibited and have to be smuggled into this country may prevent him from showing that he had no reason to suspect that they were obscene. In practice, very few of the persons who are guilty of the offence of being knowingly concerned in the fraudulent evasion of the prohibition of the importation of obscene material do not know or have reason to suspect what is the nature of that material.
37. A person who is convicted of an offence under 170(2)(b) of CEMA that is a sexual offence must have been aware that the goods were prohibited and, if he did not know that they were obscene, at the very least took a chance as to the nature of those goods. The rationale of the reporting restrictions is that there is a risk that someone who has offended may do so again, and that the harm done by sexual offences is so great as to justify the interference with personal liberty and integrity that they involve. In my judgment, those considerations apply equally to someone who has deliberately smuggled prohibited goods into this country that are in fact obscene, although he does not know it. Given the very great harm that the creation, importation and showing of obscene material does, in my judgment it is not disproportionate to require someone who smuggles such material to be subject to the notification requirements.
38. Accordingly, I shall answer the question posed by the preliminary issue "No".