LADY ARDEN:
The issues and the basic principles
1.
This appeal is primarily about the mental element or mens rea, in the
sense of awareness or belief, as to the nature of the relevant goods required
for the commission of certain statutory importation offences. It raises the
question whether on the true interpretation of the legislation, an essential
ingredient of such offences is an individual declarant’s actual knowledge or
belief in the falsity of a customs declaration, or the fact that the goods
imported in a sealed container constitute goods of another description the
importation of which is prohibited. There is a separate question about the
criminal liability of that individual’s employer.
2.
The correct approach to the interpretation of legislation of any kind
when an issue arises as to the mental element for an offence is very well
established. The courts presume that Parliament intended that the prosecution
should have to show that the defendant knew the ingredients of the offence, and
that presumption is not displaced with respect to any such ingredient unless
there is clear wording to that effect or it is necessarily implicit in the
language of the statute that it is displaced. Many authorities support this
approach. The Board considers that the five-point summary of the law given by
Lord Scarman, giving the advice to Her Majesty, in Gammon (Hong Kong) Ltd v
Attorney General of Hong Kong [1985] AC 1, which also addresses regulatory
offences, sets out the relevant fundamental principles conveniently and with
great clarity:
“In
their Lordships’ opinion, the law relevant to this appeal may be stated in the following propositions (the
formulation of which follows closely the written submission of the appellants’ counsel, which their
Lordships gratefully acknowledge): (1) there is a presumption of law that mens
rea is required before a person can be held guilty of a criminal offence; (2)
the presumption is particularly strong where the offence is ‘truly criminal’ in
character; (3) the presumption applies to statutory offences, and can be displaced only if this
is clearly or by necessary implication the effect of the statute; (4) the only
situation in which the presumption can be displaced is where the statute is
concerned with an issue of social concern, and public safety is such an issue; (5) even where a
statute is concerned with such an issue, the presumption of mens rea stands
unless it can also be shown that the creation of strict liability will be
effective to promote the objects of the statute by encouraging greater
vigilance to prevent the commission of the prohibited act.” (p 14)
3.
Lord Scarman’s summary distinguishes regulatory offences from other
offences, particularly offences described in earlier authorities as “truly
criminal” offences. Importation offences fall into the broad category of
regulatory offences. Regulatory offences relate to social concerns and help to
regulate the way in which people behave in relation to the matters which affect
the smooth running of society, such as the payment of tax or avoidance of
pollution and so on.
Summary of what has happened in this case
4.
In June 2009, Canserve imported a container into Trinidad and Tobago.
When it arrived in port, Canserve provided a customs declaration for the goods.
This was a customs form no C75 revised and was signed by Mr Darren Nurse (“Mr
Nurse”), Canserve’s building manager, and was dated 23 June 2009. It verified
the details of the goods to which the declaration related; in particular it
described the goods and their invoice value. The goods consisted of 20 desks,
100 filing cabinets, 45 bookshelves and 40 installation kits and the invoice
price was US$18,881. A customs clerk, Mr Larry Howell, certified that this was
the only invoice involved in the relevant transaction. Canserve was the named
consignee of the goods.
5.
Mr Nurse also signed an application dated 26 June 2009 for permission to
remove the container from the port to Canserve’s premises before the customs
examination took place. He undertook to ensure that the container was kept
sealed.
6.
Customs officials inspected the container on 10 July 2009.
One of those present was Mr Andrews of CARIRI, the Caribbean Industrial
Research Unit, who attended on behalf of Canserve. One of the customs officers
asked Mr Andrews why he was there. He replied that someone from Canserve had
asked him to attend. At that point the customs officer asked Mr Nurse, who was
also present: “Why you have CARIRI here if you are all expecting office
furniture?” There was no answer. This evidence was not challenged. The customs
inspection revealed that the container contained 51 gaming machines, 13 boxes
of parts and other associated items. Gaming machines are prohibited from
importation and the declaration was clearly incorrect.
7.
On 15 March 2010, Mr Lennox Nunez of CARIRI inspected two of the
machines and found that there was a software limitation or circuit fault that
inhibited the operation of the gaming machines. Subject to that, it would seem
to be a reasonable inference (as there appears to be no direct evidence in the
documentation before the Board) that the gaming machines actually imported were
worth more than the desks and other items described in Mr Nurse’s declaration.
8.
Three criminal charges were laid against Canserve and Mr Nurse:
i)
making and subscribing a false declaration in a customs declaration
value contrary to section 212(a) of the Customs Act Chapter 78:01 (“the Customs
Act”);
ii)
importing, contrary to section 213(a) of the Customs Act, goods which
were prohibited under the second schedule of the Prohibition (Carriage
Coastwise, Importation and Exportation) Order; and
iii)
importing goods not corresponding with a customs declaration contrary to
section 214 of the Customs Act.
9.
Sections 212 to 214 are set out in the Appendix to this judgment.
The previous judgments in this case
(1) Following
trial before the Magistrate
10.
Trial took place before the Magistrate, Her Worship Mrs Luna Cardenas
Ragoonanan. The Magistrate held that there was no case to answer against Mr
Nurse and Canserve. The machines did not work and so they did not come within
the prohibition against importation within the meaning of the Customs Act.
Therefore section 213(a) could not be infringed. As to section 214, the
Magistrate held that the prosecution had to prove mens rea and therefore to
show that Mr Nurse knew that the items in the container did not correspond with
the declaration. However, the declaration did not list the items in the
container and the prosecution had little further to show that Mr Nurse or
Canserve knew what was in them. As to section 212(a), only Mr Nurse was
connected to this and not Canserve, and so there was no case for Canserve to
answer on this charge. As to Mr Nurse, the prosecution had failed to show that
Mr Nurse had signed the document knowing it to be false.
(2) Following
an appeal to the Court of Appeal
11.
On 29 June 2017, the Court of Appeal allowed an appeal against the
decision of the Magistrate and ordered a re-trial.
12.
The Court of Appeal held that the offence created by section 212(a) of
the Customs Act was one of strict liability and that the prosecution did not
have to show that the declarant knew that the declaration was false in any
respect. The Court of Appeal also held that the Magistrate erred in holding
that the goods were not prohibited goods if they could not be made to work. As
to section 212(a), there was sufficient evidence of falsity and the offence was
one of strict liability. The Court of Appeal followed the decision of the Board
in Patel v Comptroller of Customs [1966] AC 356. In that case, the Board
on an appeal from Fiji, held that the offence of making a false customs
declaration contrary to section 166 of the Fiji Customs Ordinance did not
require knowledge and so a person could innocently make a false entry.
13.
As to section 213(a) and section 214, the Court of Appeal again held
that both offences were of strict liability. It ruled that Customs and
Excise Officer Walker v Feese (Magisterial Appeal No 96 of 2009) (unreported)
10 May 2011 was wrong to the extent it suggested otherwise, and it upheld its
previous decision in De Gale v United Hatcheries Ltd (Magisterial Appeal
No 155 of 1986) (unreported) 15 July 1992.
14.
In the course of the hearing, the Court of Appeal asked the parties to
make further submissions on the intermediate approach adopted in Canada, known
as the “halfway house”, which had been raised by the appellants’ submissions.
The appellants argued that on a proper construction of the three relevant
sections, it was open to the defendants to defeat the charges by giving
evidence that they acted in an honest and reasonable mistake in doing what they
did. The Court of Appeal held that the halfway house argument ought not to be
adopted in Trinidad and Tobago because (as applied in Canada at least) it
sought to impose a reverse burden on a defendant to prove that he took all
reasonable care, and because that was a matter for Parliament and not the
courts.
15.
On 15 May 2018, the Board gave the appellants permission to appeal on
the strict liability issue, and attribution if it arises. By “attribution” is
meant the allocation of responsibility to Canserve for the allegedly unlawful
acts of Mr Nurse.
16.
On the strict liability issue, Mr Peter Carter QC, for the appellants,
submits that the Court of Appeal was wrong to conclude that sections 212(a),
213(a) and 214 of the Customs Act created offences of strict liability. On his
case, section 212(a) requires proof of knowledge that the customs declaration
was false, section 213(a) requires proof that the defendants knew that they
were importing the particular goods alleged, and that these goods were
prohibited from importation, and section 214 requires proof of knowledge that
the goods imported did not correspond to the relevant customs declaration. Mr
Peter Knox QC, for the respondent, seeks to uphold the decision of the Court of
Appeal.
17.
Mr Knox makes the initial point that the appellants must have known that
the goods were prohibited as their only defence before the Magistrate was that
the machines did not work. However, he accepts that that is not the way the
appeal proceeded in the Court of Appeal nor did his arguments as developed turn
on this point. The Board proposes to proceed by addressing the arguments that
were developed before it.
Discussion
The leading case - Sweet v
Parsley - and the relevant points it decided
18.
The leading case on determining whether a statutory offence requires
mens rea is now Sweet v Parsley [1970] AC 132. The Board has already set
out a summary of the relevant principles from the speech of Lord Scarman in Gammon,
which is drawn from Sweet v Parsley. The prosecution in Sweet v
Parsley was of a teacher who rented a house to students and who was
prosecuted for being in control of the management of premises used for smoking
cannabis at the premises, which had occurred without her knowledge. The House
of Lords held that, applying the presumption that
mens rea is required before a person can be held guilty of a criminal offence to
the statutory provision in question, the requirements of the offence were not
satisfied in those circumstances.
19.
A key point in Sweet v Parsley is that the House of Lords held
that, in cases of difficulty over the mens rea required by any statutory
offence, the courts must apply the presumption that Parliament intended that a
criminal offence should require mens rea in relation to every element of the
actus reus for that offence. Lord Reid expressed the point in the following way
at pp 148-149:
“Sometimes the words of the
section which creates a particular offence make it clear that mens rea is
required in one form or another. Such cases are quite frequent. But in a very
large number of cases there is no clear indication either way. In such cases
there has for centuries been a presumption that Parliament did not intend to
make criminals of persons who were in no way blameworthy in what they did. That
means that whenever a section is silent as to mens rea there is a presumption
that, in order to give effect to the will of Parliament, we must read in words
appropriate to require mens rea.
Where it is contended that an
absolute offence has been created, the words of Alderson B in Attorney General
v Lockwood (1842) 9 M & W 378, 398 have often been quoted:
‘The rule of law, I take it, upon
the construction of all statutes, and therefore applicable to the construction
of this, is, whether they be penal or remedial, to construe them according to
the plain, literal, and grammatical meaning of the words in which they are
expressed, unless that construction leads to a plain and clear contradiction of
the apparent purpose of the Act, or to some palpable and evident absurdity.’
That is perfectly right as a
general rule and where there is no legal presumption. But what about the
multitude of criminal enactments where the words of the Act simply make it an
offence to do certain things but where everyone agrees that there cannot be a
conviction without proof of mens rea in some form? This passage, if applied to
the present problem, would mean that there is no need to prove mens rea unless
it would be ‘a plain and clear contradiction of the apparent purpose of the Act’
to convict without proof of mens rea. But that would be putting the presumption
the wrong way round: for it is firmly established by a host of authorities that
mens rea is an essential ingredient of every offence unless some reason can be
found for holding that that is not necessary.”
20.
The presumption that any criminal offence should involve mens rea is a
totally fundamental point. Lord Pearce held at p 156:
“The notion that some guilty mind
is a constituent part of crime and punishment goes back far beyond our common
law.”
21.
Lord Reid continued:
“Our first duty is to consider the
words of the Act: if they show a clear intention to create an absolute offence
that is an end of the matter. But such cases are very rare.”
22.
Although absolute offences would be rare, in the judgment of Lord Morris
of Borth-y-Gest:
“The question must always be -
what has Parliament enacted?” (p 153)
23.
Lord Morris answered that question as follows:
“[t]he inquiry must be made … whether
Parliament has used words which expressly enact or impliedly involve that an
absolute offence is created.” (p 153)
24.
So there is a high hurdle to be overcome by the prosecution when it
asserts that an offence is one of strict liability that does not require a
mental element in relation to any particular ingredient of the actus reus. It
must rebut the presumption that mens rea is required, and so clear words will
be needed. But the presumption enunciated in Sweet v Parsley is
nonetheless one that can be rebutted.
25.
On the present appeals, the Court of Appeal, in determining whether
knowledge was required by section 212(a) relied on the advice of the Board in Patel,
given by Lord Hodson. The relevant part of the advice in that case was as
follows:
“It is to be observed that section
116 itself contains a number of offences set out consecutively and joined by
the conjunction ‘or’. It is sufficient to say that some of these would plainly
require to be construed so that no offence would be constituted unless mens rea
were established. For example, the words
‘should any person counterfeit,
falsify or wilfully use when counterfeited or falsified any document required
by or produced to any officer of customs.’
would not in their Lordships’ view
be satisfied in the absence of proof of mens rea. It does not, however, follow
that all the phrases in the section must be read in the same way, and the
making of a false entry may well be in this as in other similar statutes
relating to customs absolutely
prohibited within the exceptions to the general rule applicable to statutes
creating criminal offences.
The distinction must be a narrow
one in considering the various parts of the section if the conclusion is
correct that one cannot ‘falsify’ without a guilty mind but that one can
innocently make a ‘false’ entry. Notwithstanding the narrowness of the
distinction their Lordships are of opinion that this difficulty must be faced.
On behalf of the appellant reliance
was placed on the minimum penalty of £50 provided by the section as an
indication that proof of mens rea must be required. No doubt this is a relevant
consideration but it is to be noted that in other similar statutes a standard
penalty of £100 is fixed and has not been held to have imported the necessity
of proof of mens rea. …
In these cases the language of
Wright J in Sherras v De Rutzen [1895] 1 QB 918, 921 has often been
considered and serves as a useful guide to the proper construction of the statutes
under consideration. He says:
‘There is a presumption that mens
rea, an evil intention, or a knowledge of the wrongfulness of the act, is an
essential ingredient in every offence; but that presumption is liable to be
displaced either by the words of the statute creating the offence or by the
subject-matter with which it deals, and both must be considered.’
Their Lordships have not
overlooked the judgment of the board in Lim Chin Aik v The Queen. That
case concerned the presumption that mens rea is an essential ingredient in
every offence and was much relied upon by the appellant, but their Lordships
find nothing in the judgment of the board delivered by Lord Evershed to lead
them to the conclusion that a construction should be placed upon section 116
which involves the addition by implication of the word ‘knowingly’ before the
words ‘make any false entry’.
They are of opinion that the
decision of the learned judge in giving the opinion of the Supreme Court as to
the meaning to be assigned to the word ‘false’ is correct and that on this
point the appeal would fail, since the offence of which the appellant was
convicted was absolute and no proof of mens rea was required.” (pp 363-365)
26.
The Court of Appeal concluded that, largely because section 212(a) did
not include the word “knowingly”, section 212(a) imposed strict liability. Patel
was cited in argument in Sweet v Parsley but not referred to in the
speeches of the House of Lords. The reasoning in Patel is somewhat
shorter than in Sweet v Parsley, and the Board in Patel relied to
a large extent on the actual wording of the relevant provision. By contrast in Sweet
v Parsley the House examined not just the wording but also the inherent
improbability of Parliament having intended to create an offence of strict
liability. The presumption that Parliament intends that every offence should
require knowledge of the main ingredients of the offence was regarded as of
high importance, and the absence of the word “knowingly” in the offence was not
regarded as enough to displace the presumption. The Board observes that the
offence in issue in Patel was similar to section 212(a). While the
reliance of the Court of Appeal on Patel was very understandable, these
appeals give the Board the opportunity of holding that in future courts should
follow the wider approach in Sweet v Parsley.
Importance of statutory interpretation
27.
The Board must, therefore, examine each of the statutory provisions
underpinning the charges. It must apply the presumption enunciated in Sweet
v Parsley. The Board must determine whether Parliament intends a defendant
to be criminally liable even if he does not know that he has in fact imported,
or made a declaration about, prohibited goods in the mistaken belief that they
are goods of a different category from both prohibited goods and the goods
actually imported.
28.
Knowledge of any element of the offence is not expressly required by
sections 212 to 214 save in two respects. First, section 212(d) uses the words
“counterfeits, falsifies or wilfully uses, when counterfeited or falsified”,
which involve a requirement of knowledge of the falsity (see Patel v
Comptroller of Customs [1966] AC 356 at 363). Second, subsections (c), (d)
and (e) of section 213 use the word “knowingly”.
29.
Section 214 uses the words “calculated to deceive.” The Court of Appeal
did not consider the meaning of this expression (see judgment of Mohammed JA,
at para 56). The parties are not agreed as to its meaning and have not referred
us to the relevant authorities on it. However, as explained above, where a
single statutory provision or set of statutory provisions creates a number of
offences, some may be interpreted as requiring mens rea and some may not.
Accordingly, this point does not affect the disposition of the issues within the
scope of this appeal.
30.
What is the impact of these express indications as to mens rea on
offences within sections 212 to 214 for which there is no statement as to the
mens rea required in the relevant respect? Lord Reid observed in Sweet v
Parsley that the mere fact that the statutory language was silent as to
mens rea did not mean that mens rea might not be required. The mere fact that
Parliament requires mens rea in relation to one offence in a statute does not
necessarily mean that it did not intend mens rea to be required in relation to
another offence in the same statute:
“It is also firmly established
that the fact that other sections of the Act expressly require mens rea, for
example because they contain the word ‘knowingly’, is not in itself sufficient
to justify a decision that a section which is silent as to mens rea creates an
absolute offence. In the absence of a clear indication in the Act that an
offence is intended to be an absolute offence, it is necessary to go outside
the Act and examine all relevant circumstances in order to establish that this
must have been the intention of Parliament. I say ‘must have been’ because it
is a universal principle that if a penal provision is reasonably capable of two
interpretations, that interpretation which is most favourable to the accused
must be adopted.” (p 149)
Interpretation “outside the Act”
31.
Lord Reid considered that the court should consider the statutory
wording, the scheme of the legislation and the character and seriousness of the
mischief which constitutes the offence, and in addition that the court should
then go “outside the Act”, because, as he put it:
“One must put oneself in the
position of a legislator.” (p 149)
32.
The Board will first consider the scheme of the legislation. As to this,
sections 212 to 214 of the Customs Act represent a fasciculus of statutory
provisions criminalising participation of varying kinds in smuggling goods in
or out of Trinidad and Tobago. It is clear from the substantial penalties
imposed that Parliament takes the view that these are potentially serious
offences.
33.
The Board considers that the severity of the penalties requires close
consideration in this case. Following an amendment in 2007, the penalties in
sections 212 to 214 are particularly high: in the case of section 212, up to
TT$ 125,000 (US$18,000 approximately); in the case of sections 213 and
substantially to the same effect in section 214, on summary conviction (on
first conviction) either whichever is the higher of TT$50,000 (US$7,500
approximately) and treble the value of the goods and imprisonment for up to eight
years or (on subsequent conviction) either whichever is higher, TT$100,000 or
treble the value of the goods or up to 15 years’ imprisonment and on conviction
on indictment a sentence of imprisonment for up to 20 years plus (or so the
respondent argues) forfeiture of the goods.
34.
The seriousness of penalties is in general a factor which militates
against the conclusion that an offence is one of strict liability, and it is
clearly right that that should be so. Mr Carter relies on the decision of the
High Court of Australia in He Kaw Teh v R [1986] LRC (Crim) 553 in which
the High Court held that on its true interpretation the statutory offence of
importing narcotics in Australia required the prosecution to prove that the
defendant knew he was importing drugs. The defendant was an individual whose
suitcase had been found to have a false bottom and the defendant’s defence was
that he honestly and reasonably believed that he was not importing any drugs
into Australia. The offence in He Kaw Teh carried very severe penalties
indeed, including life imprisonment, and was regarded as directed to a grave
social evil. The Court of Appeal of Trinidad and Tobago took this decision into
account in reaching its conclusion that section 212(a) did not create an
offence of strict liability in Walker v Feese, which the Court of
Appeal in these appeals held should not be followed. In the High Court, Brennan
J expressly took a different course from that taken in some of the
jurisprudence cited in this judgment. Brennan J did not accept that strict
liability might be imposed to commission of an offence, but he did accept that
strict liability might be imposed where the purpose was also “to compel him to
take preventive measures to avoid the possibility that, without deliberate
conduct on his part, the external elements of the offence might occur” (p 590).
35.
While as a matter of statutory interpretation, the severity of the
penalties is therefore a relevant factor, the weight to be given to it is
subject to qualification in the case of some regulatory offences. Thus, in Gammon,
the issue was whether a statute creating an offence where a developer diverted
from approved plans imposed strict liability. The developer’s conduct was
capable of producing a risk to public safety. As Lord Scarman explained in Gammon
(at p 17), the severity of the penalties does not conclusively mean that the
offence is not an offence of strict liability. It may still be an offence of
strict liability where the proper inference is that this would promote
compliance and thus the regulatory purpose of the statute:
“The severity of the maximum
penalties is a more formidable point. But it has to be considered in the light
of the Ordinance read as a whole. For reasons which their Lordships have
already developed, there is nothing inconsistent with the purpose of the
Ordinance in imposing severe penalties for offences of strict liability. The
legislature could reasonably have intended severity to be a significant
deterrent, bearing in mind the risks to public safety arising from some
contraventions of the Ordinance. Their Lordships agree with the view on this
point of the Court of Appeal. It must be crucially important that those who
participate in or bear responsibility for the carrying out of works in a manner
which complies with the requirements of the Ordinance should know that severe
penalties await them in the event of any contravention or non-compliance with
the Ordinance by themselves or by anyone over whom they are required to
exercise supervision or control.”
36.
In the opinion of the Board, the seriousness of the penalties in this
case is a function of both the potential value of smuggled goods, which may be
considerable, and Parliament’s aim of deterring those involved in smuggling.
Importantly, the observance of customs regulations depends in the first
instance on self-assessment. The system whereby customs duty is paid according
to declared value is dependent on declarations being made and on those who sign
declarations doing so honestly and carefully. Customs officials are in the
nature of things likely only to be able to check the correctness of the
declaration in a limited number of cases.
37.
Moreover, although the penalties are severe, the judge imposing a
penalty does not have to impose the highest penalty and so mitigating factors,
such as the relatively minor value of the goods smuggled, can no doubt be
reflected in the sentence in any individual case. These factors reduce the
likelihood of Parliament having intended that the offence should be subject to
a defence of lack of knowledge as to the contents of any sealed container or at
least where the defendant has taken reasonable care to ensure those contents
are correctly declared. The Board recognises that the penalties are severe, but
as discussed above this is an area in which Parliament may well have decided to
increase the severity of the penalties as a deterrent to the commission of
offences.
38.
On the other hand, the presumption that Parliament intended that
offences should require mens rea in relation to each element of the offence is
a strong one. It means that a legislative intention to impose strict liability
as a deterrent to promote compliance is only to be inferred where:
“there [is] something [the
defendant] can do, directly or indirectly, by supervision or inspection, by
improvement of his business methods or by exhorting those whom he may be
expected to influence or control, which will promote the observance of the
regulations” (per Lord Evershed, giving the advice to Her Majesty in Lim
Chin Aik v The Queen [1963] AC 160 at p 174).”
39.
Offences under sections 212 to 214 primarily affect those who import or
export goods and consignees of goods from abroad. Such persons are likely to
have a contractual or commercial relationship with the consignor of the goods and
so they can stipulate that the consignor is to take steps to ensure that the
correct goods are consigned or even appoint an agent to inspect the container
on his behalf before it is sealed and shipped to Trinidad and Tobago. The
taking of these steps is likely to assist in reducing or preventing smuggling.
40.
Given the fact that the offences cover a wide variety of circumstances
arising in connection with the import or export of goods, the Board does not
accept the submission of Mr Carter that the fact that the express wording of
the offences in certain respects clearly requires mens rea (see for example
subsections (c), (d) and (e) of section 213, which use the word “knowingly”)
means that all the offences created by sections 212 to 214 must do so, or that the
decision in Patel would have for that reason to be revisited. There is
no reason why Parliament should not in the same context create some offences
which require mens rea and some which do not.
41.
The Board appreciates that an individual who is not involved in any way
in the business of import or export may be charged with an offence under these
sections. It is also possible (to take one more example) that a stevedore
unloading goods on the instructions of another could be alleged to be within
section 213(b).
42.
In argument, counsel referred to such a person as a “luckless victim”,
which is indeed how Lord Evershed (with whom that particular phrase may have
originated) referred to him or her: [1963] AC 160, 174. Mr Carter placed
considerable emphasis on the fate of the luckless victim.
43.
The Board agrees that the potential for unfairness to luckless victims
has to be taken into account as a factor weighing against the inference of an
intention on Parliament’s part that the offence under sections 212 to 214 should
carry strict liability. The luckless victim might be the person who picks up
the wrong bag off the carousel when he arrives at the airport at his
destination, or on whom material is planted at the airport without his
knowledge. But the luckless victim in that example would not even know that he
had brought in the goods. That is a completely different case from the
situation where a person knows that he is importing goods and the identity of
those goods turns out to be something different from what he thought.
44.
Phrases similar to “luckless victim” have been used in other cases, such
as Frailey v Charlton [1920] 1 KB 147 at p 153, as the Court of Appeal
in this case explained. The Board does not consider that it is necessary to
come to any conclusion about exposure to criminal liability in these situations
because they are not in issue on this appeal. The defendants in this case knew
that they were importing goods. Their case is that they were mistaken about the
nature of those goods. The case of the stevedore is also not before the Board
on this appeal.
45.
Lord Reid refers to the stigma attached to a conviction as one of the
factors outside the Act to be considered: [1970] AC 132, 149. Breaking the law
is always a serious matter, particularly when it involves the importation of
machines that can feed addiction. Though a conviction for importing gambling
machines might not be as serious as, say, importing guns, it is still serious.
46.
The court also has to take into account as one of the factors outside
the Act whether the public interest justifies the imposition of strict
liability in the case of smuggling offences, as that would make it more likely
that Parliament would have intended that result. So, too, in R v Brown
[2013] UKSC 43; [2013] 4 All ER 860, the Supreme Court of the United Kingdom
held that the statutory offence of unlawful carnal knowledge of a girl under 14
years of age was not subject to a defence where the defendant had reasonable
grounds for believing that the girl was over 14 years of age. Lord Kerr, with
whom the other members of the court agreed, rejected the argument that this
followed from the fact that other offences in the same legislation were subject
to such a defence, and held that the absence of a defence to the offence in
question was justified:
“Precisely the same policy
considerations underpin section 4 of the 1885-1923 Acts. Young girls must be
protected and, as part of that protection, it should not be a defence that the
person accused believed the girl to be above the prescribed age. As Lady Hale
said in para 46 of R v G (Secretary of State for the Home Department
intervening) [2009] AC 92, ‘When the child is under 13 … [the accused]
takes the risk that she may be younger than he thinks she is. The object is to
make him take responsibility for what he chooses to do …’. If you have sexual
intercourse with someone who is clearly a child or young person, you do so at
your peril.” (para 39)
47.
The Board considers that the imposition of strict liability for
importation is here also warranted by the public interest. It is important that
restrictions on importation are strictly observed so that no injurious goods
are imported and so that any customs duties that can be levied are duly paid.
The authorities show that there are similar offences of strict liability in
several jurisdictions.
48.
In determining whether the presumption enunciated in Sweet v Parsley
is rebutted, the Board must therefore take into account where an offence is
charged in the circumstances of this case: (1) the absence of wording in the
relevant parts of sections 212 to 214 of the Customs Act about the need to show
that Mr Nurse knew that the goods Canserve imported were the goods actually
found in the container and that therefore the declaration was false and of the
requirement for mens rea in other respects or in other offences within the same
sections; (2) the severity of the penalties and the stigma of conviction, and
(3) the importance in the public interest of deterring the false or careless
completion of customs declarations or other acts in relation to importing or
exporting goods.
49.
Mr Carter submits that the wording of the relevant subsections ought to
be interpreted as requiring mens rea in the light of Sweet v Parsley. It
is, he submits, implicit in section 212(a) that knowledge is required: one of
the factors which leads to this conclusion on his submission is that falsity of
the declaration is required. In the Board’s view, had the points (1) and (2) in
the last paragraph stood alone, the proper conclusion might have been that the
presumption has not been rebutted.
50.
However, point (3) is a matter to which the Board must give careful
consideration. The Board considers that it is of sufficient weight to rebut the
presumption. As the Board has pointed out, the system of customs declaration is
important in the interests of the community and depends on the accurate
completion of declarations and importers, exporters and others acting within
the law. Those who are regularly involved in such activities can take steps to
minimise or even obviate the risk of a criminal offence and those who are not
regularly so engaged may well use agents who are familiar with the steps that
they need to take to avoid committing a criminal offence. It was therefore open
to the legislature to take the view that the offence should not require the
prosecution to prove that the defendant did not believe that he was making a
true declaration or that he was otherwise acting lawfully. In the opinion of
the Board, notwithstanding the presumption that Parliament intends criminal
offences to require mens rea, in the context both within and outside the Act,
that presumption is rebutted in this case.
51.
Furthermore, it is not correct to say that the offences in sections 212
to 214 impose absolute liability. Mens rea is required in other respects in
relation to these offences: for example, the defendant must know that he is
making a customs declaration and not some other completely different document.
These points greatly mitigate the consideration discussed above that Parliament
cannot have intended to impose criminal liability on a luckless victim and that
the imposition of such liability would be unfair.
52.
The same conclusion as the Board has reached in relation to section
212(a) must apply to sections 213(a) and 214. Although the penalties are
heavier in the case of those sections, the case for applying the Sweet v
Parsley presumption is not on analysis stronger in those cases as they do
not involve any different type of offence.
53.
Once it is clear that there is no scope for reliance on a mistaken
belief under the statutory offences with which Mr Nurse was charged, there can
be no scope for any defence of mistaken belief for him in this regard at common
law. It is unnecessary, therefore, for the Board to consider whether there is
any such defence at common law.
54.
On that basis, and subject to the argument based on the halfway house,
the Board dismisses Mr Nurse’s appeal.
The Board too rejects the reading in of a halfway house on
this appeal
55.
Mr Knox urges the Board to consider the halfway house in this case, if
necessary on a limited basis. The halfway house was famously adopted by the
Supreme Court of Canada in R v City of Sault Ste Marie [1978] 2 SCR
1299. Under this approach, where a regulatory offence such as that in issue in
the present case, as opposed to what are sometimes called “true crimes”, is
committed without a fault element in relation to a particular objective
element, the defendant can exculpate himself by raising a defence of due
diligence, or some other standard, as to that objective element. Sault Ste
Marie was a landmark decision which drew on academic and Law Commission
work and fundamentally changed the prosecution of criminal offences in Canada.
56.
Under the halfway house, as applied in Canada, the prosecution must then
disprove the case that the defendant took reasonable care to avoid commission
of the offence. It is a halfway house because it does not require the
prosecution to prove subjective fault in all cases but only negligence.
57.
The halfway house has been upheld subsequent to the adoption of the
Canadian Charter of Rights and Freedoms as the Supreme Court of Canada has held
that strict liability violates the Charter (see In re BC Motor Vehicle Act [1985]
2 SCR 486) and the Supreme Court has also held that the requirement to show
reasonable diligence did not violate the Charter (R v Wholesale Travel Group
Inc [1991] 3 SCR 154). The European Convention on Human Rights, by contrast
with the Canadian Charter, does not in general provide guarantees with respect
to the substantive requirements of national criminal law.
58.
The halfway house starts from the premise that a person should not be
criminally liable unless there is subjective fault, and it serves to reduce the
criticism of the criminal law that it unjustly penalises those not at fault.
When the House of Lords decided Sweet v Parsley, the Supreme Court of
Canada had not decided R v City of Sault Ste Marie. However, the members
of the House did consider whether the prosecution should have to prove that the
defendant was negligent. The House did not accept that possibility in that
case. Lord Reid referred to this possibility at p 150. Read in the light of his
judgment in the earlier case of R v Warner [1969] 2 AC 256, he
plainly considered that negligence (which he called gross negligence) could be
an ingredient of an offence but this depended on the true interpretation of the
offence. Lord Morris of Borth-y-Gest and Lord Diplock also thought that
Parliament could have imposed a duty to be vigilant (pp 155 and 165). That
might have led to a defence based on exercising that diligence. It was the
supposed commission of an offence despite lack of a defence that drove several
members of the House to the view that Parliament must have intended that the
offence should require mens rea. Lord Wilberforce did not deal with other ways
of interpreting or expressing the offence. There may have been a difference of
view between Lord Pearce and Lord Diplock as to whether a halfway house would
be inconsistent with the decision of the House in Woolmington v Director of
Public Prosecutions [1935] AC 462 but it is not necessary for the Board to
pursue that.
59.
Mr Carter submits that Mr Knox’s submission on the halfway house does
not have to be considered if he is correct on the displacement in this case of
the Sweet v Parsley presumption. Mr Carter does not advance the halfway
house in his submissions and is concerned that the halfway house should not
been seen to reduce the importance of the presumption, which on his submission
is the proper route. He also submits that the adoption of the halfway approach
in any form would be a matter for the judiciary of Trinidad and Tobago.
60.
The Board agrees with Mr Carter’s submissions last noted and declines Mr
Knox’s invitation. In view of the conclusion of the Court of Appeal on this
point, and that of the Board on the meaning which Parliament clearly intended
to attach to sections 212 to 214 as they apply in this case, it is not
appropriate for the Board to consider the halfway house on this appeal. The
matter would in any event have to be fully argued and it would be necessary to
overcome the point made by the Court of Appeal, on which the Board expresses no
view, that only Parliament could make a decision of this magnitude.
Effect of forfeiture of goods on the arguments in favour
of full mens rea
61.
The respondent has sought to raise a new point not argued below that,
if, as the respondent contends, breach of section 213 also leads to forfeiture
on conviction, that provision for forfeiture would logically confirm the
conclusion that section 213 imposes strict liability. The version of section
212 included in the Appendix to the judgment reflects the official publication
of section 212 and contains no provision (mandatory or discretionary) for
forfeiture on conviction. Mr Knox submits that this publication is in error but
that is not a matter which the Board could determine on this appeal. In any
event, however, it is not necessary for the Board to rely on this point so any
view that the Board expresses would be obiter. That said, the Board inclines to
the view that this point does not assist in determining mens rea since
forfeiture (whether automatic as in section 214 or discretionary as in section
213) is simply a consequence or possible consequence of conviction, and thus
sheds no light on the elements of the offence.
62.
Canserve accepts that it is liable for the acts of the appellant if, as
the Board concludes, an offence of strict liability is found. It does not
dispute criminal liability if the offence under section 213(a) is strict. In
those circumstances it is unnecessary to deal with its separate appeal.
The Board’s conclusion
63.
The Board is grateful to counsel for their industry. They cited some
cases to which in the opinion of the Board, without intending any discourtesy,
the Board finds it unnecessary to refer. As Lord Morris held in Sweet v
Parsley at p 153:
“There have been many cases in
recent periods in which in reference to a variety of different statutory
enactments questions have been raised whether absolute offences have been
created. … I do not propose to recite or survey these cases because, in my
view, the principles which should guide construction are clear and, save to the
extent that principles are laid down, the cases merely possess the interest
which is yielded by seeing how different questions have, whether correctly or
incorrectly, been decided in reference to varying sets of words in various
different statutes.”
64.
For the reasons given in this judgment, and in agreement with the Court
of Appeal of Trinidad and Tobago, the Board concludes that this appeal should
be dismissed. That means that the case will be remitted to the lower court for
retrial in accordance with the directions of the Court of Appeal.
APPENDIX
Customs Act Chapter
78.01, sections 212 to 214
212. Any person who -
(a) in any matter relating to the Customs, or under
the control or management of the Comptroller, makes and subscribes, or causes
to be made and subscribed, any false declaration, or makes or signs, or causes
to be made or signed any declaration, certificate or other instrument required
to be verified by signature only which is false in any particular;
(b) makes or signs any declaration made for the
consideration of the Comptroller or any other application presented to him
which is untrue in any particular;
(c) being a person required by the Customs
laws to answer questions put to him by an Officer, refuses to answer such questions
or answers untruly any questions put to him by an Officer acting in the
execution of his duty;
(d) counterfeits, falsifies or wilfully uses,
when counterfeited or falsified, any document required by the Customs laws or
by the Comptroller, or required to be submitted to the Comptroller under any
other law or used in the transaction of any business or matter relating to the
Customs;
(e) alters any document after it has been
officially issued, or counterfeits the seal, signature, initials or other mark
of or used by an Officer for the verification of any such document or any other
purpose in the conduct of business relating to Customs or under the control or
management of the Comptroller;
(f) on any document required for the purposes
of the Customs laws or required to be submitted to the Comptroller under any
other law, counterfeits or imitates the seal, signature, initials or other
marks of, or made use of by another person, whether or not with the consent of
that other person,
shall incur a penalty of 125,000 dollars.
213. Any person who -
(a) imports or brings or is concerned in
importing or bringing into Trinidad and Tobago any prohibited goods, or any
goods the importation of which is restricted, contrary to such prohibition or
restriction, whether the goods are unloaded or not;
(b) unloads, or assists or is otherwise
concerned in unloading any goods which are prohibited, or any goods which are
restricted and are imported contrary to such restriction;
(c) knowingly harbours, keeps or conceals, or knowingly
permits or suffers, or causes or procures to be harboured, kept or concealed
any prohibited, restricted or uncustomed goods;
(d) knowingly acquires possession of or is in
any way knowingly concerned in carrying, removing, depositing, concealing, or
in any manner dealing with any goods with intent to defraud the State of any
duties thereon, or to evade any prohibition or restriction of or applicable to
the goods;
(e) is in any way knowingly concerned in any
fraudulent evasion or attempt at evasion of any import or export duties of
Customs, or of the laws and restrictions of the Customs relating to the
importation, unloading, warehousing, delivery, removal, loading and exportation
of goods;
(f) sells, offers for sale or exposes for
sale any goods which he knows to be prohibited or restricted, shall, in
addition to any offence for which he may be convicted under any written law,
incur a penalty -
(i) on summary conviction in the case of a first
offence, to a fine of 50,000 dollars or treble the value of the goods,
whichever is the greater, and to imprisonment for a term of eight years;
(ii) on summary conviction in the case of a second or
subsequent offence, to a fine of 100,000 dollars or treble the value of the
goods, whichever is the greater, and to imprisonment for a term of 15 years;
and
(iii) on conviction on indictment, to imprisonment for
a term of 20 years, and in any case the goods may be forfeited.
214. Any person who imports or exports,
or causes to be imported or exported, or attempts to import or export any goods
concealed in any way, or packed in any package or parcel (whether there are any
other goods in the package or parcel or not) in a manner calculated to deceive
the Officers of Customs or any package containing goods not corresponding with the
entry thereof shall, and notwithstanding sections 248 and 249 -
(a) on summary conviction, incur a penalty of 50,000
dollars or treble the value of the goods contained in such package, whichever
is the greater, and to imprisonment for a term of eight years;
(b) on conviction on indictment, be liable to
imprisonment for a term of 20 years,
and in either case, the goods shall be forfeited.
