Law Report: Awareness of article's true nature is enough

Law Report: 20 march 1998: Regina v Dunne; Court of Appeal (Criminal Division) (Lord Justice Hutchison, Mr Justice Mance and Judge Goddard QC) 6 March 1998
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The Independent Online
AN ACCUSED would be guilty of importing an obscene article if he was aware of its true nature and the jury concluded that it was such as would tend to deprave and corrupt within the meaning of section 1(1) of the Obscene Publications Act 1959.

The Court of Appeal dismissed the appeal of William Gerard Dunne against his conviction at Harrow Crown Court on 17 September 1997, following a change of plea to guilty, of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods imposed by section 42 of the Customs Consolidation Act 1876, contrary to section 170(2) of the Customs and Excise Management Act 1979.

The appellant had arrived at Heathrow Airport from Amsterdam, with videotapes, paper video covers and three brochures in his possession. He had told a customs officer that he had brought some videos back from Amsterdam and, in response to the question: "What sort of videos?" he had replied: "Blue movies." The customs officer had formed the view that the videos and the covers were obscene, and the appellant was arrested, interviewed and charged.

Following a ruling on a point of law at his trial, the appellant had changed his plea to guilty. He appealed against conviction on the ground that the judge's ruling was incorrect.

Charles Salter (Registrar of Criminal Appeals) for the appellant; Craig Ferguson (Solicitor, Customs and Excise) for the Crown.

Lord Justice Hutchison said that the contention advanced on behalf of the appellant was a novel one and if correct meant that the offence with which he had been charged was one which it was impossible to commit.

The argument was as follows: it was an essential ingredient of the offence that the appellant had known at the time of importation that the articles were obscene, and the question whether an article was obscene within the meaning of section 42 of the 1876 Act depended on whether it fell within the definition of obscenity in section 1(1) of the Obscene Publications Act 1959, which provided that:

an article shall be deemed to be obscene if its effect . . . is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read see or hear the matter contained or embodied in it.

Accordingly, until a jury had determined whether an article was within that definition, no one could know whether or not it was obscene: the person importing it, when stopped in customs and asked whether he knew the article was obscene could do no more than express his opinion in terms of the degree of probability of its being found to be obscene.

Counsel for the appellant had conceded that a man who fraudulently imported a prohibited drug believing it to be such would be guilty of knowingly importing that drug even though his belief might be based only on what the person who had given it to him had told him, and he had not himself analysed the substance. He said, however, that belief was apt only to matters of fact, not matters of opinion.

While the philosopher might say that it was impossible to know anything, the adverb "knowingly" in the 1979 Act (and in many other statutes creating criminal offences) was to be understood as emphasising the requirement of mens rea. It was fallacious to contend that, whereas belief that a bag containing heroin did contain heroin was a belief as to fact, belief that an article had a tendency to deprave and corrupt those likely to see it was a matter of opinion.

Whether an article had such a tendency was as much a question of fact as was the question whether the powder in the bag was heroin, and either might have to be determined by the jury in the event of dispute. A defendant who believed that the heroin he was carrying was glucose was entitled to be acquitted, just as was the defendant who believed that the obscene videos he was carrying were recordings of sporting events. A defendant who was aware of the true nature of the article he was importing would, however, be guilty if the jury concluded that that article had the tendencies specified in section 1(1) of the 1959 Act. The offence was not incapable of commission, and the appellant had no grounds for maintaining that his conviction was unsafe.

Kate O'Hanlon, Barrister