Johnson, R v [2017] EWCA Crim 189

Case No 201603634 C3[2017] EWCA Crim 189
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PETERBOROUGH CROWN COURT
His Honour Judge Enright
T20157188
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/03/2017
Before
LADY JUSTICE RAFFERTYMR JUSTICE MORRISRECORDER OF WESTMINSTER - HIS HONOUR JUDGE MCCREATH (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION
Between
RAppellantWAYNE JOHNSONRespondent
Tom Copeland for AppellantJames Earle for RespondentHearing Hearing date: 30 th November 2017
Judgment
[1]Wayne Johnson (45)on 6th July 2016 in the Crown Court at Peterborough pleaded guilty to Count 1 conveying a List A article (oxymethalone pills) into a prison contrary to S40B(1) (a) Prison Act 1952and to Count 2 conveying a List B article (3 SIM cards) into a prison contrary to section 40C (1) (a).[2]His application for leave to appeal against conviction has been referred to the full Court by the Registrar.[3]On 17th August 2015 at HMP Peterborough he smuggled in a white plastic package for an inmate. It contained prohibited items: i) Two packets holding 184 oxymethalone pills, a class C drug; ii) Three SIM cards and iii) Three packets of “spice” a synthetic cannabis “legal high”.[4]He pleaded guilty in the Magistrates court to conveying a List C article, spice, contrary to S40C (2) (a), a summary only offence.[5]In interview he claimed he had been pressurized to take in the package but believed it contained only spice. He had no idea it included the pills and SIM cards. His defence statement echoed this. Following a Judge’s ruling that he had no defence in law he pleaded guilty to the indictment.

The legal framework

[6]The Prison Act 1952 reads where relevant:
“40A. Sections 40B and 40C: classification of articles (1) This section defines the categories of articles which are referred to in sections 40B and 40C. (2) A List A article is any article or substance in the following list (‘List A’)– (a) a controlled drug (as defined for the purposes of the Misuse of Drugs Act 1971); (3) A List B article is any article or substance in the following list (‘List B’)– (a) alcohol (as defined for the purposes of the Licensing Act 2003; (b) a mobile telephone; (c) a camera; (d) a sound-recording device. …......... (6) A List C article is any article or substance prescribed for the purposes of this subsection by prison rules. … 40B. Conveyance etc. of List A articles into or out of prison (1) A person who, without authorisation– (a) brings, throws or otherwise conveys a List A article into or out of a prison … is guilty of an offence … 40C. Conveyance etc. of List B or C articles into or out of prison … (1) A person who, without authorisation– (a) brings, throws or otherwise conveys a List B article into or out of a prison, … is guilty of an offence …” is guilty of an offence …”
[7]In R v M [2009] EWCA Crim 2615 the Court considered whether an offence under S40(B)(1)(a) andS40(C)(1)(a) were of strict liability. Concluding that neither was, the court said: “In our judgment all these subsections require the same presumptive mens rea element (which at present can be glossed as "knowingly")…What the prosecution has to prove is the absence of a genuine belief …...that the offence was not being committed. In the case of S40(C)(1)(a) the defence would be "I honestly believed that I was not bringing it in" and the prosecution would have to prove the absence of an honest belief on the part of a defendant that he was not bringing the article in question with him when he entered the prison"[8]Having heard submissions that the mens rea did not involve knowledge that the article was a listed prohibited one, the judge said that S40B(1)(a) and S40C(1)(a) were silent as to any mental element or state of knowledge required. The Crown contended it was sufficient the applicant knowingly conveyed the package into the prison and there was no requirement to prove he knew the nature of its contents[9]The defence submitted that the Crown had to prove the applicant knew the “nature” of the contents. For S40B(1)(a) it had to prove he knew the package held pills and for S40C(1)(a) SIM cards. Its interpretation, the defence argued, was based on a particular reading of R v M [D]; “In the case of section 40C(1) (a) the defence would be, ‘I honestly believed that I was not bringing it in’, and the prosecution would have to prove the absence of an honest belief on the part of a defendant that he was not bringing the article in question with him when he entered the prison.”[10]The defence contended that “article in question” denoted a requirement that a defendant know the nature of the items he brought with him.[11]The Judge did not agree. He ruled that “article in question” did not create a requirement the defendant knew the nature of the article he was carrying. The Crown had to prove he knew he was carrying something into the prison, in this case, a package. Once he knowingly conveyed it in he was criminally liable for conveying its contents irrespective of whether fixed with specific knowledge of them. Accordingly, neither statute nor R v M[D] created a requirement the Crown must prove knowledge of the nature of the articles. As a first instance Judge, he could not read into the statute a more onerous mens rea requirement than provided for in statute or subsequent binding authority. The applicant therefore had no defence to counts 1 and 2.[12]Grounds of appeal echo the submission to the Judge.

Discussion and conclusion

[13]The Appellant took in a package. The package contained spice. Spice is a prohibited article. He knew of the prohibition upon the introducing of certain items. He considered, according to him, that the content of his package fell into one such category of prohibition.[14]The mental element is thus made out by his knowledge of the prohibition. It is not necessary he should know what the items are, or under what statutory list they fall.[15]In R v M(D) the Court was astute to parliament’s wish to protect those who might unknowingly bring in prohibited articles. That is nowhere near this case.[16]The mens rea the Crown had to prove was his knowledge that he was carrying into the prison something prohibited. It did. That is and always was common ground.[17]It was also common ground that mens rea did not necessarily involve his knowledge that the article - the "article in question" - was a listed prohibited one.[18]It follows that what had to be proved was that he knew he was carrying in something prohibited but not necessarily precisely what it was. Once he knowingly conveyed in a package holding prohibited spice he became criminally liable for conveying its contents irrespective of whether fixed with specific knowledge of them. Precisely what it was and what he knew of it could, dependent upon the facts and the conduct of the case, have been a matter for evidence, as we elaborate below.[19]Any other reading of the statute would create a defence for an individual given a package and told not to open it, reassured that s/he would be safe from conviction so long as in ignorance of the contents.[20]The gateway here is that the Appellant knew he was carrying in something prohibited. He believed it to be spice. That is not innocent mistake/ forgetfulness, capable of setting up a defence in reliance on R v M.[21]The extent of his knowledge will be of great significance in considering where, in the scale, the offence lies. That will be a matter of evidence capable of going to sentence and might in some circumstances require a Newton hearing. We suspect a misinterpretation of this triggered unnecessary complication both below and before us.[22]This appeal is dismissed.