The porous nature of the prison gates for those who would smuggle items into custody is a constant battleground for law enforcement and a source of robust criticism from the media in recent months. The value of prohibited items within prisons can soar based upon demand and there is increasing evidence of prohibited items, such as mobile phones, being used in the furtherance of crime from within the prison walls. The offence of conveying a prohibited article into prison under s.40B or 40C Prisons Act 1952 is, therefore, an increasingly common offence before the courts and yet is one that appears to cause a degree of confusion amongst practitioners. The latest example to go before the Court of Appeal was in R v Johnson  EWCA Crim 189 in which the Court of Appeal again considered the mens rea requirement for conveying a prohibited article into prison.
The appellant, Wayne Johnson, was caught smuggling a plastic package into prison containing prohibited items, namely two packets of oxymethalone pills (List A articles), three SIM cards (List B articles) and three packets of “Spice”, a form of synthetic cannabis (list C articles). In interview the appellant claimed he had been pressurised to take in the package but believed it contained only spice. Following a Judge’s ruling that he had no defence in law he pleaded guilty to the indictment.
The confusion amongst practitioners appears to be twofold: first the mistaken belief that the offence is one of strict liability. The Court of Appeal had been clear in R v M  4 All ER 51 that this is not the case. In R v M the Court was at pains to ensure that those who might unknowingly bring in prohibited articles are protected from liability and this was affirmed in R v Johnson. The second area where practitioners fall into confusion is liability where a defendant is mistaken as to the nature of the item they are conveying into prison. Such a ‘defence’ is frequently raised by clients, like Mr Johnson, and is a pertinent consideration given the differing maximum sentences for articles under the three prohibited lists (under s.40B conveying a list A article into prison carries a maximum sentence of 10 years, whereas under s.40C those convicted of conveying a list B article face just 2 years on indictment or 12 months on summary conviction and a list C article, which is summary only, is only punishable by a fine.)
The appellant Johnson argued at first instance, and appealed his conviction, on the basis of R v M contending that the Crown had to prove the appellant knew the “nature” of the contents, specifically that it contained a list A item, pills, and list B item, SIM cards. This was based on the dicta in R v M that “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”. The Judge at first instance disagreed, ruling this amounted to reading a more onerous mens rea requirement into the statute than that provided for either in statute or subsequent binding authority – it was sufficient that once the defendant knowingly conveyed a package into prison he was criminally liable for its contents irrespective of whether he had specific knowledge of them.
The Court of Appeal concurred with the Judge at first instance. On the defendant’s case he had knowingly conveyed a prohibited article, namely Spice, into prison. The Court of Appeal concluded that “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… 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.”
This ruling does not represent a departure from R v M which provided for a defence of innocent mistake, a position which was clearly some distance from that in Johnson’s case. Rather in Johnson the Court of Appeal clarified that once an individual had knowingly conveyed a package containing any prohibited article into prison he was criminally liable for the contents, even if those contents were different from those expected. To hold otherwise would be to create a defence for an individual given a package and told not to open it on the basis that they would be safe from conviction if they were ignorant of the contents which could never be acceptable on either public policy or deterrence grounds. The gateway for liability is knowledge that the defendant is carrying something prohibited – the extent of the knowledge is a matter of significance in mitigation and will in many instances require a Newton Hearing but cannot and has never provided a defence under s.40B or 40C Prisons Act 1952.