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Significantly, in certain jurisdictions statue is explicit that knowledge is not a defence to
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the offence. In other jurisdictions , case law has established that the offence is one of strict
liability where mens rea is not an ingredient. Notwithstanding the absence of mens rea, the Court

of Appeal of Trinidad and Tobago in Darren Bhola (C&EO II) v. Canserve Caribbean Limited

and Ors, (at paragraphs 92-93), identified two category of defences: (1) the “innocent
merchant” (as referenced in R v. Barbar and Frailey v. Charlton) and (2) those whose conduct

could not in any way affect the observance of the law (as referenced in Frailey v.

Charlton and AG Hong Kong v. Tse Hung Lit).

B. Knowingly Concerned in a Fraudulent Evasion or an Attempt at Evasion
Throughout the Caribbean region, the offences of “knowingly concerned in a fraudulent

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evasion” “or [knowingly concerned in a fraudulent] attempt at evasion” exist in relation to
various subject matter and are among some of the most important customs offences as they

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capture diverse forms of criminal conduct. For instance, in the region, customs duties are
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usually covered whilst in certain jurisdictions the offences relate to “any prohibition or
restriction in force with respect to the importation, exportation or carriage coastwise of those

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goods under or by virtue of any written law”. In other jurisdictions , the offences cover the

30 See Antigua and Barbuda: Section 95(2) of the Customs (Control and Management Act); the Bahamas:
Section 270(5) of Customs Management Act, Dominica: Section 108(2) of the Customs Act, Grenada:
Section 101(2) of the Customs Act and St. Kitts and Nevis: Section 108(2) of the Customs Act
31 See Jamaica: R v. George Barbar (1973) 21 W.I.R 343 and Simmonds v. R [1997] 3 L.R.C 501 and
Trinidad and Tobago: Darren Bhola (C&EO II) v. Canserve Caribbean Limited and Ors [Mag. App. No.
P068 of 2015] overruling Clarence Walker (C&EO) v. Iveren Lucy Feese [Mag. App. No. 96 of 2009]
32 See the Barbados Court of Appeal decision of Commissioner of Police v. Ally [No. 60 of 1990] where
the two offences are discussed and an omission of the words “fraudulent” and “evasion” rendered the
information bad. Importantly, since section 100 of the Customs Act in Barbados does not include the word
“knowingly”, the dicta in Ally does not refer to that criteria.
33 See Antigua and Barbuda: Section 175(2)(a) of the Customs (Control and Management Act), Belize:
Section 112(1)(g) of the Customs Regulation Act, Barbados: Section 104(3)(c) of the Customs Act,
Dominica: Section 189(2)(a) of the Customs Act, Grenada: Section 179(2)(a) of the Customs Act,
Guyana: Section 218(e) of the Customs Act, Jamaica: Section 210(1) of the Customs Act, St. Kitts and
Nevis: Section 185(2)(a) of the Customs Act St. Lucia: Section 116(2)(a) of the Customs (Control and
Management) Act, St. Vincent and the Grenadines: Section 111(2)(a) of the Customs (Control and
Management) Act and Trinidad and Tobago: Section 213(e) of the Customs Act
34 See Antigua and Barbuda: Section 175(2)(b) of the Customs (Control and Management Act), Dominica:
Section 189(2)(b) of the Customs Act, Grenada: Section 179(2)(b) of the Customs Act and St. Kitts and
Nevis: Section 185(2)(b) of the Customs Act
35 See Barbados: Section 100 of the Customs Act, Belize: Section 112(1)(g) of the Customs Regulation
Act, Guyana: Section 218(e) of the Customs Act, Jamaica: Section 210(1) of the Customs Act and

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