Donald King Knight v Attorney General of the Cayman Islands
| Jurisdiction | UK Non-devolved |
| Judge | Lord Rodger of Earlsferry |
| Judgment Date | 25 February 2008 |
| Neutral Citation | [2008] UKPC 14 |
| Date | 25 February 2008 |
| Court | Privy Council |
| Docket Number | Appeal No 89 of 2006 |
[2008] UKPC 14
Privy Council
Present at the hearing:-
Lord Hope of Craighead
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Mance
Sir Christopher Rose
[Delivered by Lord Rodger of Earlsferry]
On 17 February 2002 the appellant, Donald King Knight, was arrested, along with Emily Scott, at Owen Roberts Airport, on suspicion of being involved in the importation of controlled drugs into the Cayman Islands. In due course it was ascertained that Emily Scott had indeed imported a quantity of cocaine. Three charges were eventually preferred against the appellant: being concerned in the importation of a controlled drug, cocaine, contrary to section 3(1) of the Misuse of Drugs Law (2000 Revision); being concerned in the possession of a controlled drug, cocaine, contrary to section 3(1); and being concerned in the possession of a controlled drug, cocaine, with intent to supply to another, also contrary to section 3(1). As a result of an incident in the holding cells when he tried to dissuade Emily Scott from giving evidence against him, the appellant was also charged with interference with a witness, contrary to section 105(b) of the Penal Code (1995 Revision).
On 14 November 2002 the appellant went to trial on the three drugs charges and the charge of interfering with a witness in the Summary Court at George Town. He was convicted of the offence of being concerned in the importation of cocaine and was sentenced to imprisonment for 15 years. On 1 August 2003 his appeal against his conviction was allowed, on the ground that the magistrate had not directed herself properly on the approach to be adopted in respect of the evidence of an alleged accomplice, such as Emily Scott. A retrial was ordered.
On 13 January 2004 the appellant again went to trial in the Summary Court at George Town on the three charges under section 3(1) of the Misuse of Drugs Law and the charge of interfering with a witness. Their Lordships were told that the appellant had declined the offer of a jury trial in the Grand Court in respect of the charge of interfering with a witness. The Board was also told that the appellant had been advised that he was not entitled to a jury trial for the Misuse of Drugs charges.
On 11 March 2004 the magistrate convicted the appellant, first, of being concerned in possession of cocaine with intent to supply and, secondly, of being concerned in the importation of cocaine. He was sentenced to 14 years imprisonment, to run concurrently, on both charges. The appellant was also convicted of interfering with a witness and sentenced to six months imprisonment, to run consecutively to the period of 14 years.
The appellant appealed to the Grand Court on the ground that the offence of being concerned in the importation of cocaine was a category B offence in terms of section 60(1) of the Misuse of Drugs Law and that he should accordingly have been tried by a jury. On 24 November 2005 Levers J allowed his appeal. When her attention was drawn to the fact that her decision appeared to be inconsistent with the decision of Orr Ag J in Attorney General v Donalds and Gooden 1997 CILR 494, she then expanded on her reasoning in a further judgment on 13 December 2005 in which she declined to follow the earlier decision.
The Crown appealed to the Court of Appeal (Zacca P, Taylor and Mottley JJA) which allowed the appeal on 11 August 2006. The Board granted the appellant special leave to appeal from that decision.
The argument in support of the appeal turns on two provisions. First, section 5(1) of the Criminal Procedure Code (2005 Revision) provides:
"For the purpose of determining the mode of trial before a court, offences shall be classified into three categories -
Category A – offences triable upon indictment and not otherwise;
Category B – offences triable upon indictment which, with the consent of the prosecution and the person charged (or all of the persons charged if there be more than one), may be tried summarily; and
Category C – offences triable summarily and not otherwise."
Secondly, section 60(1) of the Misuse of Drugs Law (2000 Revision) provides:
"Notwithstanding any other section of this Law, where a person is charged with any offence of selling, dealing in, distributing, supplying, dispensing, storing, issuing a prescription for, administering, importing, exporting, producing or attempting, contrary to section 3(1), which relates to a controlled drug that is a hard drug, then such offence shall be deemed for the purpose of determining the mode of trial, a category B offence in accordance with section 5 of the Criminal Procedure Code (1995 Revision)."
In terms of section 2(1) of, and Part I of the First Schedule to, the Misuse of Drugs Law, the definition of "hard drug" includes cocaine.
It is also necessary to have in mind the terms of section 3(1) of the same Law, which creates the substantive offences:
"Whoever, without lawful excuse or without being authorised in that behalf, -
(a) imports;
(b) exports;
(c) produces;
(d) stores;
(e) sells, buys or otherwise deals in;
(f) supplies;
(g) distributes;
(h) dispenses;
(i) issues a prescription for;
(j) administers;
(k) possesses constructively or otherwise;
(l) consumes; or
(m) has in his possession, whether lawfully or not, with intent that it be supplied, whether by himself or some other person, and whether in the Islands or elsewhere to another person in contravention of this subsection,
any controlled drug, pipe, utensil or thing used in the preparation or consumption of any controlled drug, or who attempts, assists or is concerned in any of such matters is guilty of an offence."
The short, but important, issue is whether a person who is charged with being concerned in importing a (hard) controlled drug, contrary to section 3(1), "is charged with any offence of … importing, contrary to section 3(1), which relates to a controlled drug that is a hard drug" in terms of section 60(1). The Court of Appeal held that such a person was not charged with any offence of importing a hard drug, contrary to section 3(1), but with the distinct offence of "being concerned in" importing a hard drug, contrary to section 3(1). This discrete offence was, accordingly, not deemed to be a category B offence in terms of section 5(1) of the Criminal Procedure Code (2005 Revision).
When interpreting section 60(1), the Court of Appeal referred to its predecessor, section 59(1) of the Misuse of Drugs Law (1995 Revision). Very importantly, the court had been told that "It is accepted that, prior to the 1995 amendment, all drug cases were tried summarily." This meant that, even if – as the court held - a defendant in the appellant's position were not entitled to a jury trial under the 1995 legislation, he was no worse off than he would have been under the previous law. It is common ground before the Board, however, that this is not the position. The actual position is that in 1982 the legislature had made provision for certain defendants charged with certain drugs offences to be tried by a jury.
The original legislation dealing with the mode of trial was to be found in section 6 of the Misuse of Drugs (Amendment) Law 1982, which inserted a new section 25 into the Misuse of Drugs Law 1973 in these terms:
"Notwithstanding the...
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