DPP v Nock
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 31 January 1978 |
| Judgment citation (vLex) | [1978] EWCA Crim J0131-1 |
| Docket Number | No. 947/B1/77 |
| Court | Court of Appeal (Criminal Division) |
| Date | 31 January 1978 |
[1978] EWCA Crim J0131-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Lawton
Mr. Justice Swanwick
and
Mr. Justice Gibson
No. 947/B1/77
No. 1276/B1/77
MR. R. DU CANN, Q.C. and MR. S.D. BATTEN appeared for the Appellants.
MR. D. TUDOR PRICE and MR. AMLOT appeared for the Crown.
On January 26th 1977, in the Sharesbrook Crown Court, after a trial before His Honour Judge Lewisohn, these Appellants, David Michael Nock and Kevin Charles Alsford, were convicted of a number of offences under the Misuse of Drugs Act, 1971, and sentenced to a total of two years' imprisonment. They appeal on a point of law against their conviction on count 1 of the indictment. On that count they were each sentenced to 12 months' imprisonment.
After amendment during the trial, that count charged the Appellants and others, who were not convicted, of conspiracy to contravene Section 4 of the Misuse of Drugs Act, 1971. The Particulars of Offence alleged that they had "conspired together and with other persons unknown to produce a controlled drug of Class A, namely cocaine".
On September 22nd 1975, the police searched Alsford's home and found a quantity of drugs, some white powder in a number of containers, and some chemical apparatus. When questioned about a flask of white powder, Alsford said: "Yes, I admit everything: that's cocaine, I've just had it refined". When asked what he meant by "refined", he said: "Well, it wasn't pure, but this is the pure stuff. I've separated it". When asked what he had used to do that, he said: "Chemicals in the bedroom, but people did give us a hand". Later he made a statement in writing to the effect that he had obtained a sample of powder from a man called Mitchell (who was indicted with Alsford and Nock on count 1 but the jury could not agree about his guilt). Some friends had analysed it and had reported that the powder was a mixture of cocaine and a substance called lignocaine, which is an uncontrolled pharmaceutical product. Encouraged by this report, he and others bought 5 lbs of the powder and tried to (I use his words) "separate it". At first they were unsuccessful, but in the end they got refined cocaine from the mixture.
When Nock was interviewed by the police, he admitted that he had been involved with Alsford in the separation of the cocaine from the lignocaine and added: "The process just purified the cocaine and makes it more valuable".
The process had involved the use of sulphuric acid. When the white powder was analysed at the Metropolitan Police Forensic Science Laboratory, it was found to contain no cocaine at all and cocaine could not have been produced from it.
The evidence about the chemical composition of the white powder was the foundation of two submissions made by Mr. Du Cann to this Court: first, that an agreement to commit an offence which at the date of the agreement could not be committed was not a conspiracy known to the law; and secondly, that even if such an agreement could be an offence, on the evidence in this case there was no offence, because all they had agreed to do was to separate substances in a mixture, one of which they wrongly believed to be cocaine, and that an agreement to make such a separation could not in law be an agreement to produce a controlled drug.
The first of these submissions has taken the Court into an area of the law where there is no clear authority, but some speculative writing, as to what the law ought to be. For an example, see Professor Glanville Williams, Criminal Law, 2nd edition, pages 642 and following. The Law Commission, in its Working Paper No. 50, on Inchoate Offences, tentatively suggested what the law should be. See paragraph 136 (ii) and (iv). There now is some authority touching on this problem. It is partly in the House of Lords' decision in Haughton v. Smith, (1975) Appeal Cases. 476, and partly in the decision of this Court in R. v. Green, (1976) 62 Criminal Appeal Reports, 74. Haughton v. Smith, which was concerned with a charge of attempting to handle stolen goods, tends to support the first of the Appellants' submissions. Green, which was concerned with an offence of conspiracy to evade the prohibition on the importation of cannabis, gives some support to the Respondent.
Mr. Du Cann's submission on this issue can, we think, be described as a projection into the law of conspiracy of the reasoning, which led the House of Lords to decide that a series of acts done with intent to commit a specified offence which could not be committed, could not be an attempt to commit that offence.
Lord Hailsham, Lord Chancellor, critically examined the sixfold classification of attempts to commit crime, which Mr. Justice Turner had made in the New Zealand case of R. v. Donnelly, (1970) New Zealand Law Reports, 980. The fifth of these classifications was where someone (I quote) "may find that what he is proposing to do is after all impossible - not because of insufficiency of means, but because it is for some reason physically not possible, whatever means be adopted": see page 493 E. He said at page 495 E that this class of "attempt" was not indictable in English law. At page 498 B, Lord Reid examined the proposition which had been put forward to the effect that "if the accused does not Know the true facts but erroneously believes the facts to be such that his conduct would be an offence if the facts had been as he believed them, then he is guilty of an attempt to commit the offence". He pointed out that in relation to statutory offences (and we are concerned with an alleged conspiracy to commit a statutory offence) that was clearly wrong. The only possible attempt would be to do what Parliament has forbidden, and what the accused in that case had done was to handle goods which had ceased to be stolen goods. Later in his speech Lord Reid commented on the difference between an attempt to commit an offence and the doing of an act with an unlawful intent. In the latter type of case the offence is committed even though the intent could never have been effected. R. v. Goodchild, (1846) 2 Carrington & Kirwan, 293, was such a case. The offence was to administer a noxious drug with intent to procure a miscarriage. It was no defence that the woman, to whom the noxious drug was administered, was not with child. But what if the substance was not noxious? Administering an innocuous Substance with an unlawful intent was not an act forbidden by law. Men are not punished because of their wrongful intentions, but for their unlawful acts.
Lord Reid gave some examples of what he considered would be the absurdities arising if intention based upon a mistaken belief as to the facts governed the law relating to attempts. We refer to one. A man lies dead. His enemy comes along and thinks he is asleep, so he stabs the corpse. The theory of intent coupled with belief inevitably requires the courts to hold that the enemy has attempted to murder the dead man. "The law", said Lord Reid, "may sometimes be an ass, but it cannot be so asinine as that."
Supported by this line of reasoning, Mr. Du Cann put forward this proposition: if what the parties agreed to do or the specified means they intended to employ to do it did not, either at the moment of agreement or during the subsistence of the agreement, involve the commission of a criminal offence, then they would not be guilty of the criminal conspiracy. The formulation of this proposition represents an important departure from what Lord Reid was discussing. He discussed intention to do an unlawful act with a mistaken belief as to what the facts were. Mr. Du Cann's proposition involves an agreement to do an unlawful act in the mistaken belief that facts exist which do not. It is the factor of agreement which distinguishes attempts to commit crimes from conspiracies to do so.
In Green, at page 79, Lord Justice Ormrod said it was difficult to see how the reasoning in Haughton v. Smith could be applied to conspiracy. We agree. Indeed in Haughton v. Smith, Lord Hailsham seems to be saying, at page 497 E, that the difficulty arising in that case because of the fact that the goods when handled had ceased to be stolen goods could have been avoided if a conspiracy to handle had been charged.
Mr. Tudor Price, on behalf of the prosecution, put forward a simple proposition. He submitted that as an unlawful conspiracy consists in an agreement between two or more persons to effect a purpose which the law regards as unlawful, all that the prosecution had to prove was the making of such an agreement which the parties to it intended to carry out. In this case, he submitted, there was ample evidence of the making of the agreement and the Appellants' subsequent acts snowed that they intended to carry it out. The fact that the parties to it could not have carried it out was irrelevant to proof of the offence.
Our first task is to examine carefully what the Appellants were proved to have agreed. Counsel on both sides agreed before us that the evidence went to prove that the Appellants agreed together to obtain cocaine by separating it from the other substance or substances in the powder which they had obtained from Mitchell, believing that such powder was a mixture of cocaine and lignocaine. Mr. Tudor Price had reservations about the use of the word "separate" in this connection for reasons relating to the issue whether the Appellants had agreed to "produce" cocaine. If separating the constituents of a mixture can properly be said to "produce" one of them (which is an issue we will consider later in this Judgment) in our judgment the prosecution did prove an...
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- DPP v Nock (on Appeal from the Court of Appeal (Criminal Division)), ; DPP v Alsford (on Appeal from the Court of Appeal (Criminal Divisional)),