R v Cuthbertson

JurisdictionUK Non-devolved
JudgeLord Diplock,Lord Edmund-Davies,Lord Russell of Killowen,Lord Keith of Kinkel,Lord Scarman
Judgment Date12 June 1980
Judgment citation (vLex)[1980] UKHL J0612-2
Date12 June 1980
CourtHouse of Lords
Regina
(Respondent)
and
Cuthbertson
(Appellant)
Regina
(Respondent)
and
Todd
(Appellant)
Regina
(Respondent)
and
McCoy
(Appellant)
[Consolidated Appeals (on Appeal from the Court of Appeal (Criminal Division))]

[1980] UKHL J0612-2

Lord Diplock

Lord Edmund-Davies

Lord Russell of Killowen

Lord Keith of Kinkel

Lord Scarman

House of Lords

1

R. v. Cuthertson

Lord Diplock

My Lords,

2

It is with considerable regret that I find myself compelled to allow these consolidated appeals. The appellants had carried on for several years a lucrative criminal enterprise of manufacturing and supplying the Class A hallucigenic druglysergide. This had been their only gainful occupation. They were eventually detected and arrested in 1977 as a result of what has become popularly known as "Operation Julie" and were brought to trial at Bristol Assizes before Mr. Justice Park early in 1978.

3

The charges against them that are relevant to this appeal were two counts of conspiracy to contravene the provisions of section 4 of the Misuse of Drugs Act 1971, in one count, by producing lysergide and, in the other, by supplying it. The profits of the appellants' criminal activity had been enormous. Cuthbertson and Todd had transferred a substantial part of their shares in the profits to various bank accounts in Switzerland and in France. The total value of their assets that had been traced as representing the proceeds of their criminal enterprise was some three-quarters of a million pounds and these assets were ordered to be forfeited by Mr. Justice Park as the conclusion of their trial in March 1978.

4

The appellants had pleaded guilty to the charges of conspiracy, and these were the only two offences relied upon by the Crown as justifying the orders of forfeiture that were made. The appellants appealed to the Court of Appeal against their sentences as well as against the orders of forfeiture; but the appeal to this House is limited to the orders of forfeiture only. In making each order the judge purported to act under section 27 of the Misuse of Drugs Act 1971. It is not disputed by the appellants that all the assets ordered to be forfeited were acquired out of the proceeds of the manufacture and supply by them of lysergide. The only question in dispute before your Lordships is one of law. What, if anything, does section 27 of the Misuse of Drugs Act 1971 empower a court to order to be forfeited when the only offence of which a person has been convicted before it is an offence of conspiracy to contravene the provisions of section 4 of that Act? (I state the question in rather more specific terms than those certified by the Court of Appeal.)

5

This is a pure question of construction of section 27 read in the context of the Act of which it forms a part. The question should not be approached with any preconception that parliament must have intended the section to be used as a means of stripping professional drug-traffickers, such as the appellants, of the whole of their ill-gotten gains—however laudable such a consummation might appear to be. Parliament's intention must be ascertained from the actual words which Parliament itself approved as expressing its intention when it passed the Act in the terms in which it reached the statute book.

6

The actual words to be construed are these:

"27.—(1) Subject to subsection (2) below, the court by or before which a person is convicted of an offence under this Act may order anything shown to the satisfaction of the court to relate to the offence, to be forfeited and either destroyed or dealt with in such other manner as the court may order.

(2) The court shall not order anything to be forfeited under this section, where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made."

7

As aids to construction of these apparently simple words which fall to be applied not only by judges of Crown courts but also by magistrates' courts throughout the country—for most offences under the Act are triable summarily (section 25 and Schedule 4), your Lordships have been invited to trace the history of various kinds of forfeiture known to the law over the centuries, from the concept of Anglo-Saxon deodand, through such familiar statutes as de donis conditionalibus and the Forfeiture Act of 1870; and also to consider and contrast numerous comparatively modern criminal statutes dealing with quite different offences but containing provisions for forfeiture, nearly all of which are couched in quite different terms from those of the section which your Lordships must construe. That it should be necessary to have recourse to such erudite and intricate arguments in order to ascertain the meaning of a provision in a criminal statute which needs to be administered with reasonable consistency by hundreds of criminal courts throughout the land if justice is to be done, would be discreditable to the English legal system. I have not, however, been persuaded that it is necessary to do so in order to find out what section 27 means. It is indeed more likely to distract attention from what is the real issue in the case. The words of the section, in my view, speak for themselves clearly, without resort to extraneous aids.

8

As I have said the relevant offences in the instant cases were conspiracies at common law to commit criminal offences. They were charged as continuous conspiracies over a period of years which terminated before Part I of the Criminal Law Act 1977 came into force. Had they been entered into or continued thereafter they would have been statutory conspiracies under section 1 of that Act; but this would not, in my view, have made any difference. The essence of the offence in this class of conspiracy, whether under the Criminal Law Act 1977 or at common law, is an agreement to pursue a course of conduct which, if carried out, will amount to or involve the commission of a criminal offence by one or more of the parties to the agreement. The offence is a continuous one in the sense that it continues to be committed by the parties to the agreement so long as the agreement remains on foot, Reg. v. Doot [1973] A.C. 807; but it is complete as soon as the agreement has been made, irrespective of whether any steps have actually been taken by the parties to carry out the course of conduct agreed upon. The usual way in which the prosecution proves the making of the agreement and its continuance on foot is by adducing evidence of "overt acts" by the alleged parties to the agreement; that is to say: instances of actual conduct of the parties which involves or is directed to, the commission of a criminal offence, from which the court can properly infer the existence of a prior or contemporaneous agreement between them to do the kind of thing that has in fact been done by them. The number of overt acts, or instances of conduct, that need to be proved in order to justify inferring the existence of the agreement which alone constitutes the offence with which the accused are charged is a matter for the good judgment of the prosecution. They may be few or many; and the need to prove any at all is obviated if the accused, as in the instant cases, plead guilty to the conspiracy charge.

9

My Lords, with this, the legal nature of the offence of conspiracy, in mind, I turn to the language of section 27(1) of the Misuse of Drugs Act 1971. There are two reasons why, in my opinion, that section does not apply to cases where the relevant offence of which a person has been convicted is conspiracy to commit an offence under the Act; and this is so whether the conspiracy charge is laid as a statutory conspiracy under section 1 of the Criminal Law Act 1977, or was laid as a conspiracy at common law before that section came into force.

10

In the first place, to come within section 27(1) of the Misuse of Drugs Act 1971, the offence of which the accused has been convicted must be "an offence under this Act". It is true that an agreement to produce or to supply a particular drug, which would be lawful if the Act had not been passed, is made unlawful by the Act where it relates to a controlled drug. So, it may be said, to enter into such an agreement is an offence which owes its criminal character to the Act and in this loose sense is capable of falling within the description "an offence under this Act" if that expression is given a very broad interpretation.

11

The fact that the section is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear; and, in the instant case, the whole structure of the Act in my opinion points conclusively in the opposite direction. Wherever an offence is created by the Act itself this is done expressly. The draftsman is not content to say "it shall be unlawful" to do a particular act; he goes on to say "it shall be an offence" to do it. For each of the offences so...

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