R v Hughes
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROBERT GOFF |
| Judgment Date | 18 January 1985 |
| Neutral Citation | [1985] EWCA Crim J0118-8,[1985] EWCA Crim J0118-6 |
| Judgment citation (vLex) | [1985] EWCA Crim J0118-9 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4111/C/84 |
| Date | 18 January 1985 |
[1985] EWCA Crim J0118-6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Robert Goff
Mr. Justice Mars-Jones
and
Mr. Justice Drake
No. 4111/C/84
MR. B. LETT appeared as Counsel on behalf of the Appellant.
MR. D. BROATCH appeared as Counsel on behalf of the Crown.
There is before the court an appeal by Robert Hughes against his conviction at the Crown Court at Knightsbridge on 10th July, 1984, of the offence of being concerned in the supply of a controlled drug to another, contrary to Section 4(3)(b) of the Misuse of Drugs Act, 1971.
The matter has been placed before this Court because it raises a point of law in relation to the direction by the learned Recorder to the jury in this case.
The facts of the case in outline are as follows. The Appellant, Robert Hughes, and his co-accused, Thompson, met two other men, a co-accused, Daly, and another man called Connolly, outside a chemist's shop in Beaumont Street, Wl. There were police officers in plain clothes watching what was happening and their evidence was to the effect that they saw the Appellant and Daly and Connolly each hand something to Thompson. The case for the Crown, as I understand it, was that each was giving him money with a view to him, Thompson, obtaining drugs.
At that point of time Thompson and the Appellant went into a chemist's shop and there Thompson produced a prescription and he was given certain drugs under that prescription. It is not suggested that the obtaining of those drugs by that prescription was other than a lawful obtaining of those drugs. Those drugs included a drug called Ritalin which was in the form of tablets, in foil strips, each strip containing either ten or five tablets of Ritalin. Thompson, having obtained those drugs from the shop, came out of the shop with the Appellant and joined the other men.
The evidence of the police officers was that they then walked down the road and that they were looking vigorously about them, the implication being that they were on the look-out; and that Thompson then handed to Daly a foil strip containing ten Ritalin tablets. The evidence was that they then split up, that Daly and Connolly went in one direction to the east and the Appellant and Thompson went in another direction to the west. There was also evidence that Thompson then passed something to the Appellant Hughes. The suggestion was, of course, that this was another handing over of Ritalin tablets, this time to Hughes. At all events, the evidence was that there was a shout of "police" a chase then took place and Hughes ran away, followed by the police. They eventually caught up with him; he was searched, but he was not then found to have any Ritalin tablets, or indeed any other drugs on him.
He was arrested. The accused were duly charged. There were before the jury three counts, one under which Daly was charged with unlawfully being in possession of the Ritalin tablets, of which offence he was convicted by the jury; a second count under which Hughes was charged with being unlawfully in possession of Ritalin tablets, of which he was acquitted by the jury; and a third count, which is the subject matter of the present appeal, that Hughes had been concerned in the unlawful supply of a controlled drug to another contrary to Section 4(3)(b) of the Act of 1971. On that count, Hughes was convicted by the jury.
The case against Hughes was that he was concerned in the unlawful supply of the Ritalin tablets to Daly. The appeal in the present case is advanced upon a submission that the learned Recorder failed to direct the jury properly, or indeed at all, on the meaning of the expression "concerned in" in the relevant sub-section of the Act.
I shall first read out the actual words of the sub-section. Section 4 provides as follows: (3) Subject to Section 28 of this Act - with which we are not concerned - it is an offence for a person to be concerned in the supplying of such a drug to another in contravention of that sub-section. So the accused has to be concerned in the unlawful supply of a controlled drug.
The crucial matter in the present case is: did the Recorder direct the jury properly on the meaning of the expression "concerned in" in that sub-section?
I shall next refer to certain authorities on the meaning of that expression. We have been referred by Mr. Lett, who appears for the Appellant, to R. v. Jason Joseph Blake, Ronald O'Connor, 68 Cr. App. R. 1. That was a case relating to an offence under Section 4(3)(c) of the Act, under which the offence is to be concerned in the making to another, in contravention of the sub-section, of an offer to supply a controlled drug.
So the difference between (b) and (c) is that in (b) there has to be an actual supply in which the accused was concerned, whereas under (c) it is enough that there was an offer to supply in which the accused was concerned. The case of Blake was concerned with (c).
I can refer straight to the headnote of that case, which provides a very clear summary of the facts of the case. Police officers saw a man called O'Connor approach a group of young people and heard him ask them if they liked cannabis and suggest that they could go to a nearby premises where he could 'fix them'. They arrived at the flat of Blake who was a co-accused with O'Connor. At that point of time Blake pretended not to know O'Connor and left the premises and both Blake and O'Connor were charged with an offence under subsection (c), that is to say, being concerned with the making of an offer to supply a controlled drug, namely cannabis. Neither of them gave evidence to the Crown and the jury were directed that, before Blake could be guilty, there would have to be some previous arrangement between him and O'Connor. They were both convicted and then, on appeal, it was submitted that, as Blake did not know of the offer made by O'Connor outside, he could not be guilty of the offence charged. That submission was rejected by this Court and it was observed by Eveleigh L.J., giving the judgment of this Court, that subsection (c) did not require a specific and close involvement in the making of the particular offer; indeed, it seems clear that the sub-section has been particularly widely drawn to involve people who might be or some distance from the actual making of the offer. The court concluded that, on the evidence before the jury in the particular case, they were perfectly justified in reaching a verdict of guilty. It follows that it was enough in that case that Blake should have been involved in the particular enterprise, and that he could be guilty of the offence with which he was charged even if he was not aware of the particular offer of supply which was made in pursuance of that enterprise.
It appears to us that, for an offence to be shown to have been committed by a defendant contrary to sub-section (b) or sub-section (c), as the case may be, the prosecution has to prove (1) the supply of a drug to another, or as the case may be the making of an offer to supply a drug to another in contravention of section 4(1) of the Act; (2) participation by the defendant in an enterprise involving and supply or, as the case may be, such offer to supply; and (3) knowledge by the defendant of the nature of the enterprise, i.e. that it involved supply of a drug or, as the case may be, offering to supply a drug.
In the present case, it was the duty of the Recorder to assist the jury on the law relating to the offences with which the defendants were charged and in particular, so far as the Appellant is concerned, the offence created by section 4(3)(b) of the Act. Now, what did the Recorder do here? The first thing he did, at page 4 of the transcript, was simply to read out the terms of the sub-section without assisting the jury at all on the meaning of the expression "concerned in". Next, at page 8 of the transcript, we can see that, when the jury retired from the room at the short adjournment, Mr. Lett, who was counsel for the Appellant, rising to his feet and drawing these very matters to the attention of the learned Recorder, drawing to his attention the need for proving an actual supply, and of proving participation by the Appellant in an enterprise involving such supply and knowledge by him of the nature of the enterprise in which he was involved. The learned Recorder said "I will mention that"; but when the jury returned after the short adjournment, although he drew the attention of the jury to the need for proof of an actual supply, he did not assist the jury on the meaning of the expression "concerned in". Finally at the end of the summing-up Mr. Broatch, counsel for the Crown, again very properly, rose to his feet and reminded the Recorder of the need for him to assist the jury on this point. He said, "I did understand that you would add something about the word 'concerned'; and there was some brief discussion between Mr. Broatch and the Recorder, in which there was a reference to the case of Blake. Mr. Broatch, in the presence of the jury, submitted, in my judgment perfectly correctly, that it was necessary to underline knowledge, and that there would have to be some form of participation. The Recorder simply responded, "That would seem to be sufficient. I am grateful". He added nothing more, and the jury then retired to consider their verdict.
I have to say that, despite the assistance which the Recorder was given by counsel on two occasions, he failed to give a proper direction to the jury on the law in this case. He failed properly to explain to the jury the elements which constituted the relevant offence and in particular...
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