R v Hunt (Richard)
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Templeman,Lord Griffiths,Lord Mackay of Clashfern,Lord Ackner |
| Judgment Date | 04 December 1986 |
| Judgment citation (vLex) | [1986] UKHL J1204-3 |
| Date | 04 December 1986 |
| Court | House of Lords |
[1986] UKHL J1204-3
House of Lords
Lord Keith of Kinkel
Lord Termpleman
Lord Griffiths
Lord Mackay of Clashfern
Lord Ackner
My Lords,
I have had the opportunity of considering in draft the speech prepared by noble and learned friend Lord Griffiths. I agree with it, and for the reasons he gives would allow the appeal and quash the conviction.
My Lords,
By the Misuse of Drugs Act 1971, morphine was classified as a controlled drug. By section 5:
"(1) Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession. (2) Subject to section 28 of this Act and subsection (4) below, it is an offence for a person to have a controlled drug in his possession in contravention of subsection (1) above."
By section 5(4) if: "� it is proved that the accused had a controlled drug in his possession, it shall be a defence for him to prove - �"
in certain defined circumstances that he intended to destroy the drug or to deliver the drug into lawful custody and that he took all reasonable steps to carry out his intention.
By section 7(1) the Secretary of State was given power by regulation to:
"(a) except from section � 5(1) of this Act such controlled drugs as may be specified in the regulations; and (b) make such other provision he thinks fit for the purpose of making it lawful for persons to do things which � it would otherwise be unlawful for them to do."
By section 28, in proceeding for an offence under section 5(2), the accused shall be acquitted "if he proves that he neither believed nor suspected nor had reason to suspect that the substance involved in the alleged offence was a controlled drug."
By regulation 4 of and Schedule 1 to the Misuse of Drugs Regulations 1973 ( S.I. 1973 No. 797) made pursuant to section 7 of the Act, the Secretary of State directed that section 5(1) "shall not have effect in relation to" any preparation of morphine containing "not more than 0.2 per cent. of morphine calculated as anhydrous morphine base" and compounded in such a way that the morphine cannot readily be recovered and does not constitute a risk to health.
Regulation 6 authorises certain persons to have a controlled drug in their possession, notwithstanding the provisions of section 5(1). The specified persons included a constable, a post office employee and a customs officer acting in the course of their respective occupations.
The onus of proving possession of a drug which by section 5(1) it is unlawful to possess lies on the prosecution. If that onus is discharged, it is for the accused to prove lawful authority under regulation 6, or to establish the defence of lawful intention under section 5(4), or the defence of lack of knowledge under section 28. In my opinion the Act creates a statutory offence which must be proved by the prosecution and makes available statutory defences which must be proved by the accused.
The appellant was accused of "possessing a controlled drug, contrary to section 5(2) of the Misuse of Drugs Act 1971." The evidence established possession of a powder containing "morphine mixed with caffeine and atropine." If the powder contained not more than 0.2 per cent. of morphine, calculated and compounded in the manner specified in the regulations, then the accused did not possess a controlled drug "contrary to section 5(2)." The prosecution only tendered facts which might or might not amount to an offence.
In these circumstances, the decision of this House in Woolmington v. Director of Public Prosecutions [1935] A.C. 462 is not relevant. An accused may be convicted of a criminal offence if he commits an unlawful act with the requisite state of mind. Woolmington reaffirmed that in the absence of standing provisions to the contrary the prosecution must not only prove the act by direct or circumstantial evidence but must also prove the state of mind by evidence or by inference from fact. The Act of 1971 is inconsistent with any duty on the prosecution save the duty of proving the unlawful act, namely, possession of a controlled drug contrary to section 5(2). A restricted defence is accorded to a particular state of mind, but the onus of proving that defence, and other defences defined by the Act and the Regulations, lies with the accused. Another statute may preserve common law defences or create statutory defences and may doubtfully provide for the onus of proof; the effect of Woolmington depends on the construction of the statute.
The present appeal is not concerned with defences. By section 5(2) it is an offence to be in possession of a controlled drug in contravention of section 5(1). Possession of a powder containing not more than 0.2 per cent. of morphine based and compounded in the manner specified in regulation 4 does not contravene section 5(1) and therefore does not contravene section 5(2). Possession of a powder which contains morphine and does not comply with the conditions specified by regulation 4 contravenes section 5(1) and section 5(2). The prosecution only proved possession of a powder containing morphine. The appellant was therefore entitled to be acquitted.
My Lords,
On 26 February 1985 in the Crown Court at Lewes, the appellant, Richard Selwyn Russell Hunt, pleaded not guilty to an indictment charging him with possessing a controlled drug contrary to section 5(2) of the Misuse of Drugs Act 1971, the particulars of the offence being that he on the 13 July 1984, at Eastbourne in the county of East Sussex, unlawfully had in his possession a controlled drug, namely 154 milligrams of a powder containing morphine, a Class A drug.
The prosecution called two police officers who gave evidence that on 13 July 1984 they executed a search warrant at the appellant's home and there found, under an ashtray in the bedroom, a paper fold containing a white powder. The appellant told the police that he had bought the powder in Shaftesbury Avenue and that it was amphetamine sulphate. The only other evidence for the prosecution was contained in the report of an analyst which was by agreement read to the jury. The report showed that the powder was not amphetamine sulphate and that it contained morphine. The report read:
"On 19 July 1984 the following sealed item was received at the laboratory from Sussex Police, Eastbourne: RSE.l Paper fold with powder. The paper fold, item RSE.l, contained 154 milligrams of off-white powder. This powder was found to contain morphine mixed with caffeine and atropine. Morphine is a controlled drug within the Misuse of Drugs Act 1971, Part I of Schedule 2 (Class A drugs). Caffeine and atropine are not controlled under the Misuse of Drugs Act 1971."
At the close of the prosecution case counsel for the appellant submitted that there was no case to answer. In order to understand the basis of that submission it is necessary to set out the relevant statutory provisions which I take from the judgment of the Court of Appeal [1986] Q.B. 125, 129-130:
"The appellant was charged with an offence under section 5(2) of the Misuse of Drugs Act 1971. Section 5(1) and (2) provides:
'(1) Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession. (2) Subject to section 28 of this Act and to subsection (4) below, it is an offence for a person to have a controlled drug in his possession in contravention of subsection (1) above.'
"The expression 'controlled drug' is defined in section 2(1)( a) of the Act, which provides that in the Act:
( a) the expression "controlled drug" means any substance or product for the time being specified in Part I, II or III of Schedule 2 to this Act; �'
Part I of Schedule 2 is concerned with Class A drugs. Paragraph 1 of Part I contains a list of 'substances or products,' including morphine. Paragraph 5 specifies 'Any preparation or other product containing a substance or product for the time being specified in any of paragraphs 1 to 4 above.' It follows that the powder of which the appellant was found to be in possession was a controlled drug by virtue of being a preparation or other product containing morphine.
"It is to be observed that section 5(1) of the Act of 1971 is expressed to be 'Subject to any regulations under section 7 of this Act.' Section 7(1) of the Act provides:
"'(1) The Secretary of State may by regulations - (a) except from section 3(1)( a) or ( b), 4(1)( a) or ( b) or 5(1) of this Act such controlled drugs as may be specified in the regulations; and ( b) make such other provision as he thinks fit for the purpose of making it lawful for persons to do things which under any of the following provisions of this Act, that is to say sections 4(1), 5(1) and 6(1), it would otherwise be unlawful for them to do.'
"In 1973, there came into force the Misuse of Drugs Regulations of that year ( S.I. 1973 No. 797), made in pursuance of various sections of the Act of 1971, including section 7. Part II of the Regulations is headed 'Exemptions from certain provisions of the Misuse of Drugs Act 1971,' and contains regulations 4 to 13 inclusive. For present purposes, the regulation which is of immediate importance is regulation 4(1) which provides:
"(I) Section 3(1) and 5(1) of the Act (which prohibit the importation, exportation and possession of controlled drugs) shall not have effect in relation to the controlled drugs specified in Schedule l.'
"The amended Schedule 1 to the Regulations, which was in force at the relevant time [by virtue of the Misuse of Drugs (Amendment) Regulations 1983], is headed as follows: 'Controlled drugs excepted from the prohibition on importation, exportation and...
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