R v Hunt (Richard)

JurisdictionEngland & Wales
JudgeLORD JUSTICE ROBERT GOFF
Judgment Date23 October 1985
Judgment citation (vLex)[1985] EWCA Crim J1023-1
Docket NumberNo. 1650/C2/85
CourtCourt of Appeal (Criminal Division)

[1985] EWCA Crim J1023-1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Before:

Lord Justice Robert Goff

Mr. Justice Beldam

and

Mr. Justice Hutchison

No. 1650/C2/85

Regina
Richard Selwyn Russell Hunt

MR. G. GREENWOOD appeared on behalf of the Applicant.

MR. M. WARREN appeared on behalf of the Crown.

1

(As approved by the Judge)

LORD JUSTICE ROBERT GOFF
2

On the 26th February 1985, in the Crown Court at Lewes, the applicant, Richard Selwyn Russell Hunt, pleaded guilty to a charge of unlawfully possessing a controlled drug, viz., 154 milligrams of a powder containing morphine, and was sentenced by Judge Wingate to three Months' imprisonment suspended for two years. He now applies to this court for leave to appeal against conviction.

3

The facts of the case can be very briefly stated. On Friday 13th July 1984, police officers executed a warrant at the applicant's home. There they found a paper fold containing white powder. The applicant told the police that the fold contained amphetamine sulphate, which he had bought in Shaftesbury Avenue. The police caused the substance to be analysed, and it was found not to be amphetamine sulphate but to be a powder which contained morphine Mixed with caffeine and atropine. On that basis he was charged with the offence to which we have already referred.

4

The case came on for trial on 26th February 1985 before Judge Wingate and a jury. The prosecution called evidence, which consisted only of the evidence of the police officers concerned and the statement of the analyst, which was by agreement read to the jury. The statement read as follows: "On 19 July 1984 the following sealed item was received at the laboratory from Sussex Police, Eastbourne: RSE.1 Paper fold with powder. The paper fold, item RSE.1, 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." It is to be observed that the statement did not specify the proportion of morphine in the powder.

5

At the conclusion of the prosecution's ease, counsel for the applicant invited the judge to rule that there was no ease to answer. In order to explain the basis of that submission, it is necessary to refer to the relevant statutory provisions.

6

The applicant was charged with an offence under section 5(2) of the Misuse of Drugs Act 1971. Section 5(1) and (2) provides as follows: "(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 CO 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 applicant was found to be in possession was a controlled drug by virtue of being a preparation or other product containing morphine.

7

It is to be observed that section 5(1) of the Act is expressed to be "subject to any regulations under section 7 of this Act". Section 7(1) of the Act provides as follows: "(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 provisions 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."

8

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 Regulation 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 as follows: "4. (1) Sections 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 1."

9

The amended Schedule 1 to the Regulations, which was in force at the relevant time, is headed as follows: "Controlled Drugs Excepted from the Prohibition on Importation, Exportation and Possession and Subject to the Requirements of Regulation 23". The Schedule consists of nine paragraphs. Each paragraph specifies a particular controlled drug in the nature of a preparation or powder or mixture. The relevant paragraph for present purposes is paragraph 3, which reads as follows: "Any preparation of medicinal opium or of morphine containing (in either case) not more than 0.2 per cent of morphine calculated as anhydrous morphine base, being a preparation compounded with one or more other active or inert ingredients in such a way that the opium or, as the case may be, the morphine, cannot be recovered by readily applicable means or in a yield which would constitute a risk to health."

10

It follows, therefore, that a controlled drug, being a preparation as described in paragraph 3, is a controlled drug excepted from the prohibition on possession contained in section 5 of the Act. It was the submission of counsel for the applicant at the trial that there was no case to answer because the prosecution had called no evidence as to the proportion of morphine contained in the powder found in the applicant's possession, or to the effect that the powder was not compounded as specified in paragraph 3 of Schedule 1 to the Regulations, and that it was not therefore open to the jury to hold, on the evidence, that the applicant was unlawfully in possession of a controlled drug contrary to section 5(2) of the Act.

11

The judge ruled against that submission. Following that ruling, the applicant changed his plea to a plea of guilty and, having been formally convicted by the jury, was duly sentenced. It has been the sub-mission of the applicant before this court that the judge erred in point of law in so ruling, and it is on that ground that he seeks leave to appeal against his conviction in order that his conviction may be quashed.

12

The reasoning of the judge in reaching his conclusion that there was a case to answer has to be inferred from the discussion which took place between the judge and counsel, a transcript of which is before us. It was to the effect that the exceptions from the prohibition against possession of controlled drugs, contained in Schedule 1 to the Regulations, apply only to drugs in the possession of such persons as doctors, dentists, veterinary surgeons and pharmacists. This conclusion he appears to have drawn not only from the nature of the various preparations specified in the Schedule, but also from the contents of other provisions of the Regulations. For example, we hare already recorded that Schedule 1 is headed with the words "Controlled Drugs Excepted from the Prohibition on Importation, Exportation and Possession and Subject to the Requirements of Regulation 23." Regulation 23 makes provision for the preservation of records relating to drugs in Schedule 1 by producers of, and dealers in, such drugs. Furthermore, much of Part II of the Regulations is concerned with exceptions relating to professional persons such as doctors, dentists and pharmacists. Most of these exceptions relate to drugs specified in Schedules 2 and 3 of the Regulations, which specify a substantial number of controlled drugs. But Regulations 7(1) and 8(1) refer to Schedule 1. Regulation 7 provides as follows: "(1) Any person may administer to another any drug specified in Schedule 1. (2) A doctor or dentist may administer to a patient any drug specified in Schedule 2 or 3. (3) Any person other than a doctor or dentist may administer to a patient, in accordance with the directions of a doctor or dentist, any drug specified in Schedule 2 or 3." And Regulation 8(1) provides: "Notwithstanding the provisions of section 4(1)(a) of the Act (a) a practitioner or pharmacist, acting in his capacity as such, may manufacture or compound any drug specified in Schedule 1 or 2; (b) a person lawfully conducting a retail pharmacy business and acting in his capacity as such may, at the registered pharmacy at which he carries on that business, manufacture or compound any drug specified in Schedule 1 or 2." These matters, and in particular Regulation 23, appear to have impressed the judge in concluding that the exceptions in Schedule 1 to the Regulations were limited to possession of the specified controlled drugs by such persons as doctors, dentists, veterinary surgeons and pharmacists.

13

We have no doubt that the judge erred in reaching this conclusion; we suspect that his error may hare been caused or contributed to by the fact that there was not made available to him a full copy of the Regulations. Having had the opportunity of studying the Regulations in...

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