R v Maginnis
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Mackay of Clashfern,Lord Oliver of Aylmerton,Lord Goff of Chieveley |
| Judgment Date | 05 March 1987 |
| Judgment citation (vLex) | [1987] UKHL J0305-1 |
| Date | 05 March 1987 |
| Court | House of Lords |
[1987] UKHL J0305-1
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Mackay of Clashfern
Lord Oliver of Aylmerton
Lord Goff of Chieveley
House of Lords
My Lords,
The respondent ("the defendant") was charged upon indictment with three counts alleging contraventions of the Misuse of Drugs Act 1971. The first count charged him with possessing a controlled drug with intent to supply it unlawfully to another, contrary to section 5(3) of the Act, and the second count, which was alternative to the first and related to the same package of drugs, charged him with unlawful possession of it contrary to section 5(2) of the Act. The third count charged unlawful possession of a different smaller quantity of drugs. The present appeal is not concerned with that count and it need not be further mentioned. At the trial, before Judge Pullinger and a jury at Inner London Crown Court, the defendant pleaded not guilty to the first count, but guilty to the second. The plea of guilty to the second count was not accepted by the prosecution, and the trial proceeded on the first count. Evidence was led by the prosecution to the effect that a package containing 227 grammes of cannabis resin, a controlled drug, having a street value of about £500, was found under the driver's seat of the defendant's car after he had been arrested in connection with an alleged assault. The defendant stated to police officers that he did not deal in drugs and that the package had been left in the car on the previous evening by a friend. He declined to name the friend and said "I expected him to come round and pick it up." At the close of the prosecution case counsel for the defendant asked the judge to direct the jury that if they accepted that his intention was merely to return the package of drugs to the person who had left it in the car that would not have been an intent to supply it to another in contravention of section 4(1)( b) of the Act of 1971, and that he should therefore be acquitted on count one. The judge ruled that the intention to return the package to the person who had left it in the car did constitute the requisite intent for conviction, and the defendant thereupon changed his plea on the first count to one of guilty. He was sentenced to 12 months' imprisonment on that count.
The defendant appealed, and on 20 December 1985 the Court of Appeal (Criminal Division) (Parker L.J., French and Mann JJ.) allowed the appeal and quashed the conviction. On the application of counsel for the prosecution, they certified that a point of law of general public importance was involved in their decision, and later granted leave to appeal to this House. The certified question is as follows:
1 Whether a person intends to supply a controlled drug if:- (a) he intends to transfer physical control of the drug to another; or (b) he intends to transfer physical control of the drug to another for the benefit of the other. 2 If (b) above is correct, whether such benefit is constituted by the return of physical control of the drug to a bailor by a bailee.
Section 5(3) of the Act of 1971 provides:
"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, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of this Act."
and section 4(1):
"Subject to any regulations made under section 7 of this Act for the time being in force, it shall not be lawful for a person — ( a) to produce a controlled drug; or ( b) to supply or offer to supply a controlled drug to another.
No question arises as to the possible application of sections 28 or 5(4) or of any regulations made under section 7.
The issue in the appeal is concerned with the meaning properly to be attributed to the word "supply" in section 4(1) and in secton 5(3). This is to be ascertained in the usual way by reference to the ordinary natural meaning of the word together with any assistance which may be afforded by the context. Counsel for the Crown sought also to derive some assistance from the Misuse of Drugs Regulations 1973, made under the powers to that effect contained in the Act of 1971, which came into force at the same time as the principal provisions of the Act. This is not, however, one of those exceptional cases where a guide to the construction of a statute may be obtained from regulations made under it, and the regulations in question are not, in my opinion, admissible for the purpose sought to be made of them. The same applies, a fortiori, to the similarly entitled regulations of 1985, to which reference was also made.
The word "supply," in its ordinary natural meaning, conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other. It connotes more than the mere transfer of physical control of some chattel or object from one person to another. No one would ordinarily say that to hand over something to a mere custodier was to supply him with it. The additional concept is that of enabling the recipient to apply the thing handed over to purposes for which he desires or has a duty to apply it. In my opinion it is not a necessary element in the conception of supply that the provision should be made out of the personal resources of the person who does the supplying. Thus if an employee draws from his employer's store materials or equipment which he requires for purposes of his work, it involves no straining of language to say that the storekeeper supplies him with those materials or that equipment, notwithstanding that they do not form part of the storekeeper's own resources and that he is merely the custodier of them. I think the same is true if it is the owner of the business who is drawing from his own storekeeper tools or materials which form part of his own resources. The storekeeper can be said to be supplying him with what he needs. If a trafficker in controlled drugs sets up a store of these in the custody of a friend whom he thinks unlikely to attract the suspicions of the police, and later draws on the store for the purposes ofhis trade, or for his own use, the custodier is in my opinon rightly to be regarded as supplying him with drugs. On the assumed facts of the present case (they were never tested before the jury), the defendant had been made custodier of the drugs by his unnamed friend, who, having regard to the quantity of the drugs, may legitimately be inferred to have been a trader. If on a later occasion the defendant had handed the drugs back to his friend, he would have done so in order to enable the friend to apply the drugs for the friend's own purposes. He would accordingly, in my opinion, have supplied the drugs to his friend in contravention of section 4(1). It follows that in so far as he was in possession of the drugs with the intention of handing them back to the friend when asked for by the latter, he was in possession with intent to supply the drugs to another in contravention of section 4(1) and was thus guilty under section 5(3).
The reason why the Court of Appeal (Criminal Division) gave leave to appeal in this case was that they believed that they perceived a conflict between two earlier decisions of that court. These two decisions were Reg. v. Delgado [1984] 1 W.L.R. 89 and Reg. v. Dempsey The Times, 22 November 1985, The Times, 22 November 1985. In Reg. v. Delgado the accused had been a passenger in a minicab which was stopped by police because it was not displaying a tax disc. He ran away leaving in the car a holdall containing 6.31 kilogrammes of cannabis. At his trial on a charge of contravening section 5(3) he gave evidence that two acquaintances had told him that they had stolen the cannabis and had nowhere to keep it. They asked him to look after it for a couple of hours and he agreed to do so. He was on his way to deliver it back to them when he was arrested. The judge ruled that returning the cannabis to those who had given it to him would be an act of supplying, and the accused thereupon pleaded guilty to the charge. Upon his appeal the Court of Appeal (Criminal Division), consisting of Lord Lane C.J., Skinner and McCowan JJ., held that the ruling of the trial judge was correct and dismissed the appeal. Skinner J., delivering the judgment of the Court of Appeal said, at p. 92:
"Thus we are driven back to considering the word 'supply' in its context. The judge himself relied upon the dictionary definition, which is a fairly wide one. This court has been referred to the Shorter Oxford English Dictionary, which gives a large number of definitions of the word 'supply,' but they have a common feature, viz.: that in the word 'supply' is inherent the furnishing or providing of something which is wanted. In the judgment of this court, the word 'supply' in section 5(3) of the Act of 1971 covers a similarly wide range of transactions. A feature common to all of those transactions is a transfer of physical control of a drug from one personto another. In our judgment questions of the transfer of ownership or legal possession of those drugs are irrelevant to the issue whether or not there was intent to supply. In the present case on his own evidence the appellant had possession of a substantial quantity of cannabis. His intention was to transfer control of it to his two friends at an agreed time and place. In those circumstances it seems to us that the judge was entirely right in his ruling, and that therefore the argument put forward by counsel for the appellant has no foundation."
In Reg. v. Dempsey the first accused, Michael, was a registered drug addict who had lawfully obtained from a medical practitioner ampoules of a controlled...
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