R v McNamara

JurisdictionEngland & Wales
CourtCourt of Appeal
Judgment Date12 Feb 1988
Neutral Citation[1988] EWCA Crim J0212-3
Docket NumberNo. 5013/C1/87

[1988] EWCA Crim J0212-3



Royal Courts of Justice


The Lord Chief Justice of England (Lord Lane)

Mr. Justice Drake


Mr. Justice Henry

No. 5013/C1/87

James McNamara

MR. S. KAMLISH appeared on behalf of the Appellant.


On 13th August 1987 in the Crown Court at Snaresbrook before Judge Owen Stable and a jury, this appellant, James McNamara, was convicted of possession of a controlled drug (cannabis), with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. He was sentenced to three years' imprisonment. That charge was laid under count 2 of the indictment. On count 1, which alleged a conspiracy amongst a number of men to possess cannabis, the jury failed to agree and they were discharged from returning a verdict.


The appellant now claims that the Judge misdirected the jury as to the law, and the appeal is based upon that contention.


The facts were these. On 3rd December 1986 police officers went to the house of a co-defendant of this appellant with a warrant to search for drugs. Three of the co-defendants – the men charged with the conspiracy – were present at the house. Shortly after the police arrived, the appellant rode up to the premises on his motorcycle. According to the prosecution evidence he knocked at the door and announced to those inside that he had the stuff.


When confronted by one of the officers, the appellant started to run away. He was brought back to the house. He was said to have been shaking. He would not say what the stuff was, but said that it was on the back of his motorcycle. So out went the police to the motorcycle, and on the back of it they found a cardboard box, which they said was unsealed, containing about 20 kilogrammes of cannabis resin.


The appellant was arrested. Again according to the police, after caution he said that he was not the dealer but was only the carrier. He admitted that it was cannabis, but would not say where he had got it from because it was more than his life was worth to tell. He was simply told by someone, whom he refused to identify, to deliver the cannabis resin as instructed.


The appellant gave evidence. He said that he did delivery it on his motorcycle for a man called John. He declined to give any further information about that individual. He said that he thought the material which he was delivering in the box on the back of his motorcycle was pornographic or pirated video films. He never thought for a moment that he was carrying any drugs. He had simply been told by John to take the box from one public house to another. He had by chance decided to call at the co-defendant's house where the police happened to be on his way because he wanted to pick up his boots.


The direction to the jury, about which complaint is made, runs as follows: "….. first of all, you ought to decide did Mr. McNamara have possession of the cannabis resin which was in the cardboard box. You cannot have possession of a thing unless you know that you have got it, though you may not know what it is, but what you must know is that you have got it, whatever it is ….. if someone leaves something in your car or in your house and you do not know that they have done so you cannot have possession of it, but what is the position if a person gives you something and asks you to deliver it to one or more people and you take it from him and say that you will deliver it as requested, and that is what you intend to do with it. You have the article in your physical possession and you know you have got the article in your physical possession and, thus, you have control over it, and you intend to deliver it to someone or parts of it to more than one person. You have the thing, whatever it is, in your possession with intent to supply to another.


"Now, what is the position in law? 'A' if the defendant knew or suspected he had a controlled drug in his possession but he did not know it was cannabis resin. That is the first matter, and the second is this: What is the position in law if he did not know or suspect or have reason to suspect that the substance, in this case in the box, was a controlled drug. This is where a section of the Misuse of Drugs Act operates, and the section is section 28, but section 28 of the Misuse of Drugs Act only operates if, and only if, the prosecution have proved so that you are sure in this case that McNamara had the cannabis resin in his possession and knew that he had it in his possession, though it has not been proved by the prosecution that he knew what he had strapped on his bicycle was a controlled drug. Now, if the prosecution get the case that far, as I say, section 28 operates, and that section provides this, that if a person had in his possession a substance or product that he knew or suspected or had reason to suspect was a controlled drug, but he did not know it was the particular drug it turned out to be, he is not to be acquitted on that account. In other words, if the jury are satisfied so as to be sure that Mr. McNamara had cannabis resin in his possession, and are satisfied so as to be sure that he knew he had something in his possession which turned out to be the cannabis resin, and he knew, suspected or had reason to suspect that what turned out to be cannabis resin was a controlled drug of some other kind, he is guilty of the offence charged against him in count two, and the part of the Act which brings that result in law about reads as follows:" Then he read to the jury the material parts of section 28.


He then continued: "The standard of proof that is laid on the prosecution in respect of those matters which the prosecution have to prove is to make you feel sure, but where an Act of Parliament lays on a defendant the burden of proving anything, the standard of proof is a lower standard. If he persuades you that he probably did not know, probably did not suspect and probably did not have any reason for suspecting that the substance or product he had in his possession was a controlled drug, he will have discharged the burden of proof that Parliament has placed on him. So the overall position in law as regards count two is that you should convict Mr. McNamara on count two if you are satisfied so that you are sure that he had possession of the contents of the cardboard box, which admittedly was cannabis resin, and knew that the box contained something, and unless on the balance of probabilities he has proved that he neither knew, suspected nor had reason to suspect the contents of the box was any controlled drug. You should acquit McNamara notwithstanding that you are satisfied that he was in possession of this cannabis resin if you come to the conclusion that he probably did not know, nor did he suspect, nor did he have reason to suspect that the contents of the box was a controlled drug. So much for the law that you should apply when considering count two."


Mr. Kamlish in his submissions on behalf of the appellant in this Court contends that that direction is wrong. He submits that the prosecution must prove, as part of their duty, knowledge on the part of the defendant what the nature of the contents of the box were. He is forced to concede however that if his argument is correct, then the words of section 28(3), which we will read fully in a moment, are otiose. He is unable on his argument to provide those words with a sensible meaning.


The operation of section 28 of the Misuse of Drugs Act 1971, to say the least, is not free from difficulty. For instance subsection (2) reads as follows: "Subject to subsection (3) below, in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged."


If one reads those words literally, they seem in effect to cast upon the defendant the burden of disproving all facts adduced by the prosecution in support of the charges. This, one imagines, cannot possibly have been the intention of the draftsman.


We have had our attention drawn by Mr. Kamlish to the decision of this Court in the case of Carl David Ashton-Rickardt (1977) 65 Cr. App. R. 67. The view of the Court in that case was certainly that subsection (2) of section 28 did not have that...

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