R v Mitchell
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 23 February 1977 |
| Judgment citation (vLex) | [1977] EWCA Crim J0223-2 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 4988 A2/76 |
| Date | 23 February 1977 |
[1977] EWCA Crim J0223-2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Lawton
Lord Justice Geoffrey Lane
and
Mr. Justice MacKenna
No. 4988 A2/76
MR. KNOX-HOOKE appeared on behalf of the Appellant.
MR. M. AUSTIN-SMITH appeared on behalf of the Crown.
The judgment of the Court will be delivered by Lord Justice Lane.
On 17th September of last year at the Croydon Crown Court, this Appellant, Alvin Mitchell, aged 24, pleaded guilty to possessing controlled drugs (that was on Counts 2 and 4 of the indictment) but the Prosecution were not prepared to accept those pleas. He pleaded not guilty to two other counts, Counts 1 and 3, which charged hit, with possessing drugs with intent to supply. He was tried on those two counts, was duly convicted and was sentenced to three years' imprisonment on the two counts on which he had been found guilty. No order wan made on the two counts on which he had already pleaded guilty, namely Counts 2 and 4, the mere possession counts. There was a second indictment levelled against him on the same day. That indictment contained charges of handling to which he pleaded guilty and for that he was given six months in prison. In addition it was ordered that a sentence of three months' imprisonment, suspended for two years by the Camberwell Green Magistrates in January of last year for driving whilst disqualified, should take effect consecutive to the six months. That made nine months in all, but the nine months was ordered to run concurrently with the three years imprisonment in respect of the drug counts. So far no difficulties arise.
He applied for leave to appeal against sentence; that is, the three years' sentence. He made no complaint about the nine months' sentence on the other indictment and the suspended sentence which had been activated. The learned single Judge considered the application for leave to appeal against the three years' sentence, granted it, and consequently this man became an Appellant so far as sentence was concerned.
The facts of the case can be very briefly described. On 29th January of last year, this man was a passenger in a motor car which the police stopped. The driver was his mistress who was also charged with an offence but was eventually acquitted. The car was searched and so was he, and there was found upon him or in the car a number of packages of herbal material which appeared to be cannabis. He said that he had no more at home, and if the police officers searched his home no more would be found. But they did not take his word for that. They did search his home and in due course a large number of other packages containing similar material was found in his home, some 81 packages.
He gave an account of how he had obtained these packages and said to the police, if they were to be believed, that he had bought them on the previous day in order tote-sell them, although he did infect use cannabis himself.
In due course the matter came on or was scheduled for hearing before this Court as an appeal against sentence. But on 8th February of this year, the full Court, at Counsel's request, adjourned the sentence appeal unheard and it was relisted for today. Counsel then submitted an application for four months' extension of time in which to apply for leave to appeal against conviction. The reason for that was not far to see. It was the decision of this Court pronounced on 13th January of this year in the case of R. v. Goodchild, a judgment of another division of the Court delivered by Mr. Justice Slynn, the effect of which was to make parts of the cannabis plant, namely the leaf and the stalk, no longer within the mischief of the Act. It will be necessary at a later stage of this judgment to read the relevant portion of the judgment of Mr. Justice Slynn to see precisely what it was that he said.
That decision and the application for extension now call for consideration by this Court, and immediately a difficulty arises, because as the law stood at the time when this Appellant was tried there was no necessity for the analyst or indeed for the Court or for anyone else to look further than the question of whether any part of the cannabis plant, be it the stalk or the leaf, the fruiting or the flowering tops, was contained in the material of which the Appellant was in possession. Provided it was some part of that plant from above ground, that was enough. That was the basis on which the pleas were tendered in the Court below, and it was the basis on which the trial was conducted, and it was the basis upon which Dr. Green, the analyst, in the present case, had carried out her tests of the material which had been found in the Appellant's possession. Consequently it was necessary for this Court to embark upon such investigation as they could with regard to the nature of the material in question.
It so happens, thanks to the foresight of the Metropolitan Police Solicitors' Department, to whom this Court is much indebted, that Dr. Green was present in the Court to hear this appeal. Consequently it was possible for Mr. Knox-Hooke on behalf of the Appellant to ask for leave of the Court that she should be called, which leave was given. She again should be congratulated because not only was she here but she had with her the notes which she had made at the time when the analysis was carried out, and she was consequently in a position to help this Court by saying, with reference to her notes, that this herbal material she had examined consisted of clean seeds of cannabis, of stalks and of leaf, and beyond that she was not able to go. She did add at a later stage that it might have been possible, had this material still been in existence, which it is not, by re-examination of the material to determine whether any of it consisted of flowering or fruiting tops of cannabis. She added that the proportion of seeds in the parts which she examined would be she thought between about 10 per cent and 50 per cent, and therefore it could not be described as an insignificant proportion of the total. She added this, that the clean seeds (that is the seeds apart from the husks) contain no active constituent, that they contain no resin, and indeed they are on sale from bird fanciers' emporia so that people who are anxious to feed wild birds can go and...
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