R Wright v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gilbart |
| Judgment Date | 02 February 2015 |
| Neutral Citation | [2015] EWHC 628 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4610/2014 |
| Date | 02 February 2015 |
[2015] EWHC 628 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Birmingham Civil and Family Justice Hearing Centre
Priory Courts
33 Bull Street
Birmingham
West Midlands
B4 6DS
Mr Justice Gilbart
CO/4610/2014
Mr M McClintock appeared on behalf of the Claimant
Mr Ingham appeared on behalf of the Defendant
By this appeal the appellant seeks to appeal by way of Case Stated against his conviction by the Leicestershire and Rutland Magistrates' Court, sitting at Hinckley, on 3rd June 2014 of the possession of a Class A drug, namely psilocybin mushrooms, contrary to section 5(2) of the Misuse of Drugs Act 1971. They are, as I say, now classified as a Class A drug.
The magistrates have stated a case and if I may say so I pay tribute to the care which obviously has been taken in the drafting of the case.
Under the agreed facts the applicant admitted possessing the mushrooms but stated that the Crown was put to proof as to whether they were psilocybin. He admitted that the dried mushrooms were found in the search of his home and of possessing them and it is said the Crown did not rely upon any forensic, by which the magistrates meant scientific evidence.
The Case Stated then sets out the evidence. The Crown relied upon the partial admissions of the applicant made in police interview and an agreed summary of which was provided to the magistrates. I am not going to refer to all of that summary but to some parts of it.
During the course of the interview and after caution the appellant queried the classification of psilocybin, to which PC Archer replied that it was a Class A controlled drug which he considered to be a small quantity of what he called "magic mushroom". The appellant responded "Q. How is it Class A? A. Well that's what the government says." The officer asked: "What is it?" to which the appellant said: "Well, I am led to believe that its got magic mushrooms in there but it could be any mushrooms in there because I am not an expert on what magic mushrooms exactly are, I just pick them."
The other police officer at the interview, Mr Spidey, said: "You say you are led to believe that's what it contains". The appellant answered: "Because I am not exactly a genius on mushrooms. Do you know what I mean? I just pick the mushrooms with my hand. I take responsibility for that, and yeah, I just pick them with the curiosity of magic mushroom thinking that's what they were so…" The appellant went on to explain where he picked them. He said: "Because I was told they grow on pasture land that's not ploughed, that's a field that's pasture land and it's not ploughed so I just thought I'd look there. Seen a few mushrooms, pick them and there is what I found." He said he took them home, put them on the shelf and dried them. Then he said he did not want to eat them. He wanted to dry them a bit. When asked what happened when he tried them he said: "I tried them once. I felt a bit dodgy. My stomach went a bit funny. That was it. I've not taken any since." There was then discussion about whether or not he was aware they were a controlled drug.
Not included in the statement of case but referred to before me is the fact that he did also say that he had picked them in October.
The Crown called a Mr Forster. Mr Forster is not an expert witness in the ordinary sense. He is a witness however with experience of drugs and he was used for the purposes of valuing drugs in evidence called by the Crown. I shall come back to refer to his qualification shortly. The magistrates said this:
"The Crown called Mr Forster who we found to be an expert in the identification of drugs. He said that psilocybin could be identified by appearance or chemical analysis. Mr Forster in evidence stated in relation to the substance he relied upon information he had been given by PC Archer as one of the arresting officers. He also confirmed that he had physically examined the substance and identified the mushrooms as psilocybin by their appearance based on his experience. He said there were a huge variety of mushrooms but few looked like psilocybin. Mr Forster said the street value of the mushrooms he examined would be £10. He conceded that this was his opinion and there was no forensic [by which he mean scientific evidence] before the court to corroborate his opinion."
The statement of case records that he accepted that he did not mention identifying the dried mushrooms in the written statement he made at the time. The reason he gave was that he wrongly believed the applicant unequivocally admitted they were psilocybin. He said that during the police interview the applicant had said that he picked the mushrooms in October 2013. Mr Forster accepted that in his statement he had said the growing period for psilocybin was July to August but could extend into September. In live evidence before the magistrates he indicated the growing period could "further extend into October due to global warming". He said that that the dried mushrooms had been sent for forensic (by which he meant scientific) tests but the result of those tests were not available as evidence to the court.
The appellant did not give evidence. The Crown confirmed that it did not seek any inference to be drawn from the appellant's failure to testify.
The Crown's case in submissions was that Mr Forster had examined the dried mushrooms and concluded that they were psilocybin, the Class A drug. The solicitor advocate for the appellant, Mr Lee, submitted that the identification of the substance as psilocybin by appearance alone left room for reasonable doubt. Further, the so-called admissions made by the appellant were equivocal and could not be relied upon.
The findings of fact recorded by the magistrates are as follows:
"We accept the evidence of PC Archer and CV Forster and found them to be credible witnesses. We were satisfied that Mr Forster did have expert knowledge in the area of drug identification; that he physically examined the dried mushrooms and identified them as being psilocybin. We found further support for this physical examination as Mr Forster was able to place a value on the dried mushrooms, giving them a street value of £10. We took into account the partial admissions made by the applicant in his interview. On the basis of both the evidence and Mr Forster and the partial admissions we were satisfied beyond reasonable doubt that the dried mushrooms were psilocybin and found the appellant guilty of the offence charged."
The appellant contends first, that evidence is required that the drug was psilocybin and that the prosecution must prove that to the criminal standard, reference being made to R v Hill 96 Cr App R 456. Secondly, the appellant refers to Home Office Circular 15 of 2012. That Circular is entitled "The testing of substances suspected to be drugs controlled under the Misuse of Drugs Act 1971" and states that:
"All substances suspected to be controlled drugs must be sent to a forensic science laboratory for analysis unless: they are seizures of cannabis, including cannabis resin but excluding cannabis oil covered by paragraphs 3–4; or they are seizures of suspected controlled drugs (as listed in Annex A) which have given a positive result when tested with a Home Office approved drug testing device … and the criteria set out in paragraph 7 apply …"
It also states at Part 5:
"Cannabis is the only controlled substance for which forensic analysis or a positive result from a drug testing device is not required if the identification of the drug is not in dispute."
Thirdly, it is contended that in a case such as this the admissions of the appellant cannot prove that the mushrooms were psilocybin — see Bird v Adams (1972) Cr App R 174.
Mr McClintock then says first, that it was wrong for the court to be asked to and to rely on evidence short of testing. This was a case in which Mr Forster relied on visual analysis but, says Mr McClintock, he relied on the fact that few mushrooms looked like psilocybin. As put in his skeleton:
"It is further submitted that Mr Archer's evidence that there are a huge variety of mushrooms but few that look like psilocybin increases the scope for error in identification since it is suggests that some mushrooms may look like psilocybin but be of a different variety."
Next, says Mr McClintock, the admissions of the appellant were entirely equivocal and could not prove that the mushrooms were psilocybin. Therefore he said that no reasonable Bench could have convicted.
Mr Ingham, on behalf of the Crown Prosecution Service, says the following. First, he says the Crown was only put to proof. Second, he says that Mr Forster was found to be an expert. Third, he says the appeal can only succeed if there is a rule that the drug must be proved by chemical analysis. Fourth, he says that the authorities say that the fact that a substance is cannabis can be proved by inspection by an experienced police officer as opinion evidence. Next, he says that an admission by the possessor is enough to prove a substance is a controlled drug and refers to the case of R v Chapwood (1980) 70 Cr App R(S) 39. He says that the Home Office Circular, to which Mr McClintock had referred does not have the force of law. He says that in this case the evidence fell between mere police identification and chemical analysis. The civilian expert was called whose evidence was accepted. He says that the absence of a chemical test went to the weight of the evidence but the evidence was capable...
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