Misuse Of Drugs – Page 1

Misuse Of Drugs – Page 1

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Misuse of Drugs, Offences, Confiscation and Money Laundering

(including 6th edition UPDATES and amendments to Sch.2 MDA)

DEVELOPMENTS

The Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2017 SI 2017 No. 1114 [Link]

The purpose of the order  is to bring methiopropamine or MPA related materials withing schedule 2 to the MDA 1971 as Class B drugs (from the 27th November 2017).   These substances were “temporary class drugs” under the Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2016 (S.I. 2016/1126) which will lapse.  See also: The Misuse of Drugs (Amendment) (No. 2) (EWS) Regulations 2017  [Link] and the Misuse of Drugs (Designation) (Amendment) (No. 2) (EWS) Order 2017 (SI 2017 No. 1118)  [Link]

The Psychoactive Substances Act 2016 Review Framework (July 2017)  [Link]

The Home Office has published a Psychoactive Substances Act 2016 review framework (July 2017)

The Misuse of Drugs Act 1971 (Amendment) Order 2017 (SI 2017 No.634) [Link]

The order will come into force 28 days after the 3 May 2017.   The Explanatory Note states that the Order will bring a synthetic opioid known as “U-47,700” under the control of the MDA 1971 as a Class A drug, and that “several methylphenidate related materials” will be classified as Class B drugs.  Note that several methylphenidate related materials, which were  temporary class drugs  [S.I. 2016 No.650] will cease to be so when the 2017 Order comes into force.   Several so-called “designer benzodiazepines” will become Class C drugs.

The drugs in question to be included in Schedule 2 to the MDA 1971 are:
CLASS A: “3,4-dichloro-N-[2-(dimethylamino)cyclohexyl]-N-methylbenzamide (U-47,700).”
CLASS B:
•  “N-Benzyl-ethylphenidate”;
• “Ethylnaphthidate”.
• “Ethylphenidate.”;
• “Isopropylphenidate (IPP or IPPD).”;
• “Methylmorphenate.”
• “Methylnaphthidate (HDMP-28).”;
• “Propylphenidate.”;
• “3,4-Dichloroethylphenidate.”
• “3,4-Dichloromethylphenidate (3,4-DCMP).”;
• “4-Fluoroethylphenidate.”
• “4-Fluoromethylphenidate.”
• “4-Methylmethylphenidate.”.
CLASS C:
• “Adinazolam (1-(8-Chloro-6-phenyl-4H-[1,2,4]triazolo[4,3-a][1,4]benzodiazepin-1-yl)-N,N-dimethylmethanamine).”;
• “Bromazolam (8-bromo-1-methyl-6-phenyl-4H-[1,2,4]triazolo[4,3-a][1,4]benzodiazepine).”;
• “4’-Chlorodiazepam (7-Chloro-5-(4-chlorophenyl)-1-methyl-1,3-dihydro-2H-1,4-benzodiazepin-2-one).”;
• “Clonazolam (6-(2-Chlorophenyl)-1-methyl-8-nitro-4H-[1,2,4]triazolo[4,3-a][1,4] benzodiazepine).”;
• “Deschloroetizolam (2-Ethyl-9-methyl-4-phenyl-6H-thieno[3,2-f][1,2,4]triazolo[4,3-a][1,4] diazepine).”;
• “Diclazepam (7-Chloro-5-(2-chlorophenyl)-1-methyl-1,3-dihydro-2H-1,4-benzodiazepin-2-one).”;
• “Etizolam.”;
• “Flubromazepam (7-Bromo-5-(2-fluorophenyl)-1,3-dihydro-2H-1,4-benzodiazepin-2-one).
• “Flubromazolam (8-Bromo-6-(2-fluorophenyl)-1-methyl-4H-[1,2,4]triazolo[4,3-a][1,4] benzodiazepine).”;
• “Fonazepam (5-(2-Fluorophenyl)-7-nitro-1,3-dihydro-2H-1,4-benzodiazepin-2-one).”;
• “3-Hydroxyphenazepam (7-Bromo-5-(2-chlorophenyl)-3-hydroxy-1,3-dihydro-2H-1,4-benzodiazepin-2-one).”;
• “Meclonazepam (5-(2-Chlorophenyl)-3-methyl-7-nitro-1,3-dihydro-2H-1,4-benzodiazepin-2-one).”;
• “Metizolam (4-(2-Chlorophenyl)-2-ethyl-6H-thieno[3,2-f][1,2,4]triazolo[4,3-a][1,4]  diazepine).”;
• “Nifoxipam (5-(2-Fluorophenyl)-3-hydroxy-7-nitro-1,3-dihydro-2H-1,4-benzodiazepin-2-  one).”;
• “Nitrazolam (1-Methyl-8-nitro-6-phenyl-4H-[1,2,4]triazolo[4,3-a][1,4]benzodiazepine).”;
• “Pyrazolam (8-Bromo-1-methyl-6-(2-pyridinyl)-4H-[1,2,4]triazolo[4,3-a][1,4] benzodiazepine).”.

NOTE: The Criminal Justice (Specified Class B Drugs) Order 2015: Note that (in force from 1st February 2015) cannabis, cannabis resin, and amphetamine (its salts and any preparation or other product containing amphetamine or its salts) are further specified Class B drugs under s.70(1) of the Criminal Justice and Court Services Act 2000, with the result that offenders can be tested when they are subject to licence conditions or post sentence supervision requirements for drug testing pursuant to s.64 of the Criminal Justice and Court Services Act 2000 (as amended by section 11 of the Offender Rehabilitation Act 2014), or pursuant to s.256D of the Criminal Justice Act 2003 (inserted by para.2 of Schd.1 to the Offender Rehabilitation Act 2014): see the Explanatory Notes to the Order: link: [link].

NOTE: The Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2014 (SI 2014 No. 3271), see [link]; and The Misuse of Drugs (Designation) (Amendment) (No.3)
(EWS) Order 2014
(SI 2014 No. 3276), see [link], and The Misuse of Drugs (Amendment No. 3) (EWS) Regulations 2014 (SI 2014 No. 3277), see [link], came into force on the 7th January 2015 and bring various drugs under the control of the Misuse of Drugs Act 1971, including “a synthetic opiate, known as AH-7921, various tryptamines and LSD related compounds” (Class A): see the respective Explanatory Notes. Note that so far as SI 2014 No.3277 is concerned, “Regulation 4 replaces the definition of tryptamine compounds in Schedule 1 with a wider generic definition. Regulations 5 and 6 move 4-Hydroxy-n-butyric acid (‘GHB’) from Part 1 of Schedule 4 to the Regulations to Schedule 2” (see the Explanatory Note).

Cutting Agents

NOTE: For the Consultation Paper, “Introduction of new powers to allow law enforcement agencies to seize and detain chemical substances suspected of being used as drug cutting agents”, see [link].

NOTE: For the 2014 Government Response to the above Consultation Paper, see [link].

O-desmethyltramadol as an ingredient in “KRYPTON”, and other substances

NOTE: The Misuse of Drugs (Designation) (Amendment) (England, Wales and Scotland) Order 2013 came into force on the 26th February 2013: [link]. The Explanatory Notes state that the Order “….amends the Misuse of Drugs (Designation) Order 2001 by inserting into Part 1 of the Schedule to that Order 2-((dimethylamino)methyl)-1-(3-hydroxyphenyl)cyclohexanol, commonly known as O-desmethyltramadol; new categories of synthetic cannabinoids; and 2-(ethylamino)-2-(3-methoxyphenyl)cyclohexanone, commonly known as methoxetamine, and other compounds related to ketamine and phencyclidine. Article 7 substitutes a new paragraph 3 to the effect that an ester or ether of O-desmethyltramadol is not designated as a drug to which section 7(4) of the Misuse of Drugs Act 1971 applies.”

NOTE: The Misuse of Drugs (Amendment) (England, Wales and Scotland) Regulations 2013 came into force on the 26th February 2013: [link]. The Explanatory Notes state that the Order adds in Reg.2, “3, 2-((dimethylamino)methyl)-1-(3-hydroxyphenyl)cyclohexanol, commonly known as O-desmethyltramadol, to paragraph 1(a) of Schedule 1 to the Misuse of Drugs Regulations 2001. Regulations 4 and 5 add new categories of synthetic cannabinoids in substituted sub-paragraphs (h), (i), (j) and (k), and new sub-paragraphs (la), (lb) and (lc), of paragraph 1 respectively. Regulation 6 adds 2-(ethylamino)-2-(3-methoxyphenyl)cyclohexanone, commonly known as methoxetamine, and other compounds related to ketamine and phencyclidine, in new paragraph 1(p). Regulation 7 substitutes a new paragraph 3 with the effect that an ester or ether of O-desmethyltramadol is not specified in Schedule 1 to the Misuse of Drugs Regulations 2001.”

NOTE: The Misuse of Drugs Act 1971 (Amendment) Order 2013 came into force on the 26th February 2013: [link].

In its letter to the Home Secretary in October 2012, the Advisory Council on the Misuse of Drugs stated that “O-desmethyltramadol is being offered for sale as a ‘legal high’ and has been identified as an undeclared ingredient of a ‘legal high’ product called ‘Krypton’. ‘Krypton’ is sold as an herbal material, claimed to consist of Kratom leaves (Mitragyna speciosa) from a Southeast Asian tree which, when chewed, produce narcotic and opiate-like effects. The packaging of ‘Krypton’ is very similar to that of ‘Spice’ (an herbal material containing synthetic cannabinoids), that is, brightly printed foil sachets containing a few grams of ground herbal material of unknown origin and authenticity. As with ‘Spice’, the apparently natural herbal product has been found to be ‘spiked’, in this case with synthetic O-desmethyltramadol, to produce additional psychoactive effects.”: see [link].

DRUG LAW REFORM AND POLICY

NOTE: KHAT: For a copy of the House of Commons Home Affairs Committee Eleventh Report (of Session 2013-14) on KHAT, see the following link: [link].

NOTE: ACMD recommendations re NBOMe compounds and “Benzofury” : For a copy of the ACMD recommendations (28th November 2013), see the following link: [link].

NOTE: A copy of the “All-Party Parliamentary Group for Drug Policy Reform Report of an Inquiry into new psychoactive substances” (January 2013), is available from the following link: Towards a Safer Drug Policy: Challenges and Opportunities arising from ‘legal highs’” [link].

KHAT: A copy of the Report of the Advisory Council on the Misuse of Drugs regarding Khat, was published on the 23rd January 2013, concluding that “On the basis of the available evidence, the overwhelming majority of Council members consider that khat should not be controlled under the Misuse of Drugs Act 1971. “Khat: A review of its potential harms to the individual and communities in the UK” (January 2013), is available from the following link: [link].

TRAMADOL The ACMD has advised the Home Secretary and the Secretary of State for Health (13th February 2013) that tramadol should be controlled as a class C substance under the Misuse of Drugs Act 1971 and listed in Schedule III of the Misuse of Drugs Regulations 2001: [link]

SENTENCING COUNCIL DEFINITIVE GUIDELINE FOR DRUG OFFENCES

On the 24th January 2012, the Sentencing Council published definitive sentencing guidelines for drug offences, which will come into force on the 27th February 2012. The Crown Court Guidelines for Drug Offences are available by clicking on the “link” button [link].
The Magistrates’ Court Guidelines for Drug Offices are also available from the Sentencing Council website [link].

A copy of “Drug Offences Response to Consultation” is available from the Sentencing Council website: [link].

A series of very informative “Research and analysis publications” is also available on the Sentencing Council website. [link]

NOTE: For a “Summary and Discussion of the Sentencing Council’s Definitive Guidelines for Drug Offences” [R. Fortson], see: [link]. The views expressed are those of this commentator alone, and the document may be modified once the practical effect of the guidelines becomes clear.

For a copy of the Response of the Working Group of the Criminal Bar Association for England and Wales, to the Sentencing Council Consultation Paper, see: [link]. It is made clear that the views of the Working Group are not necessarily representative of the wider membership of the CBA (given time constraints that had been placed on the CBA to respond to the proposals).

Definitive Guideline for Drug Offences and Inchoate Offences
Although not expressly stated in the Definitive Guideline for Drug Offences, it is submitted that (save in exceptional cases) the Guideline does apply to the commission of inchoate offences. The Guideline clearly applies where a substantive offence (e.g. production) has been committed jointly by two or more persons. Accordingly, one starts from the premise that the Guideline applies to such conduct, albeit charged as a statutory ‘conspiracy’ (noting s.3, CLA 1977). It is important to note that for the purposes of the three offences created under Part 2 of the Serious Crime Act 2007, s.49(1) provides that “[a] person may commit an offence under this Part whether or not any offence capable of being encouraged or assisted by his act is committed” [emphasis added]. By s.58 of the 2007 Act, in cases other than murder, the offender “is liable to any penalty for which he would be liable on conviction of the anticipated or reference offence”. It is therefore submitted that there will usually be sufficient flexibility in the structure of the Definitive Guideline to adjust the sentence having regard to the particular features of the case in question (e.g. that the contemplated offence was not carried out). As for flexibility within the Guideline, see R v Healey [2012] EWCA Crim 1005 (para.5).

MISUSE OF DRUGS ACT REGULATIONS and AMENDMENTS

NOTE: The Human Medicines Regulations 2012 (SI 2012 No.1916)” [link]. See also the Explanatory Memorandum [link]. This is a substantial measure, which consolidates with “minor and drafting amendments” large parts of the Medicines Act 1968 and a number of regulations made thereunder. The 2012 Regulations came into force on the 14th August 2012. Note that s.130 of the Medicines Act 1968 is amended to bring it into line with the EC definition of a “medicinal product” (see Directive 2001/83/EC, as amended by Directive 2004/27/EC): see reg.2 (and para.31 of schedule 34) of the 2012 Regs.

The Misuse of Drugs Act 1971 (Amendment) Order 2012 came into force on 13th June 2012: see SI 2012 No.1390. [link] The Order “adds, in article 2, Desoxypipradrol and other Pipradrol-related compounds to Part 2 of Schedule 2 to the Misuse of Drugs Act 1971….which specifies drugs
which are subject to control as Class B drugs under that Act. Article 3(a) omits Pipradrol from, and adds 7-bromo-5-(2-chlorophenyl)-1,3-dihydro-2H-1,4-benzodiazepin-2-one
(commonly known as Phenazepam) to, paragraph 1(a) of Part 3 of Schedule 2 to the 1971 Act which specifies drugs which are subject to control as Class C drugs under that Act.
Article 3(b) adds Pipradrol to paragraph 1(b) of Part 3 of Schedule 2 to the 1971 Act”.

The Misuse of Drugs (Amendment No.3) (England, Wales and Scotland) Regulations 2012 came into force on 13th June 2012: see SI 2012 No.1311. [link]

The Misuse of Drugs (Designation) (Amendment No.2) (England, Wales and Scotland) Order 2012 came into force on 13th June 2012 (desoxypipradrol and other pipradrol-related compounds): see SI 2012 No.1310. [link]

The Misuse of Drugs (Amendment No.2) (England, Wales and Scotland) Regulations 2012 came into force on the 23rd April, 2012: see SI 2012 No. 973. [link] These are important amendments and note the omission of the expression “medicinal product” from the Regulations. Please monitor developments relating to the MDA 1971 on the Misuse of Drugs pages of this website.

For a set of tracked amendments to the Misuse of Drugs Regulations 2001 – updated 19th February 2013, see: link

Other amendments to the MD Regs 2001

Amendments are made by SI 2011 No. 447 link and 448 link . The effect of these amendments is broadly as follows.

From 28 March 2011, 4-methylmethcathinone (commonly known as “mephedrone”) is omitted from para. 1(a) of Part 1 of the Schedule to the Misuse of Drugs (Designation) Order 2001 (S.I. 2001 No. 3997), i.e., the “principal order”: see the Misuse of Drugs (Designation) (Amendment) (England, Wales and Scotland) Order 2011 (SI 2011 No. 447). Accordingly, article 2(a) of the Misuse of Drugs (Designation) (Amendment) (England, Wales and Scotland) Order 2010 (S.I. 2010/1143), which had inserted mephedrone into para. 1(a), is revoked. This appears to be a tidying up exercise as, according to the Explanatory Note, mephedrone falls within para.1(q) of the principal order.

From 28 March 2011, article 3 of the Misuse of Drugs (Amendment) (England, Wales and Scotland) Regulations 2011 (SI 2011 No. 448) substitutes a revised regulation 4B into the Misuse of Drugs Regulations 2001 (SI 2001 No. 3998) (SI 2001 No. 3998). Accordingly, reg. 3 of the Misuse of Drugs (Amendment) (England, Wales and Scotland) Regulations 2009 (SI 2009/3136) is revoked: (art.6, SI 2011 No. 448). Under new reg.4B(1), gamma–butyrolactone (“GBL”) and 1,4–butanediol (which can be used for the synthesis of GBL) are excepted from s. 3(1) (import and export), s. 4(1) (production and supply) and s. 5(1) (possession) of the MDA 1971 “save where a person imports, exports, produces, supplies or offers to supply either substance, or has either substance in his possession, knowing or believing that it will be used for the purpose of human ingestion whether by himself or another person other than as a flavouring in food”. Five points should be noted. First, each of these substances has legitimate uses; hence the saving. Secondly, quite apart from the defence available under the MDA, s.28, new reg.4B(1) has a mental ingredient which (it is submitted) the prosecution must prove. Thirdly, references to gamma–butyrolactone include (a) any salt of gamma–butyrolactone; and (b) any preparation or other product containing gamma–butyrolactone or a substance specified in reg. 4B(2)(a). Fourthly, 1,4-butanediol includes its esters and ethers (or both), its salts, or “any preparation or other product” containing any of those substances (new reg.4B(3)). Fifthly, that references to any stereoisomeric form of gamma–butyrolactone and 1,4-butanediol are omitted from reg. 4B: see the Explanatory Note.

From 28 March 2011, 4-methylmethcathinone (mephedrone) is omitted from para. 1(a) of schd.1 to the 2001 Regulations (art. 4, SI 2011 No. 448). The substance is caught, however, by para. 1(m) of schd.1 to the 2001 Regulations (see the Explanatory Note). Regulation 3(a) of the Misuse of Drugs (Amendment) (England, Wales and Scotland) Regulations 2010 (SI 2010 No.1144) is accordingly revoked. From the same date, amineptine and tapentadol are added to para.1 of schd.2 to the 2001 Regulations (art.5, SI 2011, No. 448).

For a list of Schedule 2 Controlled Drugs, see below (this is provided only as a guide)

TEMPORARY CLASS DRUGS

The Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2013 came into force on the 10th June 2013: see link. The substances which are particularised in the Order include 25I-NBOMe and related substances, as well as “5-APB” and “6-APB” and various related substances including “5-IT” and “6-IT”. Various derivatives of the aforementioned substances are also included.

The Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2012 came into force on 5th April 2012: see link and, see link

Note that Temporary Class Drugs are “controlled drugs” for the purposes of the MDA 1971 and punished as if they are substances of Class B.

CIRCULARS

Home Office circular 008/2012 (Control of methoxetamine under a Temporary Class Drug Order): link

Home Office circular 021/2009 (GBL, 1,4-BD, BZP and related piperazine compounds): link

Home Office circular 001 / 2009 (reclassification of cannabis): link

Home Office circular 027 / 2007 (Misuse of Drugs (Safe Custody) (Amendment) Regulations 2007): link

Home Office circular 007 / 2007 (Drugs Act 2005 (Commencement No.5) Order 2007): link

Home Office Circular 41/2006 (Methylamphetamine): link

Home Office Circular 29/2006 (drug related anti-social behaviour): link

Home Office Circular 27/2006 (amendments to MD Regs. 2001): link

Home Office Circular 55/2005: link

Home Office Circular 53/2005: link

Home Office Circular 49/2005: link

OTHER MATERIALS

A copy of the INCB Report (2013) is available here: Link
A copy of the INCB Report (2012) is available here: Link
A copy of the INCB Report (2011) is available here: Link
A copy of the INCB Report (2010) is available here: Link
A copy of the INCB Report (2009) is available here: Link

DECICED CASES

  • Marwaha v UK Border Revenue Agency (Cash And Compensation Team) [2017] EWHC 2321 (Admin) [Link]  Part IV to Schedule 2 of the MDA defines “poppy straw” as “….all parts, except the seeds, of the opium poppy, after mowing”.   Poppy-straw and concentrate of poppy-straw are Class A drugs.  However, under the MD Regs 2001, the simple possession, production and supply of “poppy straw” are not unlawful under the MDA (see reg.4).  However, the importation or exportation of “poppy straw” is prohibited unless authorised (e.g. by licence).  The question that arose in this case is whether the picking of the opium poppy constitutes “mowing”.  The answer given by the Administrative Court is “no”.   COMMENT: the outcome on the facts of this case arguably accords with common sense, but the Court did not provide a comprehensive definition of what “mowing” does mean for the purposes of the MDA.  At para.20 (judgment) Mr Justice Charles said: “As was said without demur during the hearing as a matter of the ordinary use of language it would not be said that bunches of tulips or daffodils or poppies that could be used in flower arrangements had been mown. Rather, it would be said that had been picked or harvested as flowers.”   Crops are “harvested” – usually having been cut (mowed?).  Is the distinction one that is based on whether the harvested plant is a food crop or a flower intended for decorative use?
  • R v McAtarsney [2013] NICA 59. The decision in R v Wright [2011] EWCA Crim 1180 – see below – was considered and distinguished by the Court of Appeal in Northern Ireland: see the link at Link
  • R v Free [2013] EWCA Crim 589. A copy of the judgment is available on Casetrack. In the course of preparing an appeal against the making of a confiscation order, it was noted that the indictment, which preferred the MDA 1971 offence in respect of which F was convicted (possession with intent to supply), contained an inaccuracy in that it alleged possession of a Class C controlled drug (cannabis) whereas at the time of F’s plea, cannabis was a class B drug. F sought leave to appeal on the grounds that the error rendered the proceedings a nullity. The Court of Appeal (Criminal Division) held, correctly it is submitted, that there was no arguable point to be made. COMMENT: It is submitted that the precise Class of a controlled drug is a matter of law, being specified by legislation made under the MDA 1971. Drug classification is primarily relevant to penalties that may be imposed in respect of the offence to which the drug relates. Arguably, drug classification is also intended to say something about the relative harm associated with drugs of a given Class. As the law currently stands, the trafficking in a drug of Class B or C carries the same maximum penalty. Accordingly, Courtie [1984] A.C. 463, and decisions such as Siracusa (1990) 90 Cr.App.R. 340, need to be considered with the latter point in mind. Indeed, there can be circumstances in which the name of the controlled drug in the particulars of offence is not a material averment (typically, where all that is being considered in connection with an offence is prohibited drugs of the same class), see Patel (August 7, 1991, unreported), Broad (April 25, 1997) and Ayala [2003] EWCA Crim 2047.
  • R v Aziz [2012] EWCA Crim 1063. In a very short judgment refusing A’s application for leave to appeal, the CA(CD) held “without the slightest doubt” that “that making an infusion out of the B Caapi and the Chacruna amounted to producing by making a preparation. It did in any ordinary language and it did in law. It is not a question of altering the chemical make up of DMT. It is a question of putting it into a form in which it can be consumed, which is in any ordinary language preparation.” Although not spelt out in the judgment, the reasoning would appear to be that because the MDA controls “preparations” that contain a controlled drug (and therefore such preparations are themselves “controlled drugs”), a person can “produce” a preparation (contrary to s.4 of the MDA). This seems to be tantamount to saying that every “preparation” involves an act of “production”. If so, then this decision goes significantly further (it is submitted) than decisions of the Court such as Hodder v DPP [1990] Crim LR 261, and Stevens [1981] Crim LR 568; but see R v Williams and McCollin (below) [2011] EWCA Crim 232.
  • R v McGee [2012] EWCA Crim 613. [transcript]. M’s conviction for permitting her premises to be used for the supply of Class A drugs, contrary to s 8(b) of the Misuse of Drugs Act 1971 was quashed. Police found, under M’s bed, 100 grams of powder containing cocaine. Other quantities of cut cocaine and heroin were found in a room occupied by P. Found in the utility room, were cutting agent powders and items that would have been used in mixing and packaging drugs. In a garden shed, police found a hydraulic press used for compacting mixed or cut cocaine into blocks, as well as large quantities of cutting agent. The Court of Appeal held that it was necessary for the prosecution to prove that there had been an actual supply of a controlled drug from the premises [9] (citing R v Auguste [2003] EWCA Crim 3329, [2004] 1 WLR 917. There was no such evidence in this case. It is submitted that the decision is plainly right: and see Fortson, ‘Misuse of Drugs and Drug Trafficking Offences’ (6th ed., chp. 7-003 to 7-004; 2012, Sweet and Maxwell Ltd). Note that the prosecution case was not that M had permitted her premises to be used for the production of a controlled drug consider R v Williams [2011] EWCA Crim. 232) R v Wright [2011] EWCA Crim 1180 . The Court of Appeal quashed a conviction for possessing cannabis intending to supply it, contrary to s.5(3) of the MDA 1971. Crucially, there was no useable or saleable cannabis present in the young plants being cultivated by W. The time span for growth to maturity was a matter of months. W was in possession of cannabis as defined in the statute. But to come within s.5(3) of the 1971 Act the intention to supply must be an intention to supply the thing of which the defendant is in possession. There was no suggestion that W intended to supply the immature plants of which he was in possession at the material time. It is submitted that the decision is correct. The Crown had added this charge because it did not accept W’s claim that he was cultivating the drug for his own use. As the Court observed, the core offence was the production of cannabis, and the question of whether cannabis was being grown for W’s for his own or another’s use was capable of being resolved by a Newton hearing if necessary. It is submitted that the decision is unlikely to cause difficulties in other cases. The Court did not hold that a drug that exists in one form (e.g. cocaine, as a salt), cannot be the subject of a charge under s.5(3) MDA, if the defendant intended to supply it in another form (e.g. crack). The crucial feature in Wright was the fact that the drug seized was not then useable. The Court was right to contrast that situation with the case, for example, of a gardener who propagates cannabis plants with the intention of supplying those very plants to another.
  • R v Williams and McCollin [2011] EWCA Crim 232, the Court held, as a correct statement of the law that the addition of adulterants or bulking agents to powder containing caffeine and paracetamol, to a powder containing cocaine or heroin can amount to the production of a controlled drug. Presumably, users of heroin who mix the drug with water, or cannabis users who mix the drug with tobacco (or those who bake a cannabis cake?) will have to rely on the discretion of prosecutors not to charge inappropriately.
  • R v Ahmed [2011] EWCA Crim 77 [transcript]. The Court of Appeal dismissed an appeal against sentence for the possession of 742 grams of sinsemilla cannabis (“skunk”) with intent to supply it. The Court made it clear that although the Sentencing Advisory Panel did very valuable work, its reports have no legal force unless and until adopted by the Sentencing Guidelines Council or, now, the Sentencing Council. It is submitted that this is plainly right. Of greater interest is the Court’s observations that although there is no separate statutory regime for sinsemilla cannabis, “that does not mean that the nature of the drug is irrelevant; on the contrary it is plainly relevant when, as is accepted here, the cannabis is of a kind which has a much higher value that traditional imported herbal cannabis, or cannabis resin, and the offence is committed for profit” [para.5]. Time will tell whether there will now be mitigation and appeals on the basis that not all drugs within a given Class are equally harmful.
  • R v Auton and Others [2011] EWCA Crim 76 [transcript]. The Court of Appeal gave sentencing guidance regarding the production of cannabis, including sinsemilla (popularly known as “skunk”). The Court said, “For cultivation short of the industrial such as contemplated by Xu“, but carried out on the kind of scale which the court described in paras 2 and 3 of the judgment, “i) where the cultivation will genuinely involve no element of supply of any kind, the sentence after trial is likely to be in the range 9 to 18 months, depending on the size of the operation, and the personal history of the defendant; ii) where the cultivation is for the defendant’s own use and is not a frankly commercial operation for profit, but will involve supply to others, the sentence after trial is likely to be in the range 18 months to 3 years; where any individual case will come within this range will depend on, inter alia, the scale of cultivation, the investment made, the number of parties involved, the nature of the likely supply and, in the upper reaches of the range, the level of any profit element; a previous history of directly relevant similar offending may take the case above this range. iii) where the cultivation is a frankly commercial one designed with a view to sale for profit, and whether or not the defendant may use a limited quantity of the drug himself, the sentence will usually be somewhat below the Xu range because of the smaller size of operation, but is likely to be in the general range after trial of 3 to 6 years. The circumstances, character and any criminal history of the defendant will as always be relevant. Where cultivation is accompanied by unlawful abstraction of electricity, often on a substantial scale, that will ordinarily be an aggravating factor. Adjustment should be made for a plea of guilty in the usual way according to the stage at which it was tendered.” [para.14]
  • R v Nguyen [2010] EWCA Crim 2658. N’s appeal against his conviction for being concerned in the production of a controlled drug, contrary to s.4(2)(b), MDA 1971, was dismissed. N ran a hydroponics shop which, to his knowledge, was supplying the materials necessary to set up and run cannabis factories. That was his only involvement in the production of cannabis. In a short judgment, the Court saw no justification for distinguishing the instant case from Jackman 76 Cr App R 223 where it was held that the act of “concerning” can either take place before or after the substantive offence. As the Court observed, “[t]hat case concerned a charge of being concerned in the importation of drugs, and the court said that a person who is concerned in the importation may play his part before or after that moment”. Although it is true that offences of “being concerned” can be construed in terms that give them a wide reach, it was also open to the court (it is respectfully submitted) to have limited the reach of s.4(2)(b) MDA 1971. Arguably, on the facts of Nguyen, a charge of ‘production’, put on an accessorial basis, was viable given that an act of production had taken place. The impact of this decision for those engaged in some drug harm-reduction schemes, is debatable and a matter of concern. Regulation 6A of the Misuse of Drugs Regulations 2001, exempts from s.9A MDA (drug kits) the provision of swabs, utensils for the preparation of a controlled drug (e.g. spoons), citric acid, filters, and ampoules of water for injection, by the following persons (i) medical practitioners; (ii) pharmacists; and (iii) persons employed or engaged in the lawful provision of drug treatment services (e.g. nurses and needle exchange personnel). Converting a drug from (e.g.) base to a salt (and hence citric acid) has been held to be an act of “production”. Where do those practitioners now stand if they know that the article supplied will be used for ‘production’? There may be some comfort in the current CPS charging standards that say “You should charge…being concerned in the production of a controlled drug under s.4(2)(b) when there is evidence of knowledge of commercial production and indirect participation in that production”. The key word is “commercial”.
  • R v Jones [2010] EWCA Crim 925 [transcript]. J was convicted on four counts of incitement to produce cannabis (presumably charged under s.19 of the MDA 1971). J was the proprietor of a shop that sold smoking paraphernalia and hydroponics equipment. During a police operation, an undercover officer, posing as a novice would-be cannabis grower, carried out ‘test purchases’. In covertly recorded conversations with the officer, J gave ‘advice’ that was alleged to be a sham or pretence that they were talking about tomatoes. It was contended that this advice and the sale of the equipment amounted to incitement. The Court said, in dismissing the appeal against the convictions, “it was eminently open to the jury to conclude that the use of the word ‘tomatoes’ was no more than a device to avoid the use of the word ‘cannabis’ in an attempt to provide a figleaf or pretence at observing the law. Once the appellant as a shopkeeper, advertising and promoting the sale of his wares, descended to positive advice and positive marketing in the context of it being open to the jury to conclude that he was clearly involved in a teaching conversation about the way in which it would be safest and most productive to grow cannabis rather than tomatoes, there was clearly a case to answer. It was also open to the jury to conclude that although he wished to behave in such a way that did not bring him into conflict with the law, in his ‘tutorial’ he did in fact intend to incite the production of cannabis even if he believed that he had not stepped over the line (which means no more than that he did not appreciate, as a matter of law, where the line was drawn and the effect of doing what he was doing)”.
  • R v Kousar [2009] EWCA Crim 139 [transcript]. The Court of Appeal held that for the purposes of s.92(1)(c) of the Trade Marks Act 1994, proving the element of “possession, custody or control” required more than merely showing that D had the “ability to control” or the right to control goods, the existence of which D had knowledge. Thus, where goods were in a house occupied by D it was not enough “to say that it was her house, she lived there, she knew the goods were there; thus she had the right to demand that they should be removed, she acquiesced in their presence in the house and that was sufficient to render her in possession of them”. The cases of McNamara [1998] Crim LR 278, R v Bland [1988] Crim LR 41, R v Searle [1971] Cr.App.R 592 and R v Conway and Burkes [1994] Crim LR 826, were considered. The court remarked, “Control, in the sense of ability to demand that the property be removed or ability to remove it oneself, is in fact no more than knowledge and acquiescence. That is not enough” [para.17]. It is submitted that the decision is plainly right.

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