England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

Strand

London WC2A 2LL

Friday, 6 February 1998

B e f o r e:

LORD JUSTICE MANTELL

MR JUSTICE DOUGLAS BROWN

HIS HONOUR JUDGE MARTIN STEPHENS QC

(ACTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)

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R E G I N A

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PAUL DENSLOW

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR I. C. MORLEY appeared on behalf of the Appellant

MR A. G. STAFFORD appeared on behalf of the Crown

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J U D G M E N T

(As approved by the Court)

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©Crown Copyright

LORD JUSTICE MANTELL: On 15 April 1997, at Reading Crown Court, the appellant pleaded guilty to possessing a class A drug, heroin, but not guilty to supplying heroin on a second count. Following legal argument and a ruling by the Assistant Recorder, Mr Assistant Recorder Quinn, he changed his plea on the second count to one of guilty. The Assistant Recorder had been invited to rule as a matter of law as to whether or not the offence was made out on an agreed factual basis.

He now appeals against his conviction following the plea by leave of the single judge. It is worth noting in passing that he was not punished in relation to the supply count. He received, so we are given to understand, an absolute discharge.

The agreed facts were that on 7 November 1996 the appellant and a man called Mitchell went to Kings Cross Railway Station and had dealings with a heroin dealer. They were between them intending to purchase £300 worth of heroin and each put in £150, though it was in fact the appellant who conducted the negotiations and who handed the whole of the money to the dealer and received in return two bags of heroin, one containing 6.34 grams of heroin of 32 per cent purity and the other of 6.63 grams of heroin of 46 per cent purity. According to the agreed facts, the appellant immediately handed one of the bags to Mitchell, following which the two of them left the scene.

The Assistant Recorder following the decision of this court in Buckley v Lane (1979) 69 Cr.App.R. held that on those facts the offence had been made out.

The appellant obtained leave on the basis that the ground advanced turned on a point of law. The single judge made it very plain that he saw little merit in the proposition being put forward. In fact by section 1 of the Criminal Appeal Act 1995, leave is required whether or not the point raised is one of law, fact or a mixture of the two. However that may be, leave was granted and we have now been entertained by the argument which had originally been presented to the learned Assistant Recorder and also, to a very considerable extent, the argument which had been presented to this court in the case of Buckley v Lane .

In that case, of which we have given the reference, the facts were not entirely on all fours with the present case, as has been partly pointed out by Mr Morley in making his submission. They were, as described by Lane LJ (as he then was) in the course of giving judgment as follows: Buckley and the man Gilchrist had decided to buy cannabis resin in bulk and thereafter to share it out between them. With that end in view they pooled their money and had gone to see the supplier who was in fact the applicant Lane. In the event it was only Buckley who met Lane. He handed over the whole of the money and received the whole of the cannabis of which he eventually gave Gilchrist his share. There are, it will be observed, similarities but there are also differences. The handover, although conducted face to face, from Buckley to Gilchrist was only after Buckley had moved some substantial distance from where the original obtaining of the drugs had taken place.

The court, as we have said, listened to a similar argument to that which was presented to the Assistant Recorder in the instant case. Lane LJ (as he was) then said at page 373:

"That interesting concept is founded basically upon the provisions of section 37 (3) of the Misuse of Drugs Act 1971 which reads as follows: ´For the purposes of this Act the things which a person has in his possession shall be taken to include anything subject to his control which is in the custody of another.'"

The argument there, as here, was that the two parties (in this case the appellant and Mitchell) were in joint possession of the bags of heroin which were eventually passed to Mitchell and consequently there could be no question of supply. To continue from the judgment in Buckley v Lane :

"Mr Stewart says the cannabis resin was in the custody of Buckley who was another. It was subject to the control of Gilchrist, and, therefore, it was in Gilchrist's possession at the very moment of purchase. Now, we very much doubt whether the pound of cannabis or any part of it could be said to be subject to Gilchrist's control when it was in Buckley's hands. Indeed, even if it were and even if it could be said notionally to have come into Gilchrist's possession at the time of purchase, that might equally notionally amount to a supply by Buckley to Gilchrist by the very act of purchase. However, it seems to us these somewhat recondite arguments need not detain us.

There is a much simpler answer to the problem and it is to be found in section 37 (1) - the definition section of the 1971 Act - because these words are to be found: ´Supplying includes distributing.' Whatever else Buckley may or may not have been doing when he divided up the cannabis and gave three-quarters of a pound to Gilchrist and kept the other quarter pound for himself, he was without any shadow of a doubt - it seems to us - distributing the cannabis whoever may have been the owner of the custodian or in possession of the drug."

Lane LJ drew support for that conclusion from the case of Holmes v Chief Constable Merseyside Police [1976] Crim.L R. 125. It seems to us, as it seemed to the Assistant Recorder, that that case, albeit that the facts were not entirely on all fours with the present, disposes of the point of law raised by Mr Morley. Nor is Mr Morley assisted by his reference to the case of Maginnis [1987] AC 303, a decision of the House of Lords. There what was being considered was the definition of the word "supply" in the context of the Act. Lord Keith, giving the judgment, with which the majority of the House agreed, said this at page 309:

"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."

That definition of "supply" seems to this Court to fit exactly what happened in the present case. True the parties were all present when the deal took place. The drugs were physically handed over. They were handed over so that Mitchell could apply them to his own purposes. That is entirely clear from the agreed facts. In our judgment the learned Assistant Recorder had it entirely right when dealing with the distinction which Mr Morley was attempting to make between this case and Buckley v Lane when he said:

"I think a degree of proximity between Mr Mitchell and Mr Denslow is also, to a large extent, a matter of chance and I am doubtful as to whether criminal liability should be founded on matters of arbitrary fortune."

It could hardly have been expressed better. In our view he got it exactly right. The appeal will be dismissed.

We would just like to say this before parting with this case. It does seem unfortunate, though we understand that there may be reasons for it, that public money should have been expended upon arguing a point which has already been determined by this court and we would have said determined for all time, no doubt having been cast upon the decision in Buckley v Lane by the later decision of the House of Lords of Maginnis. Having said that, we wonder why it was thought necessary to charge supply in the circumstances of this case. How could it possibly serve the interests of the public that there should be either a trial or if not a trial as conventionally understood a hearing to determine this matter of law? It was inevitable that the appellant would be dealt with at worst as though he were in possession of the drugs and, as turned out in this case, as though he were without any criminal responsibility for that particular part of the transaction. We are told that a plea had been offered to a charge of possession. It ought to have been accepted. We hope that those words will be borne in mind by prosecuting authorities in the future.