The Crown's case and it has also always been accepted by the Crown that this was their only case, was that so far as the appellant Gingell was concerned the only other person was Andrew Camper (ie the co-accused on that count). No point was taken at the trial but counsel for the appellant Gingell had certain authorities drawn to his attention at some stage and the point taken on the appeal and the point on which leave has been given, rests on the authority of R v Roberts , a decision given by this court on 9th July 1993, the court presided over by Hirst LJ with the judgment given by Ognall J. We quote from that judgment:
"There is authority which demonstrates that the word 'another' in section 21(1) of the Act cannot be taken to embrace a co-accused on the same charge. See, in this context, Nicklin (1977) 64 Cr App R 205 and Bloxham (1982) 74 Cr App R 279. That being so, both upon the evidence that was before the court and upon authority, in our judgment the learned judge ought to have acceded to the submission made at the end of the prosecution. It has to be recorded that this is a purely technical point and therefore not a point that this court espouses with any enthusiasm but, nonetheless, in any event, it is fatal to the prosecution case."


We have to say that we do not see in fact that Nicklin or Bloxham on examination were already dealing with the same point as arose in that case and as arisen in this case. However, that said, Roberts is in our view consistent with previous authorities of this court, eg R v Connelly (Transcript 18th October 1991) and Lubren and Adepoju . Connelly was dealing with the supply of a controlled drug to another and what Stuart Smith LJ said in that case, dealing with Lubren and Adepoju (also concerned with the supply of a controlled drug to another) is this:

"It is quite plain in our judgment that the court in that case [that is the Lubren case] was using the term indictment as synonymous with 'count'. There were two previous decisions of this court, namely the case of Brian Hugh William Smith and Ferrara. The reasoning behind the decision in both those cases and Lubren's case is that as a matter of plain English where A, B and C are charged with supplying a drug to another, the other cannot be either A, B or C. It simply does not make sense. That is the ratio of those cases and the ratio of the case of Lubren."

As it seems to us, that is the difficulty for the Crown in this case. As a matter of plain language this count charged Camper and Gingell with undertaking or assisting "for the benefit of another". As a matter of plain language that must be someone other than Camper or Gingell. That being so, as it seems to us, in this case the appellant Gingell was in fact convicted of an offence which was not the offence proved by the Crown and that being so his appeal against conviction must be allowed. Accordingly we allow the appeal against conviction.

© 1999 Crown Copyright