England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		29th March 2004

1. LORD JUSTICE AULD: On 20th June 2003, before Mr Recorder Lynagh QC and a jury at the Crown Court in Guildford the appellant, Neil James Prior, was convicted of two offences of offering to supply a Class A drug. The Recorder imposed two Drug Treatment and Testing Orders, each of two years' duration, to take effect concurrently. He also imposed a sentence of three months' imprisonment for an offence of possession of a Class A drug, to which the appellant had earlier pleaded guilty, a sentence that he had, by reason of his time in custody, already served.
2. The appellant appeals against his convictions by leave of the single judge.
3. The central issue at the trial was whether the appellant, as a matter of fact and in law, "offered to supply" a controlled drug to another within the meaning of that term in section 4(3)(a) of the Misuse of Drugs Act 1971.
4. The central issue in this appeal is whether, to constitute an offence under that provision, the offer must be made with an intention or belief that the person to whom it is made would believe it to be genuine. Given that central issue, which is one of law, the facts may be stated shortly.
5. In January 2003 the police in Guildford undertook a covert operation to identify and arrest drug dealers in the area. A police officer, using the name "Terry" and posing as a potential purchaser of heroin, went with a man called Hardy to the address of the appellant and a man named Dave Leach to pick up some heroin. On the way there Hardy used Terry's mobile telephone to call Leach to obtain directions to the address. Terry later obtained the appellant's telephone number from Hardy's telephone.
6. The prosecution case was that, in subsequent telephone conversations between Terry and the appellant, the appellant offered to supply Terry with heroin. The prosecution relied almost exclusively on recordings of those telephone conversations.
7. The defence case was that anything said by the appellant was not intended by him to be an offer, but a bluff; in the alternative, that any offer he may have made he subsequently withdrew in the same conversation.
8. In the first telephone conversation, which was on 2nd January, Terry indicated that he would like to visit the appellant to obtain heroin, and suggested a barter of a DVD player. The general drift of the appellant's response was that he had no drugs at the time to supply, but would be prepared to do so if Terry rang him again. The conversation ended with the appellant saying to Terry that he would sort him out. In a second telephone conversation that day the appellant indicated that he would supply Terry with heroin whenever he wanted and that Terry should just give him a call. Those telephone conversations were the subject of the first count.
9. There were some conversations over the next few days in which Terry indicated his wish to obtain heroin, again offering to barter a DVD player, and in which the appellant appeared to prevaricate, indicating that he had no heroin at the time and was dependent on Leach for his supply, but also indicating that when he was in a position to deal with Terry he would do so.
10. There was a further telephone conversation, this time on 7th January, which is the subject of the second count. In it Terry repeated his offer of a DVD player as payment for some heroin. The appellant indicated that he would definitely do the deal and would obtain the heroin from someone else to enable him to do it. Then he said that he would set up the deal so that someone else would supply Terry, adding that he did not want Terry to keep telephoning him and being let down. In a further telephone conversation that day, when Terry repeated his request for heroin, this time offering some clothing in exchange, the appellant said that he would pay for the clothing in money so that Terry could use it to buy heroin elsewhere, adding "I don't want to get into the gear any more", but he ended the conversation by saying that he would either pay him in money for the clothing or with heroin.
11. The appellant remained silent in interview after caution following his arrest.
12. At trial, at the close of the prosecution case, Miss Katy Thorne submitted on behalf of the appellant that there was insufficient evidence of any offer to supply a controlled drug. The burden of her submission was that in the various telephone conversations the appellant went through a number of stages, from arguably offering or agreeing to supply heroin to Terry, to offering to act as an intermediary, to stating that he would not supply heroin in return for the articles Terry offered him and to indicating that he would rather pay in cash for them. Miss Thorne submitted that, taking the conversations as a whole, they did not constitute offers to supply a controlled drug or that, if some of them did, the appellant effectively withdrew them during the telephone conversations on 7th January.
13. The Recorder rejected that submission, holding that, although he did not find the point easy, his view was that once an offer to supply drugs had been made, the offence was complete, even though the accused may have subsequently rescinded or revoked his offer. He said that he was satisfied that there was evidence on which a jury could properly find that the appellant had offered to supply the drug on both occasions, and that what he said subsequent to the making of such offers was immaterial to the issue of his guilt or innocence. He added, in the alternative, that even if an offer could be expunged by later withdrawal, a reasonable jury could properly find, on the totality of the conversation on 7th January, that the original offers on 2nd January and on that day were never in fact withdrawn.
14. The appellant gave the following evidence. At the material time he was addicted to heroin and Leach was his supplier. When Terry telephoned on 2nd January he had no heroin to supply and no money to buy any for onward supply. He had no intention of dealing with Terry. His intention was to put him in contact with Leach so that Leach could supply him and so that he, the appellant, might benefit from Leach's gratitude for the introduction. He did not himself want to deal. At some stage in their short series of telephone conversations his plan had been to obtain heroin from Leach for Terry, but later he decided to tell Leach of Terry's interests and let Leach deal with him direct. He hoped, in saying to Terry that he would telephone him and then not doing so, and by procrastinating, that Terry would lose interest and approach someone else. Whenever he said "yeah" or "yes" to Terry's suggestions, he was not really agreeing with them, but simply giving the appearance of going along with them.
15. The Recorder, in his directions of law to the jury on the counts of offering, said:

"... The allegation in each [count] is the same that the defendant offered to supply a quantity, no amount specified, but a quantity of heroin to Terry, the undercover police officer who you saw give evidence. The most important words there are 'offering to supply'. Not a supply that is alleged, but simply an offer. Again, there is nothing technical or legalistic about the word 'offer', it is a normal English word in common usage and you treat it as such. The point though is: is it an offer?

You have heard during the course of argument that it is important that the defendant never actually intended to supply heroin to Terry and, indeed, fobbed him off. Of course it is right that he did not actually supply any heroin directly to him. But there is nothing in the statute that requires an intent to actually make a supply. The offence is simply one of offering to supply. The offence is complete if and when an offer to supply heroin is made. It is irrelevant that a defendant may have had no intention to actually fulfil that offer by supplying heroin. Equally it is irrelevant whether a defendant is actually in possession of heroin at the time. It is irrelevant whether a defendant had easy access to heroin at the time. It does not matter that no heroin was in fact supplied. The question simply is in any case like this: did the defendant offer to supply on all or any of the three occasions to Terry? Offer is the crucial word.

Now we will look at some of the evidence in a moment and the background to it. The defence urge you that you must take an overall view of these conversations. Do not just pick words out here and there it is suggested and certainly you must consider the entirety of these conversations, but obviously you may take the view that some parts of the conversations will be more central and more relevant to the issues that you have to decide, but put them in context."

Later, when dealing specifically with the conversation on 7th January, the subject of the second count, he said:

"The prosecution say that, in effect, he is keeping his options open, but that the offer is an offer that is made at a much earlier stage in the conversations on 7th. But it is a matter for you. Interpret it, read it, make up your mind what is meant and see what you believe that those words actually mean."

16. This appeal raises a number of related issues going to the validity of the Recorder's ruling of a case to answer and to his directions to the jury, namely whether to qualify as an offer for this purpose: 1) it must be made genuinely in the sense that the offeror intends to fulfil it and expects to be able to do so; 2) whether an offer within the meaning of the provision can be retrospectively expunged by its later withdrawal; and 3) whether, on the facts, what was said by the appellant was sufficiently precise to amount to an offer and was, in any event, an offer to supply, as distinct from an acceptance of, or acquiescence in, an offer to buy.
17. As to the genuineness of the offer, Miss Thorne, who appeared again for the appellant on this appeal, submitted that this is not an absolute offence since Parliament has not clearly indicated that it is one of strict liability. There is therefore, she maintained, a presumption that mens rea is an essential ingredient of the offence. She sought to distinguish the various authorities of this Court to the contrary on the basis that they were all dealing with a defence contention that there was no offer under this provision where its subject matter did not exist or was not in fact a controlled drug. She said that the fact that those authorities decided that the offence could be committed without an intention to supply a controlled drug did not exclude the need to establish some mens rea, namely, an intention to make an offer. Such a mens rea, she submitted, was relevant in a case such as this where the defence was that the so-called offer was just a bluff, without the intention or belief that the person to whom it was made would believe it to be genuine.
18. It followed from her submission that, to constitute an offer under this provision, the prosecution must prove that the offeror intended the offeree to believe that the offer was genuine. The failure of the Recorder to direct the jury to this effect, she maintained, was fatal to the safety of the convictions, since the jury, when considering the manner and effect of the appellant's words, should also have considered his intention in using them.
19. Mr Robin Johnson, for the Crown, submitted that all the prosecution had to prove was the making of an offer to supply controlled drugs, and that it was irrelevant whether the defendant had any controlled drug in his possession or whether he intended to supply a controlled drug or something else or nothing at all. It was enough that he made the offer.
20. It is clear law that the offence is committed whether or not the offer is genuine. In R v Goodard [1992] Crim LR 588, CA, Swinton Thomas J (as he then was), giving the judgment of the Court, held that the offence is committed where a bogus offer to supply a controlled drug is made, since there is nothing in section 4(3)(a) that requires an offer must be made with genuine intent to provide what is offered. The Court added that the construction contended for by the applicant in that case would make it almost impossible for the prosecution to meet a defence that the defendant did not intend to carry out the offer.
21. As Staughton LJ, giving the judgment of the Court in R v Mitchell [1992] Crim LR 723, CA, observed, although an offer may be by words or conduct, where it is by words alone one has to judge from the words whether it is an offer to supply a controlled drug. If a person knowingly makes an offer to supply in words which had that effect, that is the offence.
22. In Mitchell it should be noted the Judge directed the jury that it was irrelevant whether the defendant had any controlled drug in his possession or whether he had intended to supply a controlled drug or something bogus. It was enough if they were sure he had made the offer.
23. As the editors of the current edition of Archbold in paragraph 26-43 note, Goodard was applied and Mitchell was approved in this Court in R v Gill [1993] 97 Cr App R 215. There, the Court upheld a conviction of conspiracy to offer to supply controlled drugs, even though the intention was to cheat those to whom the offer was made by supplying vitamin pills. McCowan LJ, giving the judgment of the Court, expressly approved the judgment in Goodard.
24. The allowance by the Court in R v Kray [1999] 2 Archbold News 3, of a possibility that an offer made in such circumstances as to be so obviously a charade or joke would not amount to an offer in any real sense does not run counter to those authorities. Reverting to Staughton LJ's approach in Mitchell, the important thing is the effect of the words, to which I would add in this context, having regard also to the way in which they were said and any other relevant circumstances apparent to the offeree at the time. In short, whether the words uttered and the manner in which they were uttered had the appearance of an offer for this purpose is essentially a matter of fact for the jury. The genuineness or otherwise of the offer, or indeed whether, notwithstanding appearances, it was meant as a joke, would be irrelevant.
25. Accordingly, the Court has no hesitation in concluding that the Recorder's directions to the jury as to the irrelevance of the appellant's intent and of his ability or inability to honour his offers were in accordance with the law.
26. We turn to Miss Thorne's submission that the prosecution must at least prove mens rea in the sense of an intention to make an offer to supply a controlled drug which the offeree would believe to be genuine. This, so far as we can understand it, appears to be a suggestion that, although the prosecution need not prove the genuineness of an offer to supply a controlled drug, it must prove that the defendant intended to make it look genuine.
27. As a matter of practical proof, such a task would be indistinguishable from proving to a jury that the words and the manner and the circumstances in which they were spoken in fact amounted to an offer. If it were anything more than that, it would drive a coach and horses through this provision, designed, as it is, to prevent drug dealers or purported drug dealers from plying their trade. In those cases where, on the authorities, a defence of lack of intent to supply would not avail them, they could still, if Miss Thorne were right, rely on the fact that, unknown to the offeree, they were only joking and did not intend, despite all outward appearances, the offeree to take them seriously.
28. We turn now to another aspect of Miss Thorne's submissions, (there was a good deal of overlap in all of them), the effect of withdrawal of an offer. It must follow from the Court's answer to the first issue that when the offer is made, the offence is complete, whatever lies behind it, and that its subsequent withdrawal or revocation cannot affect that. This has nothing to do with the meaning of "offer" in the law of contract, which in any event would be of little help in this context. Although in contract an offeror may withdraw his offer at any time up to acceptance, if he does so it does not mean that he never made such an offer, simply that he is not bound by acceptance, if there is one, after withdrawal. The only possible relevance of a later withdrawal of an offer in the same or closely connected conversations is - when looking at the conversation or conversations as a whole - it is not clear whether an offer was made at all.
29. We mention this issue because Miss Thorne gave it primacy in her grounds of appeal, both in relation to the Recorder's rejection of her submission of no case to answer and by way of complaint of his failure to direct the jury on the point. It did not receive so much focus in her amended skeleton argument. But she has returned to it in argument, albeit in a less direct way than she put it to the Recorder.
30. For the reasons we have given, the Recorder was correct in the ruling that he gave, and as it was reflected in his directions to the jury. Once an offer is made within the provisions of this section any later withdrawal of it cannot have the effect -- and we use a neutral word here -- of expunging the original.
31. Another strand of Miss Thorne's submission was that this was not, looking at the conversations as a whole and in their individual parts, an offer but, at the most, an acquiescence in an offer by Terry to buy, and that such an acquiescence is not capable of constituting an offer for the purpose of this provision.
32. So far as we can tell, Miss Thorne did not include this complaint in her submissions of no case or in her grounds of appeal. It was, however, one of her main points in her submissions to this Court. She maintained that, looking at the whole of the conversations on 2nd and 7th January, there was no offer by the appellant, only an acquiescence in offers by Terry, an acquiescence, moreover, that he later withdrew. She submitted that the distinction is important because the rationale of the offence must be to protect the public from the mischief of drug dealers plying their trade, not to punish drug addicts for reluctantly agreeing to help other drug addicts satisfy their habit, and then reneging on their agreement.
33. Allied to this complaint, which was essentially a matter of fact for the jury when considering whether the appellant offered Terry heroin, was Miss Thorne's complaint that the words used were too vague to amount to an offer for the purpose. He mentioned no specific quantity or weight or price, and no date or time for the supply. At the most, she submitted, the words indicate that the appellant was expressing a general willingness to be approached by Terry for drugs in the future - little more in effect than saying that he was a drug dealer. She did not, however, go so far as to suggest that the offer must be for immediate and not for some future supply, and she acknowledged that the authorities indicated that the principles of the law of contract as to what constitutes an offer do not apply to this offence. But she argued nevertheless that it would be wrong in principle to allow such a vague conversation or conversations, which could not be construed as contractual offers, to amount to an offer in a provision like this making it a criminal offence.
34. As to both the acquiescence and the vagueness points, it was, in our view, essentially a matter for the jury, looking at all that was said by the appellant and Terry and the surrounding circumstances, whether what took place amounted in ordinary parlance to an offer to supply a controlled drug. The fact that it may have been an offer of a future supply on some unspecified date, and at an unspecified time or place, is irrelevant. Nor is it a prerequisite of such an offer that it should satisfy or approach satisfying contractual requirements that an offer, to be capable of acceptance, must be sufficiently specific in its material terms - amount, price, time and place of delivery and so on - as to produce, if accepted, sufficient certainty of terms for rendering it contractually binding.
35. As to the acquiescence point and the purpose of this statutory provision, it seems to us that it is aimed at a market - including one in which many potential buyers are likely to be drug addicts approaching those who are holding themselves out as offering illicit drugs for sale. It is thus a market in which there may be a potential buyer anxious to satisfy his habit, and who, therefore, is often likely to be the one importuning, and that those who are offering drugs for sale to such a clientele are a legitimate target of this provision. It is immaterial who takes the initiative if, in the course of what follows, there is an offer to supply. Thus, as Sir Edwin Jowitt observed in the course of argument, it is not a matter that is confined by the straitjacket of principle of contract law.
36. In our view, the Recorder was, on the facts, entitled to leave to the jury the question whether the exchanges between the appellant and Terry amounted to an offer by the appellant to supply controlled drugs. And, in the passages from his summing-up that we have set out, and also in other passages, he clearly directed the jury that they should look at the words spoken and the circumstances in which they were spoken and decide for themselves whether they amounted to offers within the meaning of the provision. In our view too, his direction cannot be faulted. To have done any more would have been to usurp or improperly restrict the jury's consideration and assessment of what, in relation to this simple English word in this context, was essentially a matter of fact for them. Accordingly, we dismiss the appeal.