England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No. 2007/06255/B2 Royal Courts of Justice The Strand London WC2A 2LL
		23 April 2008

THE LORD CHIEF JUSTICE: I will ask Mr Justice Pitchford to give the judgment of the court.

MR JUSTICE PITCHFORD:

1. This application for leave to appeal against conviction has been referred to the full court by the Registrar.
2. At Derby Crown Court the applicants faced an indictment containing five counts. Count 1 charged conspiracy to aid and abet production of the controlled Class C drug (cannabis), contrary to section 1(1) of the Criminal Law Act 1977. Count 2 charged them with conspiracy to counsel the production of cannabis, contrary to the same statutory provision. Count 3 charged Mr Fenwick with producing cannabis, contrary to section 4(2)(a) of the Misuse of Drugs Act 1971. Count 4 charged Mr Fenwick with possessing cannabis with intent to supply, contrary to section 4(1) of the Misuse of Drugs Act 1971. Count 5 charged Mr Fenwick with unlawful possession of the controlled Class B drug amphetamine, contrary to section 5(1) of the Misuse of Drugs Act 1971.
3. In a second indictment Mr Fenwick was charged with possession of a firearm without a certificate.
4. On 15 May 2007, Mr Fenwick pleaded guilty to count 3 of the first indictment (producing cannabis) and to the second indictment charging the firearms offence. Count 5 of the first indictment (possession of amphetamine) was severed and now lies on the file.
5. Counts 1-4 of the first indictment proceeded to trial before His Honour Judge Price. On 2 November 2007 all three applicants were convicted of count 1. Mr Fenwick and Mr Blackshaw were convicted of count 2, and Mr Fenwick was convicted of count 4. On 10 January 2008 Mr Kenning and Mr Fenwick were sentenced to terms of imprisonment as follows. On count 1, Mr Kenning was sentenced to 21 months' imprisonment. On counts 1 and 2, Mr Fenwick was sentenced to 21 months' imprisonment, concurrent; on count 3, nine months' imprisonment, consecutive; on count 4, nine months' imprisonment, concurrent; and on the second indictment, six months' imprisonment, consecutive, making a total of three years' imprisonment. On 11 January 2008, in respect of his convictions on counts 1 and 2, Mr Blackshaw was sentenced to concurrent terms of a suspended sentence order.
6. The three applicants now seek leave to appeal against their convictions on count 1 on the first indictment; Mr Fenwick and Mr Blackshaw seek leave to appeal against their convictions upon count 2; and Mr Fenwick seeks leave to appeal against his conviction upon count 3.
7. The essence of the prosecution case was that Mr Kenning and Mr Fenwick were partners in a business called DP Enterprises. They traded in Derby as Hydroponic Wholesale, and as retailers at the Hydroponic Centre by selling and offering for sale seeds and equipment required for the cultivation of cannabis plants and the harvesting of their crop. Mr Blackshaw was employed as a shop assistant in the Hydroponic Centre.
8. There was evidence concerning count 1 upon which the jury concluded that, by supplying equipment and seeds, the applicants were assisting customers unlawfully to produce cannabis. Upon count 2 there was evidence upon which the jury concluded that Mr Fenwick and Mr Blackshaw were giving specific advice to customers.
9. However, all three applicants were charged not with aiding or abetting, counselling or procuring the offence of unlawful production, but with conspiracy (in count 1) to aid and abet and (in count 2) conspiracy to counsel or procure that production.
10. It is argued on behalf of the applicants that, since they were charged under section 1(1) of the Criminal Law Act 1977, the prosecution was required to establish that the agreement, if carried out, would necessarily involve the commission of a criminal offence by one or more of the parties to the agreement. No other person (known or unknown) was named as a conspirator in counts 1 and 2. There was no evidence that the conspirators, or any one of them, intended in pursuit of the agreement to produce cannabis. The prosecution case was that customers who were not parties to the agreement should purchase the equipment in order to produce cannabis.
11. Secondly, it is argued on behalf of the applicants that if the result the conspirators agreed should be achieved was aiding or abetting or counselling or procuring the unlawful production of cannabis, rather than the production itself, that was not a criminal offence for the purposes of section 1(1) of the Criminal Law Act 1977. The reason is that, while incitement to commit an offence is itself a common law offence, aiding and abetting, counselling or procuring is not. If a criminal offence is committed, secondary parties who aid, abet, counsel or procure its commission may be tried, indicted and punished pursuant to section 8 of the Accessories and Abettors Act 1861, as amended by the 1977 Act. Section 8 created the procedure by which aiders and abettors may be tried; it did not, it is submitted, create a new offence.
12. This, the applicants contend, is the effect of the decision of the court in R v Hollinshead [1985] 1 All ER 850. In Hollinshead the prosecution appealed to the House of Lords, where the respondents' convictions for conspiracy to defraud were upheld by their Lordships: see the report at [1985] 1 AC 975. It followed that a decision upon the lawfulness of a conviction for conspiracy to aid and abet was not required in the House of Lords. Their Lordships agreed that if the issue arose on a future occasion, it should be considered afresh.
13. The Crown have appeared before us represented by counsel who prosecuted this case in the court below, and by Mr Spencer QC (who did not). They wish to advance, in response to the applicants' application for leave, the assertion that aiding and abetting, counselling or procuring the criminal offence was at the time of the passing of the Aiders and Abettors Act 1861 an offence known to the common law. Mr Spencer would wish to advance that argument with the benefit of analysis of at least further statutory provisions which are relevant to the issue.
14. We consider that the applicants should have leave to pursue their arguments before the full court and that full argument should be addressed to the court from both sides.
15. Mr Fenwick also seeks leave to appeal against his conviction under count 4 (possession of cannabis with intent to supply). He asserts that he was prejudiced by the evidence admitted to prove counts 1 and 2. Further, he contends that the judge failed adequately to place the applicant's defence before the jury: that the applicant was growing and harvesting for personal consumption and not for sale.
16. We have considered the terms of the summing-up, including the judge's exhortation to the jury to consider the evidence in respect of each count separately: see transcript page 4G-5B. We entertain reservations whether these grounds have substance. Nevertheless, we conclude that the court should consider them after full argument.
17. Accordingly, the applicants have leave to appeal upon each ground.
18. There remains the issue of representation orders and the application for bail by Mr Kenning.

MR MATTHEW: My Lord, dealing with the question of bail, Mr Kenning received a 21 month sentence. He has been in custody since January. His earliest release date is, I believe I am right in saying, in November. This is a case where the Crown are seeking now to advance some argument that eluded this court in a case that was directly in point, Hollinshead, which went to the House of Lords. That is a long-standing case; it has survived for some 24 years without anyone attempting to put it to what the Crown say is in fact the true position. We therefore say that Mr Kenning has really very strong grounds of appeal.

I would like to go a little further on the question of remoteness because there has been some discussion or submissions made to the court by the Crown on that point. I accept that the Crown's case at trial was that the wholesale and the retail business were in effect identical. Nonetheless, the case advanced by Mr Kenning -- in his defence case statement and at trial, and indeed as appears in the summary -- was that he was running a wholesale business and not a retail business. Any association he had with the shop was purely to help out on an occasional basis. Whatever the truth of that, if the Crown's current position is to be advanced -- and a factual distinction is sought upon it -- the jury would have to be directed properly on that in order to make a finding. No such direction was given. So whatever the eventual finding brings as to whether or not aiding and abetting is a common law offence in any event, in my submission the summing-up, having omitted that point, is not a valid summing-up for Mr Kenning to remain convicted. On those grounds I do invite the court to grant him bail.

(The court conferred)

THE LORD CHIEF JUSTICE: We consider that it is an appropriate case for the grant of bail in relation to these particular offences. So far as your client is concerned, there are no other matters and therefore he will be granted unconditional bail.

MR MATTHEW: Thank you very much.

THE LORD CHIEF JUSTICE: How about representation? There is only one point of law.

MR MATTHEW: Should the defence have leading counsel? Is that the question?

THE LORD CHIEF JUSTICE: Yes.

MRS JUSTICE DOBBS: Should there be three of you with leading counsel?

MR JUSTICE PITCHFORD: Strictly speaking, are you applying?

MR MATTHEW: I find it a little difficult not knowing quite what the Crown's case is.

THE LORD CHIEF JUSTICE: The best thing might be to give you leave to apply for leading counsel once you have seen the case that is raised on behalf of the prosecution. You may consider that it is not a case that is going to call for leading counsel.

MR MATTHEW: May we renew that application?

THE LORD CHIEF JUSTICE: Yes, apply in writing, if you wish to, to the Registrar.

MR MATTHEW: Thank you very much.

THE LORD CHIEF JUSTICE: How about Mr Fenwick?

MR BECK: My Lord, Mr Fenwick continues to serve sentences apart from those imposed on counts 1 and 2.

THE LORD CHIEF JUSTICE: Yes.

MR BECK: Depending upon the time scale of the appeal hearing, I shall keep a sharp eye on when he might be expecting to be released.

THE LORD CHIEF JUSTICE: Yes.

MR BECK: That expectation has not yet been --

THE LORD CHIEF JUSTICE: So you will keep your powder dry and come back if and when?

MR BECK: My Lord, yes.

THE LORD CHIEF JUSTICE: Very well.

MR BECK: And similarly, if I may say in relation to representation, it might be appropriate for all three appellants to have one leading counsel between them, as it were, but I await with interest, as I did this morning, the development of this argument by the respondent.

THE LORD CHIEF JUSTICE: Very well.

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