England and Wales Court of Appeal (Criminal Division) Decisions

COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PRESTON CROWN COURT
His Honour Judge Badley

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/04/2010

Lord Justice Leveson:

1. The production of the controlled drug cannabis contravenes section 4(1)(a) of the Misuse of Drugs Act 1971 but it is not illegal to offer for sale or supply the paraphernalia associated with smoking cannabis and nor is it illegal to offer for sale or supply the equipment necessary to grow the plant, books which explain how cannabis may be grown or, indeed, cannabis seeds. As a result, there are a number of shops and other outlets which offer these goods for sale but it is obviously very important that these premises do not overstep the line and incite the commission of an offence.
2. On 24 September 2009, this appellant, James Jones, a shopkeeper operating a business known as Grow Republic in Blackpool, was convicted at the Crown Court at Preston before His Honour Judge Badley and a jury of four counts of incitement to produce cannabis. He was later sentenced to a term of 10 months imprisonment. In the same proceedings, Kris Hollyhead, an employee of the appellant working in the shop, pleaded guilty to three counts of incitement to produce cannabis for which he was sentenced to 20 weeks imprisonment suspended for 12 months and ordered both to complete 120 hours of unpaid work and to make a contribution towards the costs of the prosecution. With leave of the single judge, the appellant appeals both conviction and sentence.
3. The facts fall within a small compass. The shop of which the appellant was the proprietor sold smoking paraphernalia and hydroponics equipment. As a result of a police operation targeting such shops in the north-west, an undercover officer called "John" was sent into the shop on a number of occasions in March and April 2008 to make a test purchase. The evidence before the court included transcripts of the covert recordings of the appellant's conversations with the officer; he also produced the appellant's business card which identified the website address as www.weedcity.com.
4. The prosecution case was that the officer "John" visited the shop which was openly selling equipment clearly intended for growing cannabis. Posing as a novice would-be cannabis grower, he asked the appellant for advice and, after what was alleged to be a sham or pretence that they were talking about tomatoes, this advice was freely given. It was contended that this advice and the sale of the equipment amounted to incitement. The four counts related to the four different days when the officer visited the shop.
5. The defence case was that the appellant was selling items which were not in themselves illegal and he had taken steps to ensure that he stayed within the law. During the conversations with the officer, the appellant did not mention cannabis: he told him that it was illegal to grow cannabis and he could only talk about tomato plants. He pointed out notices in his shop advising that it was against the law to produce cannabis. The advice he gave and the sale of the equipment were lawful and did not amount to incitement.
6. We turn shortly to the evidence. "John" spoke about his role and produced transcripts of his conversations with the appellant. In cross examination, he stated that he was sent into the shop because it sold items relating to the growing of cannabis. He agreed that the appellant would only talk about growing vegetables and that he read out a disclaimer notice on 2 April which stated that it was illegal to talk about cannabis. He agreed that neither of them mentioned cannabis, but said that they both understood that that was what they were talking about. He agreed he had been persistent in his questioning but denied inciting or pushing the appellant to commit an offence.
7. Stephen Holme was an ex-police officer whose job was to analyse drug markets for Derbyshire Police. He gave evidence about the growing of cannabis and the equipment used, along with the books and magazines sold in the shop for those interested in cultivating cannabis.
8. The appellant handed in a prepared statement in his police interview on 8 October 2008 which included the following statement:

"Mr Jones accepts he is the proprietor of Grow Republic and has been for five years. He says it is not a criminal offence to sell cannabis seeds, hydroponic equipment or the 'Homegrower's Manual'. "

Thereafter he made no comment. The appellant did not give any evidence but produced the disclaimer notice which was displayed in the shop and which had been pointed out to the undercover officer.

9. Ms Arshad, who also appeared for the appellant in the Crown Court and has done so before us with conspicuous skill, takes a number of points. These touch upon prosecution disclosure, abuse of process, admissibility of evidence and the summing up each of which she argues is on its own sufficient to demonstrate that this conviction is either wrongly grounded in law or unsafe. We deal with them in turn.
10. First, it is submitted that the Crown should have disclosed all documents relevant to the authorisation of the undercover operation pursuant to the Code of Practice produced pursuant to the Regulation of Investigatory Powers Act 2000. It was relevant, so it is argued, because it would disclose the parameters of the operation and so reveal whether or not the undercover officer had stayed within those parameters. The Crown objected to disclosure on the ground that it did not satisfy the relevant test, neither undermining the prosecution case nor assisting the defence case. Having seen the document, the Judge asserted that the authorisation had been properly given but provided no further assistance. It did not weaken the prosecution case and although it echoed the material provided, so that it was possible to test the officer's actions against the briefing, it did not assist the defence case. On that basis, it did not fall for disclosure. Further, the question to which this disclosure was addressed concerned the extent to which the activity of the police officer could be justified in law: he could not be authorised to go beyond what the law permits and whether he did step outside appropriate lawful parameters fell to be determined by reference to what he did (recorded on tape) rather than what he was authorised to do. In any event, having regard to the judge's analysis, failure to disclose could not render the verdicts unsafe.
11. The second, more substantive, complaint concerns the submission that the prosecution of this appellant represented an abuse of process on the basis that if, as alleged, the offence of incitement had been committed, the undercover officer had trapped the appellant into committing it. Ms Arshad referred to the well known authority of R v Looseley; AG's Ref (No 3 of 2000) [2001] UKHL 53, [2002] 1 Cr App R 29 and the ultimate question (as posed by Lord Mackay at [34]) as whether "the State through its agents had lured the accused into committing an act or acts forbidden by law for which the state is now seeking to prosecute him". Lord Nicholls described (at [23]) as "a useful guide":

"… to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise the word unexceptional. The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances."

12. Ms Arshad argued that when (as was the fact) the appellant told the officer that he could not talk about cannabis, it is likely that an ordinary member of the public, without any other motive, would have desisted from the topic with the result that the technique of test purchasing could be criticised as "virtue testing". During the course of argument, however, given the make up and obvious specialisation of the shop, she conceded that the appropriate test would involve a member of the public interested in growing cannabis, that is to say, one who was prepared to break the law. Once that concession is made, it is simply not tenable to suggest that such a member of the public would have desisted: had the prospective purchaser not been prepared to consider breaking the law, there would have been no purpose (save only for the intellectually curious) in going into the shop.
13. Thus the context within which this discussion took place is of very real significance. The goods offered for sale in the shop (including bongs, grinders and the like) were all clearly relevant to the production of cannabis. The judge noted the website address on the appellant's business card and the fact that the officer had bought a book in relation to cannabis from the appellant's employee. She also referred to the appellant's response to a request for advice ("I could tell you what's best for growing vegetables, mate, but I don't discuss anything else"), his reference to a printed sign to the effect that the selling of hydroponics was for the lawful cultivation of herbs, vegetables and flowers with the comment that it was against the law to talk about cannabis and the fact that he said he was talking about tomatoes.
14. The judge went on:

"Now according to the prosecution this is a sham because the defendant thought that by talking about tomatoes but meaning cannabis this would circumvent the law. The context is important because the undercurrent in the conversations was that the defendant was really talking about cannabis. The defendant had the choice to say nothing at all to John, but instead gave advice to John which he pretended to be about tomatoes. In subsequent conversations the same pattern continues advice is given about growing cannabis, but pretence is made that he is talking about tomatoes.

Miss Arshad submits that the officer was asking direct questions, and that Mr Jones was giving advice or encouragement only in answer to the direct questions. She submits that the questions by the officer went further than the behaviour of a normal customer and was luring the defendant into crime.

Having considered all of these matters, it seems to the court that the artificial boundaries of talking about cannabis as though it were tomato cultivation does not fool either John, the undercover officer, or indeed the defendant himself. The fact that John sometimes overtly refers to cannabis and the defendant does not cannot detract from the fact that the conversations are indeed about cannabis. It certainly does not show the defendant as willing to give advice only that he does not wish to call it cannabis. Far from being reluctant he is helpful and practical, just so long as the pretence is kept up. The fact that the defendant is answering questions put to him does not take away from the fact that it is open to the jury to find that this was active encouragement to commit crime being given.

Miss Arshad invites the court to examine each of the conversations and I do. However, the effect must be cumulative in that if it is the same two people having conversations on the same topic, it is open to the jury to find the whole of the conversations relate to cannabis, whether or not the defendant talks about tomatoes."

15. In our judgment the approach of the learned judge on this issue cannot be faulted. As Lord Hutton made clear in Looseley (at [102]), it is necessary to have in mind that a dealer in drugs will not voluntarily offer drugs to a stranger unless first approached and that this approach may need to be and can be persistent without crossing the line. The decision in Moon [2004] EWCA Crim 2872 is clearly distinguishable. That concerned the supply of a small quantity of heroin to an undercover officer at her request by a heroin addict who obtained the drug from a dealer but who it was not otherwise suggested was a dealer or runner for a dealer. Although it was accepted that the police did not have a specific basis for targeting this shop premises and its staff as having incited the production of cannabis, it was entirely appropriate for undercover officers to test the way in which it operated. This prosecution was not an abuse of the court's process but properly engaged the court in a task for which (assuming sufficient evidence as a matter of law) the jury were uniquely qualified to judge: if the jury were not sure that the appellant had in fact incited the officer to produce cannabis because the references to tomatoes were not a sham or he did not go sufficiently far in what he said, he was entitled to be acquitted.
16. The third complaint made by Ms Arshad concerns the judge's failure to accede to a submission of no case to answer. As part of her argument in relation to abuse of process and by way of proposed preliminary issue, she argued that, at its highest, the advice which the appellant gave could only amount to assisting another in the cultivation of cannabis which, by virtue of R v Kenning, Blackshaw and Fenwick [2008] EWCA 2 Cr App R 32, could not be established because a necessary ingredient was the actual commission of the offence, the conduct complained of was not capable of amounting to incitement. Judge Badley concluded that the Crown was entitled to pursue such a charge: whether there was sufficient evidence to justify leaving the charge to the jury was more appropriately raised as a submission at the conclusion of the evidence adduced by the prosecution. In that regard also, she was correct: indeed, to take the point as an abuse of process is to misunderstand the very limited jurisdiction that this concept embraces.
17. That brings us to the submission of no case to answer. Ms Arshad argued before the judge that the appellant's conduct could not be said to amount to incitement which required more than simple encouragement but "urging" or "spurring on". In Marlow [1997] EWCA 1833 Crim, (1997) Crim LR 379, the Divisional Court made the point that encouragement must "involve words or actions amounting to a positive step or steps aimed at inciting another to commit a crime" and in R v Smith and Turner [2004] EWCA Crim 2187, Clarke LJ (as he then was) approved a dictum of Holmes JA in the South African case of Nkosiyama (1966) 4 SA 655 at 658 when he spoke of an inciter as:

"…one who reaches and seeks to influence the mind of another to the commission of a crime. The machinations of criminal ingenuity being legion, the approach to the other's mind may take various forms, such as suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or arousal of cupidity".

18. Although using the word to be defined within the definition is not necessarily helpful, the thrust of the point is made clear by Clarke LJ that not every encouragement necessarily amounts to incitement. He went on:

"Provided it is clear that the encouragement referred to involves words or actions amounting to a positive step or steps aimed at inciting another to commit a crime, that seems to be a satisfactory statement of the position. It makes clear that whatever the intention of the inciter, if what is incited would, if done, not be a crime then the offence of incitement has not been committed."

19. It was common ground that the offering of goods for sale which can be used for an illegal purpose is not enough. Thus, shops such as Grow Republic, are not breaking the law simply by doing so, in the same way that a gardening centre would not be breaking the law by selling hydroponics equipment which could be used either for the production of herbs or for cannabis. What is important is the existence of specific evidence of incitement to commit the offence: although the make up of the shop provides the context, the language used by the appellant is also critical.
20. Quite apart from the question of the actus reus of incitement, Ms Arshad also argued that there was no evidence that the appellant intended to incite: he was, she submitted, unconcerned as to what the officer would do with the equipment but merely wished to sell it. She argued that everything he said demonstrated that he did not intend to incite the commission of an offence: he refused to discuss cannabis; he referred to disclaimers; he said that he could not sell growing equipment together with seeds and did not want to be in a legal situation. She argued that the very fact that he did not wish to break the law demonstrated that he did not have the intent to do so.
21. Judge Badley dealt with both aspects of this submission. As to the actus reus, the "spurring on", she observed that the appellant was a shopkeeper giving advice including advice as to the practical application of what this novice grower needed, going on to sell his equipment and offering a cheaper deal in relation to the sale of a tent. Although he uttered disclaimers, the Judge went on (in the context of there being material for the jury to consider):

"But it does not seem to me to be detracting from the positive encouragement with the practical positive steps …. He was going on to give the positive encouragement for a novice to engage in the activity."

22. As for the mens rea or intent, she said:

"It seems to me that there is evidence which is proper to go to the jury in relation to intent because the pretence throughout was not overtly looking at the use of the word cannabis because those words are not there, but the subtext in the whole of the conversation, the context of the shop, and indeed, the undercurrent throughout was that James Jones knew quite well the purpose for which he was selling the equipment, and indeed, the intention that the person who he was selling the equipment to was going to be able to produce the cannabis because otherwise the whole exercise would be pointless".

23. In our judgment, 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). This ground of appeal also fails.
24. In her skeleton argument, but not further deployed orally, Ms Arsad also complained of the admission of the convictions of the employee, Hollyhead and the way in which the matter was left to the jury. Judge Badley concluded that the prosecution alleged a joint enterprise between the pair of them and so was admissible. In our judgment, she was right to do so. The convictions were clearly admissible under section 100 of the Criminal Justice Act 2003 not merely as important explanatory evidence but also as having substantial probative value in relation to a matter which was in issue in the proceedings namely whether the premises owned and run by this appellant were, in fact, being used to incite the commission of the offence of the production of cannabis. To that extent, the pleas of Hollyhead did potentially help in relation to the case against the appellant and the learned judge's subsequent direction in the summing up (to the effect that the only purpose of this evidence was to explain why the jury were not also considering his case) was overly favourable to the appellant.
25. The same can be said of the direction on joint enterprise which again was criticised in the skeleton argument but not developed orally. The judge provided a standard direction on joint enterprise, put the prosecution case that the appellant was the boss and had decided who was going to sell what (although only part of what had to be proved) and the defence case that if Hollyhead acted illegally he was doing so on his own and against the appellant's express instruction. She then directed the jury that if they were sure he committed the offence either on his own or had some part in committing it with Hollyhead with the intention of doing so, he was guilty. The difficulty is that the jury did not hear the evidence against Hollyhead and so the judge said that they should not speculate in relation to the evidence against him and should concentrate on the allegations against Mr Jones. These directions were somewhat confused and not as helpful as they might have been because if the jury did not know what Hollyhead had done, it is difficult to see how they could decide if the appellant was jointly responsible with him. They could only focus on the evidence they had heard. Again, it may be that this approach to the case was overly generous to the appellant. It is sufficient to say that any failing in the summing up does not render the verdicts unsafe. The appeal against conviction is thus dismissed.
26. In relation to sentence, Ms Arshad recognised that the appellant had served the custodial part of the sentence imposed by the judge and remained on licence only for a further two months. She pointed to the fact that this sentence was the highest of all those imposed arising out of the eight prosecutions which followed this operation, although it is to be noted that each of the others prosecuted had pleaded guilty. She also pointed to alleged disparity in relation to criminality. In our judgment, after a trial and having dealt with a number of similar cases, this Judge was in a unique position to determine the appropriate sentence. An adjustment for any of the reasons advanced by Ms Arshad would represent tinkering because it cannot be said that this sentence was manifestly excessive. This appeal is also dismissed.