England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		5th May 2011

1. LORD JUSTICE RICHARDS: On 2nd November 2009, in the Crown Court at Leeds, the appellant pleaded guilty to producing a controlled drug of Class B, cannabis, contrary to section 4(2)(b) of the Misuse of Drugs Act 1971. It was the appellant's case that he was producing the cannabis for his own consumption. The prosecution did not accept that assertion, having regard to the volume of cannabis being grown, and accordingly added a second count to the indictment, alleging possession of cannabis with intent to supply contrary to section 5(3) of the 1971 Act. On 14th June 2010, after a trial before His Honour Judge Hoffman and a jury, the appellant was convicted on that count and was sentenced to three years' imprisonment. A concurrent sentence of two years' imprisonment was imposed for the offence of production. The appellant now appeals, with leave granted by the full court, against his conviction on the count of possession with intent to supply and also against sentence.
2. The case arose out of a police search of the appellant's home address in June 2009. In the loft area, described by officers as a small cannabis factory, there were 35 cannabis plants, of which three were seized. The production equipment involved fans and ventilation and extractor systems. The floors and walls were lined. Elsewhere in the house police found four clear plastic bags containing green vegetable matter, a set of digital weighing scales, a small cannabis grinder and a further number of small clear plastic bags.
3. The appellant's account in interview, as expanded on in his evidence at trial, was that he lived alone in the house and was a heavy cannabis user, spending around £40 a day on cannabis when purchasing it. He had decided to grow cannabis for his own use in an attempt to save money. He had been cultivating the plants for about a week. He had been loaned the equipment by somebody whom he declined to name. He did not intend to supply cannabis, but only to smoke the drug himself.
4. The prosecution case was that 35 plants would produce far more cannabis than the appellant could reasonably consume himself and that he was growing the plants with the intention of selling the cannabis, or some of it, once it had matured.
5. At the trial there was expert evidence from Julian Dunnill for the prosecution and from Greg Poulter for the defence, including a joint report setting out areas of agreement and disagreement. The experts agreed that the plants were three to four weeks old and some two to three months from being harvested. They disagreed on the number of plants that were likely to mature and on the method to be used for calculating the potential yield. The prosecution also called a police officer, PC Reed, to give expert evidence as to value.
6. The first and main issue before the court arises out of the fact that, as was accepted by the prosecution expert, there was no useable or saleable cannabis present in the young plants being cultivated by the appellant and the time span for growth to maturity was a matter of months. This led to a brief submission of no case to answer before the trial judge on the basis that the appellant had no intention to supply what he then possessed. He intended to supply the crop which was not yet in existence. The judge described that submission as ingenious but said that it most emphatically did not find favour. It is submitted in ground one that the judge was wrong to reject that submission.
7. In granting leave to appeal, the full court made this observation:

i. "Had this submission been advanced in amplified form, we anticipate that it would have been contended that the useable part of each plant (that is the part which would have been supplied to any purchaser) would have been the flowering heads. Since the plants at the date of the applicant's arrest were in their infancy, there were as yet no flowering heads. Thus it would have been argued that the applicant was not as yet in possession of the cannabis that it was alleged that he intended to supply."

8. The court was satisfied that this was an arguable point. Mr Shepherd, for the appellant, has developed the argument in various ways.
9. He has first drawn attention to the terms of the relevant statutory provisions. Section 5(3) of the 1971 Act provides:

i. "Subject to section 28 of this Act, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of this Act."

10. The relevant offence under section 4(1) is of course the offence of supplying a controlled drug to another.
11. The controlled drug specified in the relevant count was cannabis, which is defined as follows in section 37 of the 1971 Act:

i. "'cannabis' (except in the expression 'cannabis resin') means any plant of the genus Cannabis or any part of any such plant (by whatever name designated) except that it does not include cannabis resin or any of the following products after separation from the rest of the plant, namely —

(b) mature stalk of any such plant

(c) fibre produced from mature stalk of any such plant, and

(d) seed of any such plant."

12. Mr Shepherd submits that section 5(3) requires the prosecution to prove that the defendant possessed a controlled drug with a then present intention of supplying what he then possessed. Possession and intention must be coterminous. The appellant was in possession of immature cannabis plants. An intention to sell the yield or harvest from those plants once they matured did not amount to an intention to sell the plants which he then possessed. The intention could only be to supply that which might come into being and be possessed in the future. This is in contrast to the situation where, for example, a nurseryman propagates cannabis plants with the intention of supplying those very plants to another who will thereafter cultivate them to maturity and harvest them.
13. There appear to be no decisions directly in point, but Mr Shepherd prays in aid an observation in R v Auton & others [2011] EWCA Crim 76, a case about sentencing for production of cannabis in smaller scale operations such as that encountered in this case. One of the matters considered was the use to which the product of cultivation was to be put. Hughes LJ, giving the judgment of the court, observed at paragraph 9:

i. "The proper inference as to what the cultivation entailed and what would be likely to happen to the product depends on the facts of each case. In most cases, and not only where the plants have not as yet been harvested, it will not be possible to frame a count of possession of identified material with intent to supply."

14. He went on to say that the issue must be dealt with by the judge and stressed the need for care in relation to assertions advanced by way of basis of plea, as regards which a Newton hearing could be held in appropriate cases.
15. Thus the court in Auton contemplated that in most cases of production the intended use of the product of cultivation is a matter to be taken into account in sentencing for the offence of production and that a separate charge of possession with intention to supply will not lie.
16. Mr Shepherd has added a substantial number of refinements and illustrations to his submissions, but those illustrations and the other ways in which he puts the case do not really add to the basic submission that we have already outlined.
17. For the Crown, Mr Skyner submits that there was clearly a case to answer here. The issue for the jury was the appellant's intention once the cannabis crop matured and was harvested. If the jury concluded that the appellant's intention was to supply all or part of the crop for others to use, they were entitled to convict. The fact that the appellant was in possession of immature plants which had not yet come to fruition did not mean that he had no case to answer. By his own admission, he intended to care for the plants until maturity, he intended to harvest the crop and he intended to use the crop once harvested. The question whether he intended to supply to others was properly before the jury. The issue of intent must be regarded as a continuous one.
18. Mr Skyner further submits that it would be a perverse interpretation of the statute to hold that a defendant cannot be convicted of possession with intent to supply unless and until the crop has reached maturity and is suitable for harvesting. The controlled drug in question is present whether there is a crop capable of being harvested or not. The timing of the harvest maximises the saleable amount of the controlled drug but does not determine when the controlled drug comes into existence. The controlled drug is cannabis, defined by section 37 in the way that we have described. The items seized in the appellant's home were cannabis plants, albeit immature, and they fell squarely within the statutory definition. The appellant was therefore in possession of a controlled drug and there was evidence on which the jury were entitled to find that he had the intention to supply that drug.
19. Our conclusions on those rival submissions are as follows. There is no doubt that the appellant was in possession of cannabis as defined in the statute. That aspect of Mr Skyner's submissions is plainly correct. But we agree with the submission for the appellant that to come within section 5(3) of the 1971 Act the intention to supply must be an intention to supply the thing of which the defendant is in possession. There was no suggestion in this case that the appellant intended to supply the immature plants of which he was in possession at the material time. As the full court said in granting leave, the useable part of each plant would have been the flowering heads, but since these plants were in their infancy there were as yet no flowering heads. The case against the appellant was that he intended to grow the plants to maturity and then to harvest a crop from them and then to supply the harvested crop, or some of it, to others. Thus the intended supply was a supply of the harvested product of the process of cultivation, not a supply of the plants as they existed and were in his possession at the time to which the charge related.
20. It follows, in our judgment, that it could not be said on the facts of this case that the appellant was in possession of cannabis with intent to supply within the meaning of section 5(3).
21. We reject the submission that such an approach to the statute is unreasonable or one that should give cause for concern. The core offence in this case was the production of cannabis. The seriousness of that offence depended, inter alia, on whether the cannabis was being grown for the appellant's own use or for supply to others. That question was capable of being resolved within the sentencing process for the offence of production, if necessary by a Newton hearing. It was unnecessary to add a count of possession with intent to supply in order to determine the purpose for which the cannabis was being produced or therefore the seriousness of the offence of production. That, as it seems to us, accords with the way the court looked at the matter in Auton.
22. This issue was ventilated only in abbreviated form before the trial judge and we understand why in the circumstances he took the robust view he did in rejecting the submission of no case to answer. In the light of the fuller consideration that the issue has raised in this court, however, we take the view that the evidence led by the prosecution did not disclose a case for the appellant to answer on the count of possession with intent to supply.
23. That makes it unnecessary for us to consider in any detail the further grounds of appeal against conviction. In any event, ground 3 raises the same point of substance as ground 1, though directed towards the terms of the judge's summing-up on the issue of intention to supply. Ground 2 advances an argument that the judge's summing-up was not fairly balanced, and in particular that the judge's comments were unduly favourable to the prosecution. One of the points raised has given rise to a dispute of fact between the advocates as to whether it was agreed at trial that some of the small plastic bags found at the appellant's home had been used and whether the jury were informed of that fact. We have not heard oral submissions on that point or on the other points raised under ground 2, but should make clear that on the basis of the full written submissions we have considered we see no cause for concern about the balance of the summing-up, even on the assumption that what Mr Shepherd says about the condition of the plastic bags is correct.
24. So we come back to ground 1, and for the reasons we have given in relation to it we allow the appeal against conviction on count 2 and we quash that conviction.
25. There remains in formal terms an appeal against sentence, limited now to the sentence on count 1. Mr Shepherd, however, has made clear to us today that he does not think that he can realistically argue that the sentence of two years' imprisonment on count 1 was manifestly excessive. We endorse that concession. We are entirely satisfied, having considered the guidance given in the case of Auton and the facts of this particular case, that the sentence of two years on count 1 was an appropriate sentence and that there is no basis for interfering with it. Accordingly, the appeal against sentence is dismissed.