QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE HOLGATE
| THE QUEEN ON THE APPLICATION OF THE UNITED STATES OF AMERICA
|- and -
Mr Blaxland QC and Mr Cooper (instructed by Saunders) for the Respondent
Hearing date: 15 March 2018
Crown Copyright ©
MR. JUSTICE LEGGATT:
"The conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment if it occurred in that part of the United Kingdom."
"... a person's liberty is not to be restricted as a consequence of offences not recognised as criminal by the requested state..."
The decision of the House of Lords in that case also establishes that, in applying the test of dual criminality set out in s.137 of the Act, it is necessary to look at the conduct of which the person is accused in the foreign state and to identify the essence of the conduct alleged which, if proved, would give rise to a criminal offence ignoring for that purpose "mere narrative background" and "adventitious circumstances connected with the conduct of the accused" and focusing on the "substance of the criminality charged" against the person: see paras 91, 97 and 99 of the judgment.
"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."
"The government's evidence will establish that Nirvana ran a marijuana seed distribution business based out of London."
He goes on to say:
"The evidence will show that Nirvana was involved in every step of the marijuana seed sale process from dealing with US marijuana seed growers, to auctioning the seeds online, to distributing the seeds to US customers and to ensuring the marijuana seed growers receive the requisite payment.
This will be shown at trial by the testimony of numerous cooperating witnesses who manufactured marijuana seeds in Maine and shipped the seeds to London to be sold on Nirvana's website."
"The government's evidence will establish that Nirvana worked with others to send marijuana seeds to customers worldwide. Many of these customers were in the United States."
"The government's evidence will establish that Nirvana worked with marijuana growers in the United States to have marijuana seeds produced in the United States and then shipped to London to be sold on Nirvana's website. This will be shown at trial by the testimony of three cooperating witnesses who manufactured marijuana seeds in Maine and then personally shipped the seeds to London to be sold on Nirvana's website."
"making breeders [that is to say his suppliers who grow marijuana plants] mad because we can't pay them..."
The other message on which Mr Hall particularly relied is one said to have been sent on 26 January 2011 by the cooperating witness to Mr Nirvana in which the witness said:
"I am looking VERY forward for you guys to shoot me that current stock inventory you told me you'd be doing, and Gypsy, the breakdown of what I'm currently owed, cash wise, after almost a year...I have a big harvest in 10 days and then a GIANT Kush Projects seed run is in Proper Order and ready to go! More sour d seeds soon too who'd know that $80,000 retail in SD seeds would be gone in <3 hours. Underestimated THAT market DOH!"
"A person commits an offence if
(a) he does an act capable of encouraging or assisting the commission of an offence; and
(b) he intends to encourage or assist its commission."
It is submitted that in this case the acts alleged by the United States amount to acts on the part of Mr Nirvana capable of encouraging or assisting in the commission of what in the UK would be an offence of cultivating cannabis plants and demonstrate the necessary intention to encourage or assist in the commission of such an offence.
MR JUSTICE HOLGATE: