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Defence application for 'no case to answer' and prosecution's application to amend the indictment
Before : |
R. J. MacRae, Esq., Deputy Bailiff, and Jurats Cornish and Opfermann |
The Attorney General
-v-
Fraser David Julian Mallet
Ms L. Taylor, Crown Advocate.
Advocate J. Corbett for the Defendant.
EX TEMPORE JUDGMENT
THE DEPUTY BAILIFF:
1. A submission of no case to answer has been made to me by the defence in relation to counts 3, 8 and 10 on the indictment.
2. The principle is that I, at this stage, should withdraw those counts from the Jurats if I conclude that the prosecution evidence taken at its highest is such that a panel of Jurats properly directed could not properly convict on it.
3. What connects counts 3, 8 and 10 is that they concern, in relation to counts 3 and 8, offers to supply cannabis, and, in count 10, possession with intent to supply cannabis.
4. It has always been understood certainly in relation to count 10 that that reference is to cannabis resin. There is a clear distinction between cannabis and cannabis resin under Article 1 of the Misuse of Drugs (Jersey) Law 1978 (-the 1978 Law-), but the definition of cannabis in Article 1 excludes cannabis resin and accordingly, although it is a late application, I allow the Crown's application to amend the indictment to refer to cannabis resin at counts 3, 8 and 10.
5. When the Defendant was first interviewed in this case on 26 September 2023, he made it clear that the resin seized from his address on 26 September, the same day as his interview, which appears to be cannabis resin, was in fact, he said, HHC resin. He went on to explain that HHC was hexahydrocannabinol. He said his intention was to smoke it, that it was cheaper than normal cannabis, and so far as he was concerned was a drug that he could lawfully possess. In short, he was saying that it was something that could be purchased legitimately and was not a controlled drug. He went into some detail about it in the course of his interview.
6. The resinous material that was seized consisted of three pieces, one weighing about 40g, one weighing about 7g, and one weighing less than 1g. It appears from the analysis that the chemical composition and appearance of all three pieces of resinous material are indistinguishable from each other.
7. The submission made to me this morning is that I should withdraw these counts from the Jurats on the footing that the proportion of THC, an active ingredient within cannabis, is de minimis, and therefore the material in question should not be treated as a controlled drug, which would lead to count 10 falling away, and that as to counts 3 and 9, they relate to offers to supply so close in time to the arrest of the Defendant, that there must have been offers made in relation to the same resinous material.
8. My attention has been drawn to Bennion, Bailey and Norbury on Statutory Interpretation which refers at section 9.4 to the de minimis principle, which is that the legislature is presumed to intend that an enactment be read in the light of the principle -de minumis non curat lex-, -the law does not concern itself with trifling matters-. This principle applies to statutory construction - described as -the law does not care about very little things or matters too negligible for the law to be concerned with-. Various cases are set out in Bennion, although none of them are drugs cases, and certainly in one case that came before this court not so long ago, the fact that a quantity of cocaine was only at 1% purity did not prevent those defendants being found guilty and receiving lengthy custodial sentences.
9. Before I come on to the evidence we have heard on the point, in addition to the assertion that the portion of THC in this case is de minimis, and therefore the resinous material in question should not be treated as a controlled drug, it was argued that the resinous material in this case was a mixture of THC and HHC, and the fact of a mixture is important. It was argued the material is not like a plate of eggs and bacon which have a clear and continuing separate visual component, but at some point the mixture becomes the sum of its parts and this was neither THC nor HHC but something else, which is not a controlled drug. A further similar analogy is advanced by the defence in this case.
10. This morning we heard from the official analyst to the States of Jersey, Mr Farina, who has worked for that department since 1989. He spoke to the analysis of the material to which I have referred, which was carried out by the then now retired official analyst Nicholas Hubbard, in the laboratory.
11. Mr Farina explained in evidence that cannabis is determined principally by microscopy, namely a visual test under microscope, to identify whether or not the material in question is cannabis or cannabis resin, but this is usually accompanied by a chemical analysis, although it appears from his evidence that such an analysis is not strictly necessary.
12. The visual test under microscope is for the purpose of identifying whether or not the material contains parts of the cannabis plant. As to the chemical analysis, that usually results in the finding of THC, which in its extracted form is in itself a controlled drug, indeed currently a Class A drug, unlike cannabis or cannabis resin which are Class B drugs - although Mr Farina told us that he thought that the extracted THC material might soon become also a Class B drug. Other materials extracted include CBD, a non-psychoactive material, which is not controlled in its own right.
13. In relation to the three pieces of cannabis to which I have referred, Mr Farina said that the microscopy showed that they were cannabis resin and that they also, on appearance without microscopy, resembled cannabis resin.
14. There was then an analysis which yielded THC in trace amounts. But the presence of THC was extremely small compared to the presence of HHC. HHC, like THC, is a psychoactive element, they have similar properties, and HHC is becoming more common in Jersey in terms of being detected in the laboratory as, in the opinion of Mr Farina, in its pure extracted form it circumvents the legislative prohibitions to which THC and indeed cannabis and cannabis resin are subject to, and is viewed as being not controlled in the UK and Jersey but is controlled, he said, in France. Mr Farina said that the ratio between HHC and THC in this case was possibly 100:1 or even greater than that. No other active ingredients were measurable, and so as far as the active ingredient was concerned within this resinous material, it was overwhelmingly HHC which in its extracted form, which Mr Farina thought was probably (although he had not seen it) a dense liquid, it would not be unlawful to possess.
15. Nonetheless, as Mr Farina says, and as the 1978 Law provides, in Article 5, in respect of to the supply of controlled drugs and indeed possession with intent to supply, the definitions of cannabis, in this context cannabis resin, does not extend to a particular requirement in relation to the chemical ingredients. Cannabis resin simply means separated resin, crude or purified, obtained from any plant of the genus cannabis.
16. Accordingly, Mr Farina's view, with which I agree as a matter of law, is that even if an extraction for the purpose of chemical analysis from a piece of cannabis resin proved to be exclusively HHC, then the resin would still be a controlled drug if on a visual analysis - in accordance with the definition in Article 1 of the 1978 Law, the material amounted to cannabis resin.
17. In my judgment the de minimis principle is not engaged or contravened, and these counts will be left to the Jurats, although I will leave open the arguments that have been put forward by defence counsel to the Jurats so that they will need to make determination in relation to this matter before they convict the Defendant on any of these counts.
18. I also reserve the right to amend the terms of this oral judgment once it has been transcribed in due course.
Authorities
Misuse of Drugs (Jersey) Law 1978.
Bennion, Bailey and Norbury on Statutory Interpretation.