Scottish High Court of Justiciary Decisons

At advising on 11th January 1980, the opinion of the Court was delivered by the Lord Justice-Clerk.

LORD JUSTICE-CLERK (Wheatley).—The respondent was charged with a contravention of the Misuse of Drugs Act 1971, section 5 (1) and (2), in that on 19th March 1979 in the house occupied by him he had in his possession a controlled drug, namely cannabis resin. The relevant facts admitted or proved were as follows. Two police officers armed with a search warrant were admitted into the house where the respondent lived. They found the respondent in a bedroom alone and undressed, lying in the one bed which the room contained. The police officers read over the warrant to the respondent and explained that the purpose of their visit was to search for controlled drugs. The respondent then stated that the contents of the room belonged to him. The police officers discovered on top of a sideboard a tin which contained nothing but a small visible quantity of resinous material. One of the police officers then administered a common law caution stating that she suspected that the resinous material was a controlled drug to which the respondent replied "So what?" In a pocket of a pair of jeans lying beside the bed the police officers found a small plastic bag which contained nothing but a small quantity of a resinous substance like cannabis resin. In answer to a further caution regarding the contents of the plastic bag the respondent made no reply. A report by two analysts, which was the subject of a joint minute of admissions, disclosed that the resinous material found in the tin was cannabis resin and weighed 10 milligrammes, and that the resinous material found in the plastic bag was cannabis resin and weighed not less than 1 milligramme. In each case the resinous material was examined both chemically and microscopically. It was certified that cannabis resin was a controlled drug.

When the case was in the court below the solicitor for the respondent made three submissions to the Sheriff. [His Lordship referred to two submissions which are not the subject of this report.] The third submission was that there was an onus on the Crown to prove that the quantity of cannabis resin found in the possession of the respondent was "usable" and this the Crown had failed to do. In support of this, reference was made to the decision of the Court of Appeal in England in the case of R. v. Carver [1978] Q.B. 472. The Sheriff, while acknowledging that this decision was not binding on him, decided to follow it. In the result he held that it had not been established that the amount of the controlled drug discovered was "usable" and found the respondent not guilty.

This appeal by way of stated case has been taken by the Crown on the question posed by the Sheriff:

"In the circumstances was I entitled to acquit the respondent?"

The learned Advocate-Depute propounded a simple and straightforward argument. Section 5 (1) of the Act provides that it shall not be lawful for a person to have a controlled drug in his possession. Section 2 and Schedule 2 of the Act define controlled drugs for the purposes of the Act. Cannabis resin is included in Part II of Schedule 2. Accordingly if the Crown proves that a person has without authority in his possession a quantity of a substance which can be identified as cannabis resin, then, subject to exclusions which do not apply here, that person is guilty of a contravention of section 5 (1) and (2). The charge simply echoed the words of that section. It was thus a relevant charge and no objection had been taken to its relevancy. The evidence in the case satisfied the requirements of section 5(1). While accepting that there must be an "amount" of the controlled drug found in the possession of an accused, that requirement had been satisfied in the instant case, since the material found was visible, measurable and weighable able and had been identified as cannabis resin—a controlled drug. Accordingly the test applied in R. v. Carver, namely "if the evidence be that the quantity is so minute that it is not usable in any manner which the Misuse of Drugs Act 1971 was intended to prohibit, then a conviction for being in possession of the minute quantity of the drug would not be justified," should not be applied. Accordingly there should have been a conviction in this case.

The reply by counsel for the respondent to this point was equally simple and straightforward. He simply founded on the decision in R. v. Carver and the test laid down therein. He submitted that, for the reasons set forth in the opinion of the Court in that case, the test laid down therein should be adopted and applied in Scotland. The Sheriff had done so, and he was entitled on the evidence to hold that it had not been proved that the quantity of cannabis resin found in the respondent's possession was "usable." The Sheriff was accordingly entitled to acquit.

The question of the test to be applied in such circumstances has apparently never been the subject of a considered opinion by the High Court of Justiciary in Scotland. While we pay proper regard to the decision of the Court of Appeal in the case of R. v. Carver and would not lightly differ from it, we consider that it is incumbent upon us to examine the question afresh to determine whether we are in accord with that decision. We start from the point of view that the answer should be found in the terms of the Act itself. We agree with the submission of the Advocate-Depute that ex faciethe wording of section 5 (1) is clear and unqualified. It is unlawful for a person without legal authority to be in possession of a controlled drug. If it is established that an accused person was without legal authority in possession of material and that the material was a controlled drug then a conviction for a contravention of section 5(1) should follow. In the instant case the Sheriff has held that the respondent was in the possession of resinous material. It has also been found that the resinous material was cannabis resin, a controlled drug. The identification of the material as cannabis resin was established as a result of microscopic and chemical tests, and the amount thereof which was visible was capable of being measured and weighed. The charge against the respondent merely echoed the words of section 5 (1) and simply libelled "being in possession of a controlled drug, namely cannabis resin." No plea to the relevancy of that charge was taken. Had it not been for the decision in R. v. Carver there would have been no doubt that a conviction would have been inevitable. Does the decision in that case with the reason underlying it convince us that an opposite result was justifiable?

The decision in R. v. Carver seems to entail the importation into section 5 (1) of qualification to the term "controlled drug," namely "which is capable of being used." If that be the case, it would add an additional onus on the prosecution to prove that fact. If Parliament had intended that such a qualification should be added it would have been simple to give express effect to it. The plain unqualified words of the subsection simply refer to a controlled drug and ex facie anything which is capable of being identified as a controlled drug is struck at by the subsection. It is the possession of the controlled drug which is made punishable by section 5 (1) and (2), not its use or potential use. There is no ambiguity in the words used and no absurdity is produced. If it is argued that anything short of a "usable" amount of the controlled drug produces an absurdity in section 5 (1), it is an argument which we cannot accept. The plain wording of that subsection makes "identification in an acceptable manner" and not "capable of being used" the test, and there does not appear to us to be any absurdity in that.

The test laid down in R. v. Carver as noted supra is that "the quantity is so minute that it is not usable in any manner which the Misuse of Drugs Act 1971 was intended to prohibit." With all due respect, this seems to us to replace without justification "identifiable" by "usable." It seems to read some significance into the short title of the Act. If that be so, then in our opinion it is not justifiable. The long title of the Act is "An Act to make new provision with respect to dangerous or otherwise harmful drugs and related matters, and for purposes connected therewith." These are general terms. Different subject matters are dealt with under different headings throughout the Act. For instance section 1 under reference to Schedule 1 and section 10 deal with the misuse of drugs. Section 5 is in a group of sections headed "Restrictions relating to controlled drugs, etc." There is nothing in this group of sections relating to the use or misuse of drugs from which an inference of "usable" in relation to section 5 (1) can be drawn.

We now turn to examine the previous English cases on the subject. The first case is that of R. v. Worsell [1970] 1 W.L.R. 111 (Note) in which Salmon L.J. (as he then was) gave the opinion of the Court. That case is of importance in that it would seem that something said in the opinion became the genesis of the view that "usable" was an element in the test. The facts in that case were significant. All that could be ascertained under the microscope was that the tube contained a very few droplets of the drug diamorphine (heroin) which were impossible to measure and impossible to pour out. The Court of Appeal held that these facts made it impossible to hold that there was any evidence that the tube contained a drug. Having pronounced on this Salmon L.J. went on to say:

"Whatever it contained, obviously it could not be used and could not be sold. There was nothing in reality in the tube."

It has to be noted that the former statement was obiter. The learned Judge had been dealing with the point that possession of a dangerous drug without authority was an absolute offence, and that the reason for making it so was that if a person was in possession of such a drug there was the risk of him taking it or peddling it. The ratio decidendi in the case was that in reality there was nothing in the tube, and the question of use never arose.

In the case of R. v. Graham [1970] 1 W.L.R. 113 a conviction for possessing cannabis where the quantities were small but were scientifically capable of being weighed and measured was sustained. The question of "usable" does not appear to have been raised.

The quantity of cannabis resin in Bocking v. Roberts [1974] Q.B. 307 was too small to be weighed but was determined by chemical analysis to be at least 20 microgrammes, since the rest used would not give a positive indication for quantities below that amount. The Court of Appeal by a majority sustained the conviction. In the course of his judgment sustaining the conviction Lord Widgery L.C.J. said:

"In my judgment it is quite clear that when dealing with a charge of possessing a dangerous drug without authority, the ordinary maxim of de minimis is not to be applied. In other words, if it is clearly established that the accused had a dangerous drug in his possession without authority, it is no answer for him to say that the quantity of the drug which he possessed was so small that the law should take no account of it. The doctrine of de minimis as such in my judgment does not apply, but on the other hand, since the offence is possessing a dangerous drug, it is quite clear that the prosecution have to prove that there was some of the drug in the possession of the defendant to justify the charge, and the distinction which has to be drawn in cases of this kind is whether the quantity of the drug was enough to justify the conclusion that the defendant was possessed of a quantity of the drug or whether, on the other hand, the traces were so slight that they really indicated no more than that at some previous time he had been in possession of the drug. It seems to me that that is the distinction that has to be drawn, although its application to individual cases is by no means easy."

It was on the application of these principles and not on the test of "usable" that Lord Widgery sustained the conviction despite the small but identifiable amount of cannabis resin involved.

It was against the background of these authorities that the Court in R. v. Carver expressed itself in the words of Michael Davies J., quoted supra. We agree with the Court of Appeal that in this context it is inappropriate to rely on the ordinary maxim of de minimis, and that if the quantity of the drug found is so minute that in the light of common sense it amounts to nothing, it should be treated as such. That latter point in our view is associated with the requirement that the controlled drug must be capable of proper identification as such before a conviction can be recorded. In all the other English cases the decisions were based on these two foregoing considerations and not on the "usable" test. With respect, we cannot agree that the "usable" as distinct from the "identifiable" test can legitimately be read into the requirements of section 5 (1). It was first introduced by a side-wind in R. v. Worsell and adopted for the first time as a ground of decision in R. v. Carver . On our reading and interpretation of section 5 (1) this innovation is not justified.

Each case will require to be decided on its own facts. In the instant case, the factors which led to the undisputable and undisputed identification of the material found in the possession of the respondent as cannabis resin clearly established a contravention of the plain terms of section 5 (1) and a conviction should have resulted. On the view which we have taken, the fact that the Crown failed to prove that the quantity of cannabis resin found in the respondent's possession could be used for a purpose struck at by the Act is an irrelevant consideration.

There is one further point to be dealt with. Counsel for the respondent submitted that what was found in the possession of his client was consistent with him having previously been in the possession of a controlled drug and did not establish that he was then presently in possession of a controlled drug. This submission was based on the passage in the opinion of Lord Widgery in Bocking v. Roberts, cited supra, where his Lordship posed the question whether the quantity of the drug was enough to draw the conclusion that the defendant was possessed of a quantity of the drug or whether, on the other hand, the traces were so slight that they really indicated no more than that at some previous time he had been in possession of the drug. There is no indication in the stated case that this matter was ever argued before the Sheriff, who decided the case on R. v. Carver and the "usable" test. Where identification of the matter found as being a controlled drug is satisfactorily established, then on our view of the law this point does not arise, since at the point of time of the discovery of the material the person was in possession of a controlled drug. In the instant case that was clearly established by the various tests.

We shall accordingly sustain the appeal, answer the question of law in the negative and remit the case back to the Sheriff with a direction to convict.