United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/18/247

Regina

V.

Maginnis (Respondent)
(On Appeal from the Court of Appeal (Criminal Division))

JUDGMENT

Die Jovis 5° Martii 1987

Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Maginnis, That the Committee
had heard Counsel on Wednesday the 21st and Thursday the 22nd
days of January last, upon the Petition and Appeal of the
Commissioner of Police for the Metropolis, on behalf of Her
Majesty, praying that the matter of the Order set forth in
the Schedule thereto, namely an Order of Her Majesty's Court
of Appeal (Criminal Division) of the 10th of March 1986, might
be reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Order might be reversed, varied
or altered or that the Petitioner might have such other relief
in the premises as to Her Majesty the Queen in Her Court of
Parliament might seem meet? and Counsel having been heard on
behalf of Patrick Terrance Maginnis, the respondent to the
said Appeal; and due consideration had this day of what was
offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty's Court of
Appeal (Criminal Division) of the 10th day of March 1986
complained of in the said Appeal be, and the same is hereby,
Reversed, save as to the grant of Legal Aid, and that the
conviction on Count I of the indictment of Inner London Crown
Court of the 20th day of June 1985 be, and the same is hereby,
Restored: That the Certified question be amended so as to read
"Whether a person in unlawful possession of a controlled drug
which has been deposited with him for safe keeping has the
intent to supply that drug to another if his intention is to
return the drug to the person who deposited it with him";
That, as amended, the Certified Question be answered in the
affirmative; And it is further Ordered, That the Cause be,
and the same is hereby, remitted back to the Court of Appeal
(Criminal Division) to do therein as shall be just and
consistent with this Judgment.

Cler: Parliamentor:

Judgment: 5.3.87

HOUSE OF LORDS

REGINA
(APPELLANT)

V.

MAGINNIS
(RESPONDENT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL

DIVISION))

Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Mackay of Clashfern
Lord Oliver of Aylmerton
Lord Goff of Chieveley

LORD KEITH OF KINKEL

My Lords,

The respondent ("the defendant") was charged upon
indictment with three counts alleging contraventions of the Misuse
of Drugs Act 1971. The first count charged him with possessing a
controlled drug with intent to supply it unlawfully to another,
contrary to section 5(3) of the Act, and the second count, which
was alternative to the first and related to the same package of
drugs, charged him with unlawful possession of it contrary to
section 5(2) of the Act. The third count charged unlawful
possession of a different smaller quantity of drugs. The present
appeal is not concerned with that count and it need not be further
mentioned. At the trial, before Judge Pullinger and a jury at
Inner London Crown Court, the defendant pleaded not guilty to the
first count, but guilty to the second. The plea of guilty to the
second count was not accepted by the prosecution, and the trial
proceeded on the first count. Evidence was led by the prosecution
to the effect that a package containing 227 grammes of cannabis
resin, a controlled drug, having a street value of about £500, was
found under the driver's seat of the defendant's car after he had
been arrested in connection with an alleged assault. The
defendant stated to police officers that he did not deal in drugs
and that the package had been left in the car on the previous
evening by a friend. He declined to name the friend and said "I
expected him to come round and pick it up." At the close of the
prosecution case counsel for the defendant asked the judge to
direct the jury that if they accepted that his intention was merely
to return the package of drugs to the person who had left it in
the car that would not have been an intent to supply it to another
in contravention of section 4(1)(b) of the Act of 1971, and that he
should therefore be acquitted on count one. The judge ruled that



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the intention to return the package to the person who had left it
in the car did constitute the requisite intent for conviction, and
the defendant thereupon changed his plea on the first count to one
of guilty. He was sentenced to 12 months' imprisonment on that
count.

The defendant appealed, and on 20 December 1985 the
Court of Appeal (Criminal Division) (Parker L.J., French and Mann
JJ.) allowed the appeal and quashed the conviction. On the
application of counsel for the prosecution, they certified that a
point of law of general public importance was involved in their
decision, and later granted leave to appeal to this House. The
certified question is as follows:

1 Whether a person intends to supply a controlled drug

if:- (a) he intends to transfer physical control of the
drug to another; or (b) he intends to transfer physical
control of the drug to another for the benefit of the
other. 2 If (b) above is correct, whether such
benefit is constituted by the return of physical
control of the drug to a bailor by a bailee.

Section 5(3) of the Act of 1971 provides:

"Subject to section 28 of this Act and to subsection (4)
below, 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."

and section 4(l):

"Subject to any regulations made under section 7 of this Act
for the time being in force, it shall not be lawful for a
person - (a) to produce a controlled drug; or (b) to supply or
offer to supply a controlled drug to another.

No question arises as to the possible application of sections 28 or
5(4) or of any regulations made under section 7.

The issue in the appeal is concerned with the meaning
properly to be attributed to the word "supply" in section 4(1) and
in section 5(3). This is to be ascertained in the usual way by
reference to the ordinary natural meaning of the word together
with any assistance which may be afforded by the context.
Counsel for the Crown sought also to derive some assistance from
the Misuse of Drugs Regulations 1973, made under the powers to
that effect contained in the Act of 1971, which came into force
at the same time as the principal provisions of the Act. This is
not, however, one of those exceptional cases where a guide to the
construction of a statute may be obtained from regulations made
under it, and the regulations in question are not, in my opinion,
admissible for the purpose sought to be made of them. The same
applies, a fortiori, to the similarly entitled regulations of 1985, to
which reference was also made.

The word "supply," in its ordinary natural meaning, conveys
the idea of furnishing or providing to another something which is
wanted or required in order to meet the wants or requirements of



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that other, it connotes more than the mere transfer of physical
control of some chattel or object from one person to another, No
one would ordinarily say that to hand over something to a mere
custodier was to supply him with it. The additional concept is
that of enabling the recipient to apply the thing handed over to
purposes for which he desires or has a duty to apply it. In my
opinion it is not a necessary element in the conception of supply
that the provision should be made out of the personal resources of
the person who does the supplying. Thus if an employee draws
from his employer's store materials or equipment which he requires
for purposes of his work, it involves no straining of language to
say that the storekeeper supplies him with those materials or that
equipment, notwithstanding that they do not form part of the
storekeeper's own resources and that he is merely the custodier of
them. I think the same is true if it is the owner of the business
who is drawing from his own storekeeper tools or materials which
form part of his own resources. The storekeeper can be said to
be supplying him with what he needs. If a trafficker in controlled
drugs sets up a store of these in the custody of a friend whom he
thinks unlikely to attract the suspicions of the police, and later
draws on the store for the purposes of his trade, or for his own
use, the custodier is in my opinion rightly to be regarded as
supplying him with drugs. On the assumed facts of the present
case (they were never tested before the jury), the defendant had
been made custodier of the drugs by his unnamed friend, who,
having regard to the quantity of the drugs, may legitimately be
inferred to have been a trader. If on a later occasion the
defendant had handed the drugs back to his friend, he would have
done so in order to enable the friend to apply the drugs for the
friend's own purposes. He would accordingly, in my opinion, have
supplied the drugs to his friend in contravention of section 4(1)
It follows that in so far as he was in possession of the drugs with
the intention of handing them back to the friend when asked for
by the latter, he was in possession with intent to supply the drugs
to another in contravention of section 4(1) and was thus guilty
under section 5(3).

The reason why the Court of Appeal (Criminal Division)
gave leave to appeal in this case was that they believed that they
perceived a conflict between two earlier decisions of that court.
These two decisions were Reg. v. Delgado [1984] 1 W.L.R. 89 and
Reg. v. Dempsey, The Times, 22 November 1985. In Reg. v.
Delgado the accused had been a passenger in a minicab which was
stopped by police because it was not displaying a tax disc. He
ran away leaving in the car a holdall containing 6.31 kilogrammes
of cannabis. At his trial on a charge of contravening section 5(3)
he gave evidence that two acquaintances had told him that they
had stolen the cannabis and had nowhere to keep it. They asked
him to look after it for a couple of hours and he agreed to do so.
He was on his way to deliver it back to them when he was
arrested. The judge ruled that returning the cannabis to those
who had given it to him would be an act of supplying, and the
accused thereupon pleaded guilty to the charge. Upon his appeal
the Court of Appeal (Criminal Division), consisting of Lord Lane
C.J., Skinner and McCowan JJ., held that the ruling of the trial
judge was correct and dismissed the appeal. Skinner J., delivering
the judgment of the Court of Appeal said, at p. 92:

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"Thus we are driven back to considering the word 'supply' in
its context. The judge himself relied upon the dictionary
definition, which is a fairly wide one. This court has been
referred to the Shorter Oxford English Dictionary, which
gives a large number of definitions of the word 'supply,' but
they have a common feature, viz.: that in the word 'supply'
is inherent the furnishing or providing of something which is
wanted. In the judgment of this court, the word 'supply' in
section 5(3) of the Act of 1971 covers a similarly wide
range of transactions. A feature common to all of those
transactions is a transfer of physical control of a drug from
one person to another. In our judgment questions of the
transfer of ownership or legal possession of those drugs are
irrelevant to the issue whether or not there was intent to
supply. In the present case on his own evidence the
appellant had possession of a substantial quantity of
cannabis. His intention was to transfer control of it to his
two friends at an agreed time and place. In those
circumstances it seems to us that the judge was entirely
right in his ruling, and that therefore the argument put
forward by counsel for the appellant has no foundation."

In Reg. v. Dempsey the first accused, Michael, was a
registered drug addict who had lawfully obtained from a medical
practitioner ampoules of a controlled drug Physeptone. His
account was that, while in the street accompanied by the second
accused, Maureen, he gave her some of the ampoules to look after
while he went into a public lavatory to inject himself from
another ampoule. This was observed by police officers who
arrested both accused. Michael was charged with supply of a
controlled drug to Maureen under section 4(3)(a) of the Act of
1971 and Maureen with possession under 5(2). The trial judge
ruled that assuming Michael's account was true he had no defence
to the charge of supply, and he thereupon changed his plea to
guilty. On his appeal to the Court of Appeal (Criminal Division)
that court, consisting of Lord Lane C.J., Boreham and McCowan
JJ., held that the ruling of the trial judge was incorrect and
quashed the conviction. Lord Lane C.J., giving the judgment of
the court, said:

"Michael Dempsey was charged under section 4(3)(a) of the
Misuse of Drugs Act 1971, which makes it an offence for
any person to supply a controlled drug to another. The
question in his case is whether by handing the ampoules to
Maureen to hold for him temporarily, he can be said to
have supplied the ampoules to her. The word 'supply' is
defined in the Shorter Oxford English Dictionary as follows:
'. . . to fulfil, satisfy (a need or want) by furnishing what is
wanted. To furnish, provide, afford (something needed,
desired or used). . .' Those are the two definitions which
seemed to be relevant to the particular circumstances. It is
an act, so it seems, which is designed to benefit the
recipient. It does not seem to us that it is apt to describe
the deposit of an article with another person for safe
keeping, as was the case here. The example was canvassed
in argument of a person who hands his coat to a cloakroom
attendant for safe keeping during the show in a theatre or
cinema. It could scarcely be said that the person handing
the coat supplies it to the cloakroom attendant. Nor do we

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think it makes any difference that the cloakroom attendant
wishes in one sense to get his coat, thinking that he may
get a tip at the end of the evening. That is not the sort
of wish or need which is envisaged by the definition of the
offence. That sort of transfer is a transfer for the benefit
of the transferor rather than the transferee. In our
judgment therefore the recorder was in error in ruling as he
did. He should have left it to the jury to decide whether
or not this transfer to Maureen of the controlled drug
Physeptone was so that she could use the drug for her own
purposes, for example to hand on to someone else or to use
upon her own body, in which case there would have been a
supply, or may simply have been for safe keeping and for
return to Michael, who was lawfully entitled to the drug, it
having been prescribed for him, in which case there was
not. We have been referred to a number of decisions,
particularly the decisions in Reg. v. Delgado [1984] 1 W.L.R.
89; Reg. v. Harris (Janet) [1968] 1 W.L.R. 769 and Reg. v.
Mills [1963] 1 Q.B. 522. We do not think that those
decisions assist us in the interpretation of the word 'supply.'
If there is any ambiguity in the word, it must be resolved
in favour of the defendant. That is clear from the passage
to which we have been referred in Maxwell on Interpretation
of Statutes. 12th ed. (1969)., p. 239. There is no need for
us to read that. We do not think there is an ambiguity.
But as I say, if there is, the principles set out in Maxwell
applies, namely that the ambiguity must be resolved in
favour of the defendant."

In the present case Mann J., giving the judgment of the
court, said of these two decisions [1986] Q.B. 618, 623-624:

"We find it impossible to reconcile the meaning put upon
the word 'supply' in Reg. v. Delgado [1984] 1 W.L.R. 89
with the meaning put upon that word in Reg. v. Dempsey,
The Times, 22 November 1985. The decision in Reg. v.
Delgado is that the word is satisfied if there is a transfer
of physical control of the drug in question. However in
Reg. v. Dempsey there was a transfer of physical control,
yet the conviction was quashed. The cases cannot be
composed on the basis that Reg. v. Delgado concerned
section 5(3) of the Act of 1971, whereas Reg. v. Dempsey
concerned section 4(3)(a). Each offence is drawn in terms
of supply in contravention of section 4(1). We are faced
with two decisions of this court which conflict. In that
circumstance we are bound to decide which of them to
follow: see Young v. Bristol Aeroplane Co. Ltd. [1944] K.B.
718, 729 and Reg. v. Gould [1968] 2 QB 65. In our
judgment, the meaning put upon the word 'supply' in Reg. v.
Dempsey is to be preferred. With respect to the members
of the court in Reg. v. Delgado who thought otherwise, we
cannot think that the word 'supply' as a matter of ordinary
language is apt to mean merely transfer of physical control.
We agree with the view of the court in Reg. v. Dempsey.
that for there to be a supply there must be a transfer of
physical control which is for the benefit of the recipient of
the article. Mr. Forrester, for the Crown, accepted that
this was the correct formulation but argued that the
transferee obtains a benefit when he receives back an



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article which he has placed in the custody of another. The
only discernible benefit is the resumption of actual
possession. We do not accept that this is sufficient to
constitute the return of an article an act of supply. In
ordinary language the cloakroom attendant, the left luggage
officer, the warehouseman and the shoe mender do not
'supply' to their customers the articles which those
customers have left with them. In each case the lawyer
would perceive the translation of the right to possession into
actual possession, but even so the user of ordinary language
does not perceive a 'supply.' To hold that A, in possession
of a controlled drug, does not supply B when he hands the
substance to B for safe keeping whilst he makes a telephone
call from a telephone box, and is therefore not guilty of
possession with intent to supply when he decides to hand the
substance to B, but that when B returns the substance to A
he supplies A and is thus guilty of possession with intent to
supply from the moment when he accepts the substance into
his custody whilst A telephones, is in our judgment
unacceptable. It would be to attribute to Parliament an
intention which we can only regard as bordering on the
farcical. If B, when found holding the drug, were to be
asked: 'Do you intend to supply it to anyone?', he would
surely reply: 'No, it belongs to A. I'm holding it for him
while he telephones in that call-box over there.' We cannot
give the word 'supply' a meaning that would render this
appellant guilty of possession with intent to supply.
Accordingly, there was a wrong direction on a question of
law, and for that reason we allowed the appeal against
conviction on count 1."

In my opinion, there is a clear distinction between the
decision in Reg. v. Delgado and that in Reg. v. Dempsey. In Reg.
v. Delgado a custodier was found to have the necessary intent to
supply because his intention was to hand back controlled drugs to
the persons who had deposited them with him so as to enable
those persons to apply the drugs to their own purposes, and thus
put them back into circulation. In Reg. v. Dempsey there was a
mere placing in temporary custody, and no intention of enabling
the custodier to use the drugs for her own purposes. Maureen did
not want the drugs for any purpose of her own. One who deposits
controlled drugs of which he is in unlawful possession with a
temporary custodier has no legal right to require the drugs to be
handed back to him. Indeed it is the duty of the custodier not to
hand them back but to destroy them or to deliver them to a
police officer so that they may be destroyed. The custodier in
choosing to return the drugs to the depositor does something which
he is not only not obliged to do, but which he has a duty not to
do. Any analogy with bailment is false in a situation where the
depositor has no right to ownership which the law would recognise
and certainly none to immediate possession.

It is worth noting that, in a decision which was not cited in
the Court of Appeal, the High Court of Justiciary in Scotland
accepted a construction of section 5(3) which is in line with Reg.
v. Delgado. of which it expressed approval. That decision is
Donnelly v. H.M. Advocate. 1985 S.L.T. 243. The appellant had
claimed that a quantity of controlled drugs, of which she had been
found in possession, had been placed in her custody by a man



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called Colin Stewart. In the course of the opinion of the court it
was said, at p. 244:

"if the appellant intended to part with all or some of the
drugs in her possession to Colin Stewart, even for his own
use, she intended to supply Colin Stewart, and it matters
not whether his intention was to use them himself or to
supply others."

It is, I think, a misinterpretation of the grounds of judgment in
Reg. v. Delgado to regard them as holding that a mere transfer of
physical control of a drug from one person to another may
constitute supply within the meaning of the subsection. If,
however, this was the intention of the judgment, it is not, in my
view, entirely correct. For the reasons I have earlier expressed, it
is necessary that the transfer be for the purposes of the
transferee, and the decision in Donnelly v. H.M. Advocate accords
with that view. The desirability of these statutory provisions,
applicable as they are both in England and in Scotland, being
interpreted alike in both jurisdictions needs no emphasis.

My Lords, for these reasons I would allow the appeal. The
certified question is not in all respects apt to raise the true issue
in the case. I would amend it so as to read:




"Whether a person in unlawful possession of a controlled
drug which has been deposited with him for safe keeping has
the intent to supply that drug to another if his intention is
to return the drug to the person who deposited it with him."

and answer the question as so amended in the affirmative.

LORD BRANDON OF OAKBROOK

My Lords,

I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Keith of Kinkel. I
agree with it, and for the reasons which he gives I would allow
the appeal, and answer the certified question, amended in the
manner which he proposes, in the affirmative.

LORD MACKAY OF CLASHFERN

My Lords,

My Lords, I have had the advantage of reading the speech
prepared by my noble and learned friend, Lord Keith of Kinkel. I
agree that the certified question should be amended in the manner
indicated by my noble and learned friend and that the appeal
should be allowed and the amended question answered in the
affirmative for the reasons which he has given.

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LORD OLIVER OF AYLMERTON

My Lords,

My Lords, I have had the advantage of reading the speech
prepared by my noble and learned friend, Lord Keith of Kinkel. I
agree that the certified question should be amended in the manner
indicated by my noble and learned friend and that the appeal
should be allowed and the amended question answered in the
affirmative for the reasons which he has given.

LORD GOFF OF CHIEVELEY

My Lords

We are concerned in this case with the meaning of the word
"supply" as used in the expression "with intent to supply it to
another" in section 5(3) of the Misuse of Drugs Act 1971; though,
since there is no reason to suppose that the word "supply" in
section 5(3) is intended to have any different meaning from the
same word in section 4(l)(b) of the Act, which makes it unlawful
"to supply or offer to supply a controlled drug to another," we are
really concerned with the meaning of the word in both subsections.

The primary rule of construction is that we should attribute
to words their natural and ordinary meaning, unless the context
otherwise requires. So what is the natural and ordinary meaning
of the word "supply"? I hesitate to attempt a definition,
especially as the word under consideration is not always very
precisely used; but to me the word, as used in relation to goods,
connotes the idea of making goods available to another from
resources other than those of the recipient. This approach is, I
consider, consistent with some of the dictionary meanings in the
Shorter Oxford English Dictionary, for example, "the act of making
up a deficiency, or of fulfilling a want or demand," and "the act
of supplying something needed." It is also, I believe, consistent
with the ordinary use of the word in everyday speech. So to
deliver goods to a buyer or his agent under a contract of sale
would obviously be to supply goods to that person, and indeed
would perhaps provide the typical example of a supply of goods;
though I can see no reason why the delivery of goods by way of
gift should not also amount to a supply of goods.

But we are concerned in the present case with a deposit of
goods; and I do not feel able to say that either the delivery of
goods by a depositor to a depositee, or the redelivery of goods by
a depositee to a depositor, can sensibly be described as an act of
supplying goods to another. I certainly cannot conceive of myself
using the word "supply" in this context in ordinary speech. I ask
myself: why should I not do so? I answer: I would not describe
the delivery by the depositor to the depositee as a supply of
goods, because the goods are not being made available to him but

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are rather being entrusted to him; and I would not describe the
redelivery by the depositee to the depositor as a supply of goods,
because the goods are simply being returned to him, rather than
being made available to him from resources other than his own.

The context does not, as I see it, require any departure
from the natural and ordinary meaning of the word. Moreover,
the interpretation which I would give to the word, which I derive
from my understanding of the use of the word "supply" in ordinary
speech, is consistent with the conclusion of the Court of Appeal in
the present case. I must confess that, in a case where I am
looking for the ordinary meaning of an ordinary word like "supply,"
I am much influenced by the fact that the three members of the
Court of Appeal, having searched like myself for the ordinary
meaning of the word, and having considered the earlier authorities,
have reached the same conclusion as I myself have reached. In
delivering the judgment of the court, Mann J. said [1986] Q. B. 618,

"In ordinary language the cloakroom attendant, the left
luggage officer, the warehouseman and the shoe mender do
not 'supply' to their customers the articles which those
customers have left with them."

I entirely agree. I cannot imagine ordinary people using the word
"supply" to describe any of those four transactions. They would
rather talk about redelivering or returning the goods to the
customer or, more colloquially, handing them back to him. It
follows that, in respectful agreement with my noble and learned
friend, Lord Keith of Kinkel, I cannot accept the submission of the
Crown that a mere transfer of possession of itself necessarily
constitutes a supply. But I find myself, with all respect, unable to
agree with my noble and learned friend that it is a sufficient
qualification to characterise a transfer of possession as a supply
that it should be made in order to meet the wants or requirements
of the recipient, such expression being understood to include
circumstances where the want or requirement of the recipient is
simply to get his own goods back again. Moreover, in the case
where a man deposits his own goods with a storeman, and draws
on those goods from time to time, I do not think that it would be
an appropriate use of the word "supply" to describe the storeman
as supplying the depositor when he releases part of the goods to
him. Even if the word "supply" were to be used in such a
context, I would regard it as a loose or aberrant use of the word
which should not be regarded as providing any foundation for the
proposition that the word can be appropriately used, or is normally
used, in every case where a depositee returns the goods to a
depositor.

There remains, however, a problem. We are concerned in
the present case with controlled drugs; and, in cases which come
before the courts, an agreement by a depositee of controlled drugs
to return them to the depositor will ordinarily be unlawful. In
such circumstances the depositor will have no enforceable right
that the drugs should be restored to him. Can it therefore be
said that, in those circumstances, since the depositee is not bound
to return the drugs to the depositor, he can, if he does so, be
described as supplying them to the depositor? I do not think so.
The point is for me too legalistic. Let us forget about controlled



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drugs for the moment; and let us suppose that, owing to some
technical rule of law, a contract of deposit of goods is
unenforceable. But the depositee is an honourable man, and
returns the goods to the man who deposited them with him.
Nobody would, I think, describe him in ordinary language as
supplying the goods to the depositor, simply because he was not
legally bound to return them. The fact is that the goods came
from the depositor's own resources; and all the depositee was
doing was returning them to him. True it is that, in the case of
controlled drugs with which we are concerned, not only has the
depositor no enforceable right to recover them from the depositee,
but the depositee has a duty to hand them over to the authorities.
But I cannot, for my part, see that this means that, if the
depositee does not comply with his duty and instead hands the
drugs back to the depositor, he is "supplying" them to the
depositor. I cannot imagine myself so describing his act; I would
say that the depositor had, in breach of his duty, returned the
controlled drugs to the depositor. To use the word "supply" in
such a case would not, in my opinion, accord with the natural and
ordinary meaning of that word.

I wish to add that the conclusion which I have reached as
to the meaning of the word "supply" in section 5(3) of the Act of
1971 seems to me to accord with the purpose of that subsection.
The subsection creates an offence which is evidently directed at
those who are "pushing" controlled drugs. But a person with whom
controlled drugs are deposited is not, in my opinion, necessarily
involved in "pushing" them. He may be so involved; but if so he
can then be charged and convicted as an accessory. But to
impose a meaning on the word "supply" in the subsection which
would have the effect that every depositee of controlled drugs
would be in possession of them with intent to supply them to
another could, in my opinion, result in persons being convicted of
that offence when they should only be convicted of the offence of
having been in unlawful possession of them. It is not to be
forgotten that, even for the latter offence, it is open to the court
to impose, in an appropriate case, a substantial penalty of up to
five years' imprisonment. If, however, contrary to my

understanding, it were to be thought that any depositee of
controlled drugs should be held to be in possession of them with
intent to supply another when his intention was simply to return
them to the depositor, then the appropriate course, in my opinion,
would be for Parliament to enlarge the definition of "supplying" in
section 37 of the Act to include such a case.

In my opinion, therefore, the Court of Appeal reached the
right conclusion for the right reasons. I also find myself to be in
agreement with the conclusion of the Court of Appeal in Reg. v.
Dempsey, The Times, 22 November 1985; but I would, for my part,
hold that Reg. v. Delgado [1984] 1 W.L.R. 89 (and the Scottish
case of Donnelly v. H.M. Advocate, 1985 S.L.T. 243, in which Reg.
v. Delgado was, very understandably, followed) were, with ail
respect, wrongly decided.

For the reasons I have given, I would dismiss the appeal and
answer the question (as amended) in the negative.

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