Seymour v. The Queen (Bermuda) [2007] UKPC 59 (05 November 2007)

Privy Council Appeal No 30 of 2006

Anthony Eugene Seymour						Appellant
v.

The Queen 	Respondent

FROM

THE COURT OF APPEAL OF
BERMUDA

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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 5th November 2007

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Present at the hearing:-

	Lord Hoffmann
	Lord Phillips of Worth Matravers
	Lord Scott of Foscote
	Lord Brown of Eaton-under-Heywood
	Lord Neuberger of Abbotsbury
	
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[Delivered by Lord Phillips of Worth Matravers]

Introduction
1.	On 14 March 2002 the appellant went to the emergency department of the King Edward Memorial Hospital in Bermuda. His heart was racing and his blood pressure was raised. He told the staff that he had swallowed 19 bags of heroin. During the course of the next two days two operations were performed on the appellant that removed a total of 18 wrapped pellets of heroin from his body. These amounted to 112.8 grams of heroin with a street value in Bermuda of $518,180. The appellant had booked a flight to Miami, Florida, where his wife lived. He went to hospital because he was taken ill as a result of one pellet escaping from its wrapping. It was the prosecution case that he intended to take the drugs to Miami and then sell them. 

2.	The appellant was arrested by the police and, in due course, indicted on two counts. The first was of importing a controlled drug contrary to section 4(3) of the Misuse of Drugs Act 1972 (“MDA”). The second was of possession of a controlled drug with intent to supply contrary to section 6(3) of the same Act. At the start of the trial the appellant made a formal admission pursuant to section 30 of the Evidence Act 1905 that he had been in possession of 112.88 grams of heroin. At the end of the prosecution case he submitted that there was no case to answer on either count. The prosecution did not resist the submission in respect of the first count, for there was no evidence that the appellant had imported the drugs. 

3.	The judge rejected the submission in respect of the second count, and the jury convicted the defendant on this count. He challenged the judge’s ruling before the Court of Appeal of Bermuda, without success. He renews that challenge before their Lordships. 

4.	The appellant was convicted on 19 March 2004 and sentenced to a term of 13 years imprisonment.

The Misuse of Drugs Act
5.	Because of the approach of the Court of Appeal to the construction of section 6(3) of MDA it is helpful to set out the whole of sections 4 to 11 of the Act:

“Importation and exportation of controlled drugs
4 (1) Subject to subsection (2), no person shall-
(a)	import a controlled drug; or
(b)	export a controlled drug.

(2) Subsection (1) does not apply – 
(a)	to the importation or exportation of a controlled drug which is for the time being excepted from paragraph (a) or, as the case may be, paragraph (b) of subsection (1) by regulations under section 12: or
(b)	to the importation or exportation of a controlled drug under and in accordance with the terms of a licence issued by the Minister and in compliance with any conditions attached thereto.
(3) Subject to section 29, it is an offence for a person to import or export a controlled drug in contravention of subsection (1).

Production and supply of controlled drugs
5(1) Subject to any regulations under section 12 for the time being in force, no person shall –
(a)	produce a controlled drug; or 
(b)	supply or offer to supply a controlled drug to another.
(2) Subject to section 29, it is an offence for a person – 
(a)	to produce a controlled drug in contravention of subsection (1); or
(b)	to be concerned in the production of such a drug in contravention of that subsection by another.
(3) Subject to section 29, it is an offence for a person –
(a)	to supply or offer to supply a controlled drug to another in contravention of subsection (1); or
(b)	to be concerned in the supplying of such a drug to another in contravention of that subsection; or
(c)	to be concerned in the making to another in contravention of that subsection of an offer to supply such a drug.

Possession of controlled drugs
6 (1) Subject to any regulations under section 12 for the time being in force, no person shall have a controlled drug in his possession.
(2) Subject to section 29, it is an offence for a person to have a controlled drug in his possession in contravention of subsection (1).
(3) Subject to section 29, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, which is intended, whether by him or some other person, for supply in contravention of section 5(1).

Handling of controlled drugs
7 (1) A person commits an offence if he knowingly handles a controlled drug which is intended, whether by him or some other person, for supply in contravention of section 5(1).
(2) A person handles a controlled drug for the purposes of this section if – 
(a)	he is any way concerned in carrying, removing, harbouring, keeping or concealing the controlled drug or anything containing the controlled drug; or
(b)	he deals in any manner with the controlled drug.

Misuse of controlled drugs
8(1) No person shall misuse a controlled drug.
(2) Subject to section 29, it is an offence for a person to misuse a controlled drug in contravention of subsection (1).

Possession of pipe, equipment or apparatus
9(1) No person shall have in his possession any pipe, equipment or apparatus fit and intended for use in connection with the misuse of a controlled drug or the preparation of any such drug for misuse.
(2) Subject to Section 29, it is an offence for a person to have in his possession a pipe, equipment or apparatus in contravention of subsection (1).

Acts preparatory to importation or supply of controlled drugs
10(1) It shall not be lawful for any person to do any act preparatory to the commission of an offence under section 4(3) or 5(3).

(2) Subject to section 29, it is an offence for a person to do an act preparatory to the commission of an offence under section 4(3) or 5(3).

Cultivation of cannabis plant
11 (1) Subject to any regulations under section 12 for the time being in force, no person shall cultivate any plant of the genus Cannabis.
(2) Subject to section 29, it is an offence to cultivate any such plant in contravention of subsection (1).”

6.	Section 12 gives the Minister power, among other things, to authorise the possession or supply of controlled drugs in specified circumstances. Section 27 lays down the penalties in relation to offences under the Act. For offences under sections 4, 5, 6(3), 7, 8, 9, 10 and 11 the maximum sentence for imprisonment on indictment is life imprisonment. A first offence under section 6(2) carries, on trial on indictment, a maximum sentence of 5 years imprisonment. For a second or subsequent offence the maximum sentence is 10 years. 

The issue
7.	The issue raised by this Appeal is whether a person who has possession of unlawful drugs in Bermuda with the intention of supplying them to another commits an offence under section 6(3) of the Misuse of Drugs Act 1972 when the act of supply is intended to take place outside Bermuda and therefore outside the jurisdiction of Bermudian Courts.

8.	The following submissions were made to the trial judge, to the Court of Appeal and to their Lordships on behalf of the Appellant. The prohibition imposed by section 5(1)(b) on supplying or offering to supply a controlled drug to another is implicitly restricted to acts within the territory of Bermuda. The implication arises because of an overriding principle that the laws of Bermuda are only of territorial effect. Thus section 34 of the Bermuda Constitution Order 1968 provides that “the Legislature may make laws for the peace, order and good government of Bermuda”. Section 6(3) makes it an offence to have a controlled drug in one’s possession which is intended for supply in contravention of section 5(1).  The intention of the appellant was to supply in Florida. Such supply would not have been in contravention of section 5(1) because it would have taken place outside the territory of Bermuda. It follows that no offence was committed under section 6(3). 

9.	The trial judge, having rejected this submission, directed the jury that they had to be satisfied that the appellant had an intention to supply. He did not direct that there was any territorial restriction on the place of intended supply.

10.	The Court of Appeal gave two discrete reasons for upholding the ruling and direction of the trial judge. It is logical to take the second reason first. Giving the judgment of the court, Evans JA said:

“31…if necessary we would hold that ‘supply’ in section 5(1) is not limited to ‘supply within Bermuda’, notwithstanding the presumption that an Act of the Bermudian legislature does not have extra-territorial effect. Sections 5(1) and 6(1) state what is lawful and what is unlawful under Bermudian law but they do not create any criminal offence….By stating that certain acts are prohibited, the Bermudian law does no more than say what Bermudian law is. Such a provision does not, of itself, assert any overseas or extravagant jurisdiction for the Bermudian Courts.”

11.	On this analysis the appellant was guilty because he committed the unlawful act of possession of the drugs within Bermudian territory with the intention of performing outside that territory an act that was, by section 5(1), rendered unlawful under Bermudian law albeit not, of itself, a criminal offence.

12.	The alternative reasoning of the Court of Appeal proceeded on the premise that the prohibition on supply imposed by section 5(1) applied only within the territory of Bermuda. On this premise, the Court of Appeal concluded that the words ‘in contravention of section 5(1)’ meant the same as ‘in circumstances not permitted by regulations under section 12’. The reasoning that led to this conclusion can be summarised as follows:

(i)	The only effect of the addition of the words ‘in contravention of subsection (1)’ in subsection 5(3) is to incorporate the words ‘subject to any regulations under section 12 for the time being in force’ that introduce subsection (1). The same limited effect should be given to the words ‘in contravention of section 5(1)’ in section 6(3). 
(ii)	Section 5(1)(b) states that it is unlawful ‘to supply or offer to supply a controlled drug to another’ . This contrasts with the wording of section 6(3) which speaks simply of possession of a controlled drug which is intended for ‘supply in contravention of section 5(1)’. Evans JA commented at paragraph 23: 

“We conclude that the full wording of section 5(1)(b) was deliberately omitted from section 6(3) where the only reference is to ‘supply’, and that the additional words should not be re-introduced by the general reference to ‘in contravention of section 5(1)’. In summary, this conclusion is supported by the fact that the full wording was repeated in section 5(3)(a), which sets out the requirements for that offence in full, and that in sections 5(2), 5(3) and 6(2) the references to a contravention of subsection (1) are clearly limited by their context to the possible effect of regulations made under section 12.”

Counsel for the Crown sought to support this reasoning.   

Discussion
13.	The short citation set out above summarised the effect of lengthy passages in the judgment of the Court of Appeal. The reasoning in those passages is convoluted and unpersuasive. It violates the scheme of the MDA, which is a simple one. The first subsection of sections 4,5,6,8,9,10 and 11 states, in each instance, that a specified action is unlawful. The subsequent subsection or subsections of each of those sections lay down offences of committing, being concerned in, or possessing a drug with the intention of committing, the action that is made unlawful in the first subsection.

14.	Turning to subsection 5(1), the prohibition of producing or supplying a controlled drug proscribes only production or supply in the territory of Bermuda. The presumption against extra-territorial effect applies to the subsection. Evans JA said that the court would, ‘if necessary’ find that the presumption did not apply to subsection 5(1), on the ground that the subsection did not create a criminal offence. Their Lordships do not follow this reasoning. The presumption against extra-territorial effect is not restricted to provisions creating criminal offences. Nor does it make sense to approach the meaning of subsection 5(1) in isolation. It is an integral part of a section that does create a criminal offence.

15.	The finding that the words ‘in contravention of subsection 5(1)’ in subsection 6(3) only have the limited effect of incorporating into the latter subsection the words ‘subject to any regulations under section 12 for the time being in force’ was, for the reasons given above, erroneous. The plain effect of subsection 6(3) is to restrict the offence of possession with intent to supply to circumstances where the intended supply would be unlawful by reason of subsection 5(1). 

16.	For these reasons the judge’s ruling on the submission of no case to answer on count 2 and his direction to the jury in relation to that count were unsound. The appellant’s conviction must be quashed.

17.	The use of the words ‘if necessary’, which their Lordships have emphasised in paragraph 14 above, suggests that the Court of Appeal considered that it was necessary, in order to give coherence to the MDA, to extend the effect of subsection 6(3) to circumstances where the intended supply was outside the territory of Bermuda. That is not the case. Sections 4 and 10 together adequately cover the activities of someone who commits acts in relation to a controlled drug within Bermuda with the intent of supplying it outside the territory. Had the appellant been charged with contravention of section 10 he could properly have been convicted of an offence carrying a maximum sentence of life imprisonment. 

18.	It does not follow that a conviction for doing an act preparatory to exporting a controlled drug in contravention of section 10(2) should be substituted for the appellant’s conviction on Count 2 pursuant to section 22(2) of the Court of Appeal Act 1964. No charge under section 10(2) was ever intimated against the appellant. When he admitted possession of a controlled drug in the course of his trial he did so when facing two counts, to each of which he was in a position to make a valid submission of no case to answer. It would not be just to rely upon that admission to found a conviction under section 10(2). In these circumstances, the appropriate course is to substitute for his conviction on Count 2 a conviction for possession of a controlled drug contrary to section 6(2) of MDA.

19.	Accordingly their Lordships will humbly advise Her Majesty that the appeal should be allowed, that a verdict of possession of a controlled drug be substituted for the jury’s verdict on Count 2 and that the matter be remitted to the Court of Appeal for determination of the appropriate sentence.