McGee, R v [2012] EWCA Crim 613

Case No 2012/00064/C1[2012] EWCA Crim 613
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday 9 March 2012
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MRS JUSTICE COX DBE
and
MR JUSTICE LLOYD JONES
Between
R E G I N ACrown- v -
Between
ANNE McGEE
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)165 Fleet Street, London EC4Telephone No: 020 7404 1400; Fax No 020 7404 1424(Official Shorthand Writers to the Court)
Mr G Vanstone appeared for AppellantMr T Probert-Wood appeared for Crown
JudgmentFriday 9 March 2012
[1]On 29 November 2011 in the Crown Court at Kingston upon Thames, before His Honour Judge Birts QC, the appellant was convicted of permitting her premises to be used for the supply of Class A drugs, contrary to section 8(b) of the Misuse of Drugs Act 1971. She was sentenced to 18 months' imprisonment. The period of seven days spent in custody on remand was ordered to count towards sentence. She was acquitted of conspiracy to supply Class A drugs (count 1) and of knowingly being in possession of criminal property, namely £7,000 (count 2). She now appeals against conviction by leave of the single judge.[2]There were three co-accused, one of whom, John Plumb (the appellant's son), pleaded guilty to a number of counts, including conspiracy to supply Class A drugs and firearms offences.[3]Given the nature of the appeal, the relevant facts can be summarised briefly. The appellant was the owner of 12 Russell Road. Her son, John Plumb, who was a heroin addict, lived with her. As a result of a police operation, police entered the house to conduct a search. They found under the appellant's bed an open wrap containing a block of over 100 grams of powder containing cocaine. There were other quantities of cut cocaine in the room that Plumb occupied, as well as a quantity of heroin. They discovered in the utility room cutting agent powders and other items which would have been used in mixing and packaging quantities of drugs. There were two sheds in the garden. In one of them they found a hydraulic press used for compacting mixed or cut cocaine into blocks, as well as large quantities of cutting agent.[4]The appellant's defence was that she knew nothing about any drug processing or supply. She had taken her son into her home in August 2009 to try to help him break his heroin habit. The £7,000 cash could be explained because it had been largely money withdrawn from her mother's account after her recent death. She had no idea about the drugs under the bed. She never went into the shed where the drugs paraphernalia was found. She would not necessarily know if people visited her son on the premises because his room was the old conservatory and it led directly into the garden.[5]Section 8 of the Misuse of Drugs Act 1971 provides:
"A person commits an offence if, being the occupier or concerned in the management of any premises, he knowingly permits or suffers any of the following activities to take place on those premises, that is to say -- (a) producing or attempting to produce a controlled drug in contravention of section 4(1) of this Act; (b) supplying or attempting to supply a controlled drug to another in contravention of section 4(1) of this Act, or offering to supply a controlled drug to another in contravention of section 4(1); (c) preparing opium for smoking; (d) smoking cannabis, cannabis resin or prepared opium ...."
[6]In his summing-up

the judge defined the necessary elements of the offence in the following way:

"Now count 3 alleges that between the same dates, being the owner and occupier of 12 Russell Road, the defendant knowingly permitted on those premises the supply of a controlled drug of Class A (namely cocaine). Here the prosecution again must prove two things: first of all, that the defendant was the owner and occupier of those premises, and secondly that she knowingly permitted -- allowed, if you like -- the supply of cocaine to take place on those premises. That is a simpler legal test than that of conspiracy. In this case the first ingredient is admitted, because she is the owner and we know that she is the owner of the premises and has been for I think she said 34 years. So the question you have to ask yourselves -- the only question here -- is: did she knowingly permit the supply of cocaine to take place on those premises?"
[7]The appellant submits that the judge erred in identifying as the only relevant question for the jury the issue of knowledge, that is, whether she knowingly permitted supply to take place on the premises. (In fact, the judge went on to explain that this could also include turning a blind eye.) The appellant submits that in addition to the question of knowledge, the jury had to be satisfied that the supply of cocaine actually took place on the premises. She could not know of something that had not occurred. Both counsel and the judge in his summing-up appear to have assumed that there was no issue about that. In fact, it had never been admitted by the appellant that such supply had occurred and, as the prosecution concede, there was no evidence before the jury of any such supply. Counsel submits that there would have been a cast-iron case for having the charge dismissed at half time on the basis that the prosecution had failed to adduce sufficient evidence to establish the offence. Counsel relies in particular upon the decision of the Court of Appeal Criminal Division in R v Auguste [2003] EWCA Crim 3329, [2004] 1 WLR 917. That was a case under section 8(1)(d) of the 1971 Act which makes it an offence for a person who manages premises knowingly to permit the smoking of cannabis, cannabis resin or prepared opium. The appellant in that case admitted that he would have permitted cannabis to be smoked on the premises and there was, in fact, cannabis found there. However, there was no evidence that any smoking had actually taken place. The judgment of the court was given by Maurice Kay LJ. The court accepted that the conviction should be quashed on the ground that it was necessary for the prosecution to establish that the requisite activity had actually taken place before a conviction could be sustained. That was a necessary ingredient of the offence. The fact that the appellant would have allowed smoking to take place was not enough. Since it was common ground that it was not open to the jury to conclude that smoking cannabis had taken place, there was no basis upon which the appellant could be convicted.[8]In our judgment, with respect, that analysis is plainly correct. It applies equally to section 8(b). The only question is: was there evidence before the jury of any supply on the appellant's premises? Mr Probert-Wood, in his written submissions, contended that the concept of supply can be given an extremely broad meaning. He said this:
"4. The term 'supply' self-evidently encompasses a number of different acts or stages; it is not confined to the actual handover of drugs. In this case there was abundant, uncontested evidence of the wholesale preparation of cocaine for profit. Cocaine, a cutting agent and general paraphernalia associated with the supply of drugs were found in the appellant's bedroom, and her son's room. In addition, bundles of cash were located in the son's bedside cabinet. ..."
In opening the prosecution had described the property as a "cocaine factory".[9]We accept that there can be no doubt, as Mr Probert-Wood contends, that with drugs of this quantity there was an obvious intention to supply them to third parties. It is impossible to suggest otherwise. However, that does not establish the element of this offence. It is necessary for the supply actually to take place on the premises. The section does not say "from the premises". Counsel conceded that had the house been burnt down together with all the drugs and the drugs paraphernalia, it could not possibly be suggested that any drugs had been supplied to anyone merely because they had been brought into the premises, stored and packaged with that object in mind. It may well be that the son did indeed pass drugs to third parties on the premises, but the fact is that there was no evidence of that before the jury.[10]It is no answer to say, as the prosecution do, that the appellant could have produced evidence from her son as to how the arrangements were operated. It was for the prosecution to prove the case, not for her to disprove it. In our view a crucial element of the offence was not established on the evidence. It is unfortunate that the error was not picked up at the time. We understand why the judge summed up as he did, because nobody took the point that this crucial feature of the evidence had to be established. Everybody appears to have assumed that the only issue for the jury was knowledge. The fact that the appellant’s counsel did not pick up on the point is no reason for upholding the conviction. (We should add that counsel who appears on behalf of the appellant today did not represent her in the court below.)[11]Accordingly, we quash the conviction. There is also an appeal against sentence, but in the event we do not have to consider it.

Cited in 1 later judgment