Martin & Anor, R. v [2014] EWCA Crim 1940

[2014] EWCA Crim 1940Case Nos. 2013/05617/C5 & 2013/ 05656/C5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
The Law Courts
Small Street
Venue BristolDate Friday 25 th July 2014
BS1 1DA
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Thomas of Cwmgiedd)
MR JUSTICE ROYCE
and
MR JUSTICE TEARE
Between
R E G I N ACrown- v -
Between
DWAIN ASHLEY MARTINSTEVEN ANTHONY BRIMECOME
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
Mr R J Livingstone appeared on behalf of both AppellantsMr M Ruffell appeared for Crown
J U D G M E N TLord Thomas of Cwmgiedd, CJ:
[1]On 10th October 2013 in the Crown Court at Winchester before Her Honour Judge Miller and a jury the appellants were convicted of being concerned in the supply of heroin, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. Subsequently, Martin was sentenced to seven years' imprisonment and Brimecome to four years' imprisonment. The appellants appeal against conviction with the leave of the single judge. A co-accused, Ian Dyke, had previously pleaded guilty at the plea and case management hearing to possession with intent to supply the same quantity of heroin. He was sentenced to 40 months' imprisonment.[2]The appeal turns on a short point of statutory construction relating to the meaning of "being concerned in the supply" in section 4(3)(b) of the 1971 Act.[3]The facts on which the prosecution relied can be shortly summarised. On 6th May 2013 the appellant Miller used a phone that was found in his possession to send a text message to someone called "Ant Coz" to the effect that if he could find enough customers he would obtain drugs from his friend and try supplying them.[4]The following day, 7th May, there was photographic evidence showing Miller, Brimecome and Dyke travelling in an Astra car from Portsmouth to Leyton, East London, and, after an hour or so in Leyton, travelling back towards Portsmouth.[5]An officer observed the Astra being driven erratically on the A3 road. He decided to follow it. It pulled into a service station at Liphook. Martin was driving, Brimecome was in the front passenger seat and Dyke was in the back. When the car pulled up at the petrol pumps Dyke got out and went towards the shop. Dyke was stopped by a police officer. He dropped a package in such a way that the police officer did not at that moment see it. It was, however, subsequently found to contain 116 grams of heroin, worth £11,600. Brimecome and Martin were searched. Nothing was found. Brimecome created a disturbance, which enabled Dyke to try to retrieve the package. He then kicked it under the police car. His actions were captured on CCTV. The trio were allowed to drive off. The police then found the package which was underneath the police car.[6]The Astra car was stopped. Mobile phones were found; they contained no SIM cards. The Crown asked the jury to infer that they had been deliberately removed because the police would be able to use them to ascertain that the three were drug dealers. All three declined to comment in interview. Martin produced a prepared a statement. The fact that Martin had two previous convictions for conspiracy to supply Class A drugs is the explanation for the imposition of the more substantial sentence on him.[7]All three were originally charged with possession with intent to supply. That is the charge to which Dyke subsequently pleaded guilty at the plea and case management hearing. At that hearing both appellants asked to have that charge against them dismissed. The Crown applied to amend the charge to an offence under section 4(3)(b), being concerned in the supply. It was on that basis that the matter proceeded to trial. However, counsel at the plea and case management hearing said that both appellants wished to reserve the point in relation to whether there was an offence under section 4(3)(b). Subsequently, at the close of the prosecution case, they applied to have the case dismissed on the evidence we have set out, saying that they were not guilty of the offence charged.[8]The argument was that the offence under section 4(3)(b) could only be made good if there had been evidence of a supply to another having taken place; that it was not enough for the prosecution to prove that a supply would take place in the future. In other words, it was submitted that there had to be a completed supply by delivery. The word "supply" did not include a transaction which was the "process of supply", where the drugs would in due course no doubt be delivered to another person.[9]After clearly setting out the evidence that was before her,

the judge said of the argument:

"It seems to me that there must be scope for this offence to cover the factual situation here. To direct the jury to find the defendants not guilty on the basis that being in the middle of supplying is not being concerned in supplying seems to me to be a nonsense, if participation and knowledge are satisfactorily proved. No doubt if I am wrong about this matter the Court of Appeal will say so in due course, but the submission is rejected upon that basis."
[10]It is right immediately to say that we agree with the judge. She was not wrong; she was quite right. Her analysis was clear and correct.[11]The section was for these purposes authoritatively considered by a Court of Appeal presided over by Robert Goff LJ (as he then was) in R v Hughes (Robert) (1985) 81 Cr App R 344. It is not necessary to set out the facts. Suffice it to say that the Recorder had failed to explain the ingredients of the offence to the jury, and particularly the meaning of "concerned in". In the judgment of the court given by Robert Goff LJ, he drew attention to the fact that there were three principal offences contained within subsection (3): under subsection (3)(a) the offence of supply or offering to supply to another; subsection (3)(b) to be concerned in the supply to another; and subsection (3)(c) to be concerned in the making to another of an offer to supply.

(b) and (c) he said (at page 347):

"So the difference between (b) and (c) is that in (b) there has to be an actual supply in which the accused was concerned, whereas under (c) it is enough that there was an offer to supply in which the accused was concerned." 12. "… for an offence to be shown to have been committed by a defendant contrary to subsection (b) or subsection (c), as the case may be, the prosecution has to prove (1) the supply of a drug to another, or as the case may be the making of an offer to supply a drug to another, in contravention of section 4(1) of the Act; (2) participation by the defendant in an enterprise involving such supply, or, as the case may be, such offer to supply; and (3) knowledge by the defendant of the nature of the enterprise, i.e. that it involved supply of a drug or, as the case may be, offering to supply a drug."
It is particularly important to notice that the words of the statute were used in that quotation, and that the word "actual" supply does not appear. So that no one else would fall into error, he set out the three ingredients.[12]Since that time, there has been a reiteration of what the learned Lord Justice said: see, for example, R v Akinsete and Prempeh [2012] EWCA Crim 2377. It is unnecessary, in our view, to refer further to that case, to R v Blake and O'Connor, or to any other case because the judgment of Robert Goff LJ suffices.[13]The question, therefore, in this case, as the learned judge directed herself, was: were the three elements established? As she said in the short extract which we have set out, there was no doubt that there was evidence of participation in the enterprise to supply drugs to another, and knowledge of the nature of the enterprise. The sole issue, and the only point taken on behalf of the appellants, was: had there been supply of drugs to another?[14]It seems to us that this is a very short point of statutory construction. Was the evidence that was called before the jury sufficient to constitute evidence of “supply to another”? Those are the words in the statute. It does not say "actual supply to another"; nor does it say "delivered to another". It simply says "supply to another". This case illustrates the importance of courts looking at and applying the simple language of the statute.[15]Was there, in this case, evidence of supply to another? Clearly there was evidence. First of all, there was the text message on 6th May 2013 which discussed supply. Secondly, there was evidence of the journey to London to collect drugs. Thirdly, it was apparent from the quantity of the heroin (worth £11,600) that it was not for the use of one of the occupants of the car; it was for the use of others.[16]Did that, therefore, constitute supply to another? The word "supply" is a broad term. It does not by any stretch of the imagination result in a confinement to the expressions "actual delivery" or "past supply". It refers to the entire process of supply. In the present case there was clear evidence that the drugs were en route from London to Portsmouth. They were being transported so that they could be delivered to others in the Portsmouth area. It seems to us that that falls plainly within the word "supply". The case resolves itself with no more difficulty than that.[17]We were referred to two further cases: R v McGee (Anne) [2012] EWCA Crim 613 and R v Manh Toan Dang and Others[2014] EWCA Crim 348. They add nothing to the clear words of the statute.[18]For those reasons, shortly stated, the judge was plainly right. She expressed herself in clear, unequivocal terms for which she is to be warmly commended. Far from saying that she was wrong, the Court of Appeal says that she was absolutely right. The appeals against conviction are dismissed. ___________________________________

Cited in 7 later judgments