Darshan Patel v R [2025] EWCA Crim 1149

[2025] EWCA Crim 1149Case No 202302559 B1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SWINDON
HH JUDGE TOWNSEND
T20220111
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/09/2025
Before
LORD JUSTICE HOLROYDE,VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISIONMR JUSTICE CHOUDHURYMR JUSTICE WALL
Between
DARSHAN PATELAppellantTHE KINGRespondent
S Ray KC and L Harris (assigned by the Registrar of Criminal Appeals) for appellantB Douglas-Jones KC and R Shellard (instructed by CPS Appeals and Review Unit) for respondentHearing Hearing dates: 1 July 2025
Approved JudgmentThis judgment was handed down remotely at 2.00pm on 5 September 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
[1]The appellant pleaded guilty to three offences of fraudulent evasion of the prohibition on importation of controlled drugs, and one offence of possession of cannabis with intent to supply. For each offence, he was sentenced to concurrent terms of 14 months’ imprisonment, suspended for 24 months. With the leave of the full court, he appealed against his convictions. At the conclusion of the hearing, on 1 July 2025, we announced our decision that the appeal must be dismissed, and stated that we would give our reasons in writing at a later date. This we now do. Summary of the relevant facts:[2]On 6 August 2020 the appellant completed an online form in which he told Wiltshire Police that he would shortly be starting a business supplying cannabidiol (“CBD”) hemp and oil products with either a zero or a low content of Delta-9-Tetrahydrocannabinol (“THC”). He asserted that all his stock was “fully legal within EU Laws with the content of each product having less than 0.2% THC”. He invited advice on any products he could not stock. The Wiltshire Police did not reply. The appellant then began to operate, and to market via a website, a mail order business.[3]On 19 October 2020 a Customs officer intercepted a package which had been sent from Switzerland to that business and the appellant. It contained a total of about 1.3kg of herbal material, which tested positive for THC.[4]In the course of the ensuing enquiries by Wiltshire Police, on 20 November 2020 PC Hemns replied to the appellant’s email of 6 August. He wrote that cannabis, and products containing the THC cannabinoid, are class B controlled drugs under the Misuse of Drugs Act 1971 (“MDA 1971”). PC Hemns referred to the “common misconception” that it is legal to supply CBD products which contain no more than 0.2% THC. He quoted Home Office guidance explaining that licences may be issued for the cultivation of cannabis plants with a low THC content for the production of hemp fibre for industrial purposes, or for the obtaining of seeds which would be pressed to make oil; but such licences only apply to the use of seeds and fibre/mature stalks, not to the leaves and flowers which are controlled parts of the plant.[5]PC Hemns gave the appellant this clear warning:
“From looking at your website, there appears to be the sale of flowers and hash which, although you state fall below the 0.2% THC content, are still covered by the Misuse of Drugs Act and are therefore illegal, and should you continue to sell these, will render you liable for prosecution.”
[6]The appellant nonetheless continued to import and sell CBD products. Further packages were intercepted and found to contain quantities of herbal material.[7]On 14 January 2021 the appellant was arrested. 70.22 grams of a herbal substance, £3,000 in cash and various CBD products were found at his home. When interviewed under caution, the appellant denied being involved in the importation or supply of illegal drugs and asserted that all the products he supplied were “UK compliant”. The criminal proceedings:[8]The appellant was charged on an indictment containing six counts. On count 1, he was charged in relation to “certain goods, namely a quantity of herbal cannabis”, with an offence contrary to s170 of the Customs and Excise Management Act 1979 (“CEMA 1979”) of fraudulent evasion of the prohibition on importation imposed by s3(1) of the MDA 1971. This related to the 1.3kg of herbal material seized on 19 October 2020 (see paragraph 3 above). Testing showed that some of the material had a THC content of 1%, some a THC content of less than 1%.[9]Counts 2, 3, and 4 charged similar offences in relation to herbal material seized on dates between 20 October 2020 and 11 January 2021. In each case, the quantity of herbal material was in excess of 1kg. In count 2, the relevant goods were “a quantity of herbal cannabis and a quantity of cannabis resin”. In counts 3 and 4, the relevant goods were “a quantity of herbal cannabis”. Testing of samples showed THC levels of less than 1% in each case.[10]Counts 5 and 6 related to the items found at the appellant’s home on 14 January 2021 (see paragraph 7 above). Count 5 charged him with possession with intent to supply of a quantity of cannabis, contrary to s5(3) of the MDA 1971. The THC content was not tested. Count 6 charged him with possessing criminal property, namely a quantity of cash.[11]The appellant was represented by solicitors and counsel, Mr Normanton. In view of criticisms made of his former legal representatives, the appellant was invited to, and did, waive his legal professional privilege in relation to the advice he received.[12]The appellant initially pleaded not guilty to all counts. However, on 22 November 2022 he indicated that he was willing to plead guilty to counts 2-5 on a particular basis, and sought a Goodyear indication as to sentence.[13]The basis of the proposed pleas was, in summary, as follows: i) The appellant had initially believed it to be legal to sell products with “a very low level of THC (1%)”. ii) After receiving PC Hemns’ email of 20 November 2020 he “made other enquiries, including online research” and reached the view that because others were selling the same product, it was acceptable to do so. iii) He accepted, however, that he was “left with a suspicion about the illegality of the product” which he tried to ignore as he continued to import and sell the product. iv) He asserted that the product “did not have any psychoactive effect, containing less than 1% THC”.[14]That basis was acceptable to the prosecution, and the judge gave an indication that if guilty pleas were entered at that stage, the total sentence would not exceed 2 years’ imprisonment, suspended. The appellant pleaded guilty to counts 2-5. The prosecution offered no evidence on count 1 (relating to an importation before PC Hemns’ warning), and count 6 was ordered to lie on the file. Sentencing was adjourned.[15]It should be noted that before he entered those guilty pleas, the appellant signed an endorsement saying that he had decided to plead guilty to counts 2-5 because he had received the indication as to sentence. He confirmed that he had taken the decision “on the basis of advice but also of my own free will”.[16]On 23 February 2023 the appellant was sentenced as we have stated in paragraph 1 above. The grounds of appeal:[17]The appellant initially applied for an extension of time to apply for leave to appeal against conviction on grounds of his own composition. They have been replaced by perfected grounds of appeal settled by counsel. The appellant contends that his convictions are unsafe, notwithstanding his guilty pleas, on four grounds, which we summarise as follows: i) Ground 1: Having regard to the decision of this court in R v Margiotta and others [2023] EWC Crim 759 (“Margiotta”), the herbal material was not a controlled drug and it was not unlawful for the appellant to import it. ii) Ground 2: The appellant’s guilty pleas to counts 2, 3 and 4 were equivocal pleas entered following incorrect legal advice, in circumstances where he had a defence of lack of knowledge which was likely to succeed, and were therefore vitiated in accordance with the principles stated by this court in R v Tredget [2022] EWCA Crim 108 (“Tredget”). iii) Ground 3: The appellant’s guilty plea to count 5 is similarly vitiated because it too was an equivocal plea entered following incorrect legal advice, in circumstances where the appellant had a defence under s28 of MDA 1971 which was likely to succeed. iv) Ground 4: The law relating to cannabis products containing a low level of THC is not sufficiently clear, and criminalisation of the appellant’s conduct therefore breached his rights under article 7 of the European Convention on Human Rights (“article 7”).[18]Each of the grounds of appeal is opposed by the prosecution. The legal framework:[19]Before summarising the submissions, it is convenient to refer to relevant legislation and case law. Relevant provisions of the MDA 1971 and CEMA 1979:[20]By s2 of the MDA 1971, the expression “controlled drug” includes any substance or product specified in Schedule 2. Cannabinol, cannabinol derivatives, cannabis and cannabis resin are so specified. By s37:
“‘cannabis’ (except in the expression ‘cannabis resin’) means any plant of the genus Cannabis or any part of any such plant (by whatever name designated) except that it does not include cannabis resin or any of the following products after separation from the rest of the plant, namely – (a) mature stalk of any such plant, (b) fibre produced from mature stalk of any such plant, and (c) seed of any such plant; ‘cannabis resin’ mean the separated resin, whether crude or purified, obtained from any plant of the genus Cannabis”
[21]By s3(1), the importation of a controlled drug is prohibited. By s3(2), subsection (1) does not apply to importation in accordance with a licence issued by the Secretary of State.[22]By s4(1), subject to exceptions which are immaterial to this case, it is an offence to supply or offer to supply a controlled drug to another.[23]By s5(3), subject to s28, 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 s4(1).[24]In R v Boyesen [1982] AC 768 the House of Lords rejected a submission that the offence of possession of a controlled drug could only be proved if the quantity of the drug was “usable”. At p777C, Lord Scarman said:
“The question is not usability but possession. Quantity is, however, of importance in two respects when one has to determine whether or not an accused person has a controlled drug in his possession. First, is the quantity sufficient to enable the court to find as a matter of fact that it amounts to something? If it is visible, tangible and measurable, it is certainly something.”
[25]So far as is material for present purposes, s28(2) and (3) provide:
“(2) Subject to subsection (3) below, in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged. (3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused – (a) shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had any reason to suspect that the substance or product in question was the particular controlled drug alleged; but (b) shall be acquitted thereof – (i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug …”
[26]So far as is material for present purposes, s170(2) of the CEMA 1979 provides:
“(2) Without prejudice to any other provisions of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion – … (b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment … he shall be guilty of an offence and may be arrested.” he shall be guilty of an offence and may be arrested.”
[27]In R v Datson [2022] EWCA Crim 1248 this court held that on a charge under s170 of the CEMA 1979 the prosecution must prove that the goods in question were subject to a statutory prohibition on importation; that in respect of those goods, there had been a fraudulent (that is, dishonest and deliberate) evasion; that the accused had been involved in that fraudulent evasion; and that the accused had known at the time of his involvement that the goods were subject to a prohibition on importation and that the evasion was deliberate and dishonest. A genuine mistaken belief of law, at the material time, that the goods were not subject to a prohibition was therefore capable of affording a defence to such a charge. Appeals where a defendant has pleaded guilty:[28]In Tredget this court identified three categories of case in which a conviction may be found to be unsafe even though the defendant had pleaded guilty to it: where the guilty plea was equivocal or was otherwise vitiated; where there was a legal obstacle to the defendant’s being tried; and where it was established that the defendant did not commit the offence. In each category, it is for the defendant to establish the circumstances on which he relies.[29]As to the first category, the court at [158] accepted that a guilty plea may be vitiated by erroneous legal advice or a failure to advise as to a possible defence; but only if the effect of the deficient advice was to deprive the defendant of a defence which would probably have succeeded. The court cited in this regard R v Boal [1992] QB 591, in which it was held that this court may exceptionally intervene if a possible line of defence is overlooked, but only if the defence would quite probably have succeeded and the court concludes, therefore, that a clear injustice has been done. EU law:[30]In Criminal proceedings against Hammarsten (C-46201) [2003] ECR 1-781 the court considered provisions of the European Community Treaty which prohibited quantitative restrictions on imports and exports of agricultural products between Member States. Such products included “True hemp (Cannabis sativa), raw or processed but not spun”. Aid was provided to support the growing of hemp, but was subject to limitations including a maximum THC content, initially of 0.3% but reduced to 0.2% after 2001. Swedish legislation classified all plants of the hemp family, including industrial hemp as narcotic drugs. The issue was whether that legislation, which had the effect of prohibiting the cultivation and possession of industrial hemp, was precluded by Community law. The court held that it was.[31]In Josemans v Burgemeester van Maastrict (C-137/09) [2011] CMLR 19 the European Court of Justice considered a challenge to a local regulation which restricted the use of coffee-shops (in which the sale and consumption of cannabis, in limited quantities and under controlled conditions, was tolerated) to local residents. The issue was whether that restriction offended against the free movement of goods within the European Community.[32]At [36] the court stated that it was important to bear in mind – “… that, since the harmfulness of narcotic drugs, including those derived from hemp, such as cannabis, is generally recognised, there is a prohibition in all the Member States on marketing them, with the exception of strictly controlled trade for use for medical and scientific purposes.”[33]The court observed, at [37], that that legal position was consistent with various international instruments, including the United Nations Single Conventions on Narcotic Drugs (1961, as amended in 1972) and on Psychotropic Substances (1971). It concluded, at [41]:
“It follows that narcotic drugs which are not distributed through channels which are strictly controlled by the competent authorities to be used for medical and scientific purposes are, because their very nature, subject to a prohibition on importation and offering for sale in all the Member States.”
[34]In BS, CA (C-66318) [2021] 2 CMLR 5 the European Court of Justice considered arts. 34 and 36 of the Treaty on the Functioning of the European Union (“TFEU”). Art. 34 prohibits, as between member states, “quantitative restrictions on imports and all measures having equivalent effect”. However, by art. 36, the provisions of art. 34 shall not preclude prohibitions or restrictions on imports justified on grounds of public morality, public policy or public security or of the protection of health and life.[35]The issues in BS, CA related to the marketing of CBD oil which had a THC level of less than 0.2%. The court, at [59] – [62] referred to the principles established by Josemans. In accordance with those principles, it was necessary to decide whether the CBD products concerned – which had been lawfully produced and marketed in the Czech Republic - were a narcotic drug. The court concluded at [76] that they were not a drug within the meaning of the Single Convention and that accordingly they were goods subject to arts. 34 and 36.[36]In Margiotta, the defendants carried on a business importing and selling cannabis which had lawfully been grown in Italy and which contained trace levels of THC not exceeding 0.2%. They were charged with offences of being knowingly concerned in the fraudulent evasion of the prohibition on importing controlled drugs, and being concerned in the supply of cannabis to another. The judge in the Crown Court acceded to the defendants’ submission that their prosecution should be stayed as an abuse of the process, on the ground that, having regard to the chemical composition of the imported material and by virtue of article 34 of the TFEU, it was not unlawful for them to import and sell the cannabis plant material. The prosecution appealed against the judge’s ruling. This court dismissed the appeal.[37]The reasoning of the judge in the Crown Court can be summarised as follows: i) Absent any considerations of EU law, the plant material concerned was cannabis within the meaning of the MDA 1971. ii) It had lawfully been grown in Italy, and contained less than 0.2% THC. iii) It was therefore for the prosecution to show, “had they sought to do so”, that the plant material was a “narcotic drug” which could not amount to a good to which art. 34 applied. The judge took the view that the prosecution had been wise not to seek to do so, as “only a product whose harmfulness is demonstrated or generally recognised and whose importation and marketing is prohibited in all Member States” may be classified as such. iv) The plant material did not amount to a narcotic drug, or had not been proved by evidence to be properly classified as such. v) The provisions of the MDA 1971 on which the charges were based were measures capable of hindering intra Union trade in the plant material and must therefore be justified on one of the public interest grounds in art. 36. vi) But the prosecution had not sought to establish any such justification by evidence.[38]On appeal, this court noted that arts. 34 and 36 were concerned with addressing the single market in agricultural products, which expressly included “True hemp (cannabis sativa), raw or processed but not spun”, and observed (at [33]) that the law of the EU had had to grapple with seeking to apply the principles of the common market to hemp as an agricultural product, whilst acknowledging the status of cannabis as a narcotic.[39]The court also observed, at [8], that the procedural history of the case in the Crown Court had had the result that the factual position was “neither as clear nor as comprehensive as would be desirable”.[40]The court made a close analysis of relevant EU Regulations, including (at [48]) Regulation (EU) No 1307/2013, which set out rules for direct payments to farmers under the common agricultural policy, but which included the following limitation:
“Areas used for the production of hemp shall only be eligible hectares if the varieties used have a tetrahydrocannabinol content not exceeding 0.2%”
. The court also considered in detail the decisions in Criminal proceedings against Hammarsten and BS, CA. It noted, at [61], that at the time of the relevant conduct by the defendants, the TFEU and the EU Regulations had direct effect as a matter of UK domestic law, and that their effect had been continued as “retained EU law” by s3 of the European Union (Withdrawal) Act 2018.[41]The court concluded that, on the factual findings made in the court below, the judge had been correct to conclude that art. 34 of the TFEU was engaged. It further concluded that, as the prosecution had not advanced any art. 36 argument or evidence, it was not appropriate for the court to consider a justification argument for the first time on appeal.[42]For those reasons, the court dismissed the prosecution appeal.[43]The authorities cited to the court in Margiotta (which was heard in June 2023) did not include the recent (October 2022) decision of the High Court of Ireland in Bogusas v Minister for Health and others [2022] IEHC 621 (“Bogusas”). In his judgment dismissing an application for judicial review, Mr Justice Owen held that unauthorised trade in narcotic or psychotropic drugs does not come within art. 34 of the TFEU. He pointed out, at [59], that regulations such as Regulation (EU) No 1307/2013 relate to the protection of the EU common market in raw hemp and hemp seeds for use in agriculture or in industrial processing. He continued, at [60]:
“The 0.2% threshold has no necessary correlation with THC content of preparations derived from processing of parts of the plant which yield psychoactive agents. This threshold is not a measure of safety of non-medicinal use of THC.”
[44]At [11] the judge referred to art. 7 of the 1971 Single Convention, which obliges all contracting parties to forbid unrestricted public access to products containing THC, and stated at [12] that unilateral action or inaction by a Member State which permitted such marketing did not result in the activity becoming lawful in other Member States.

The judge went on to say:

“13. It follows that if a Member State allows use of a Schedule 1 psychoactive substance, such as THC, in a manner which is not permitted under Article 7 of the 1971 Convention, this national rule or concession cannot engage Article 34 of the TFEU. Any activity so permitted remains within the principle that unauthorised trade in narcotic or psychotropic drugs does not come within Article 34. These activities are treated as ‘res extra commercium’. 14. ‘Schedule 1’ narcotic and psychoactive drugs which are not distributed through channels which are strictly controlled by the competent authorities to be used for medical and scientific purposes are, because of their very nature, subject to a prohibition on offering to the public for sake in all Member States. 15. Even if Article 34 of the TFEU was considered as capable of applying to unrestricted marketing of hemp oil containing THC to the public, the applicant’s claim could not succeed. This is because Article 36 of the TFEU permits Member States to impose restrictions on marketing of goods as precautionary measures for protection of public health. The evidence demonstrates that Irish controls on unrestricted marketing of hemp oil containing any THC to the public are justified on health grounds. 16. The applicant has not placed any evidence before this Court which shows that current restrictions on unrestricted public access to preparations containing THC may not be fully warranted. Without some evidence on this, his claim that these restrictions are in excess of what is allowed by Article 36 of the TFEU cannot be maintained.”
The submissions to this court:[46]We turn to the competing submissions in respect of each of the four grounds of appeal summarised in paragraph 17 above. We have been assisted by the submissions of Simon Ray KC and Lyndon Harris for the appellant, and Benjamin Douglas-Jones KC and Robin Shellard for the respondent. We are grateful to them all. We shall summarise their submissions briefly, but we have considered all the points made on each side, both in writing and orally.[47]In relation to grounds 2 and 3, it should be noted that Mr Normanton has provided this court with detailed information about the advice he gave to the appellant and the appellant’s reasons for pleading guilty. It is clear that the appellant accepted that the plant material which he imported was in fact and law cannabis within the definition in the MDA 1971. It is also clear that, contrary to the unjustified criticisms of him which the appellant had initially made, Mr Normanton advised the appellant that he could seek to rely on a defence of lack of knowledge in relation to counts 2 – 4, and a defence under s28(3) in relation to count 5, but also advised him that those defences were undermined by PC Hemns’ email. The appellant now accepts that he was so advised, and no criticism of Mr Normanton is now made.[48]Mr Normanton accepts that he was not aware of the argument which 7 months later was considered by this court in Margiotta. He indicates that, if he had been aware of the court’s acceptance of that argument, he would likely have given different advice to the appellant, and in particular would have advised that expert evidence be obtained as to whether the plant material imported by the appellant was “raw hemp”. He adds that he would likely also have advised that the argument was unlikely to assist the appellant in relation to his activity after 31 December 2020. Ground 1:[49]The appellant submits that the decision in Margiotta, that it is for the Crown to prove either that the imported material falls outside art. 34, or that the restrictions in the MDA 1971 were justified under art. 36, is correct, and is not undermined by the decision (in a different jurisdiction and in a different context) in Bogusas.[50]The appellant submits that the prosecution failed to adduce evidence to prove, contrary to the appellant's contention, that the THC quantity of the plant material which he imported was more than 0.2%. He submits that, throughout the period covered by the indictment, he had a right to import low THC cannabis, and that the blanket prohibition in the MDA 1971 cannot replace the balancing and proportionality exercise required by art. 36 of the TFEU. Alternatively, he submits, the minimal quantity of THC was such that the plant material could not be said to amount to a controlled drug. Further, if the appellant did not have a continuing right to import and sell the plant material, then the UK’s withdrawal from the European Union has inadvertently criminalised such conduct, which is contrary to principle.[51]The respondent submits that the long-established regime in England and Wales relating to controlled drugs was not eroded by the TFEU. It is submitted that the decision in Margiotta should be confined to its own facts, or alternatively that it should be treated as a decision made per incuriam, because Bogusas was not cited to the court and the principles stated in Bogusas were not considered. The respondent submits that arts. 34 and 36 of the TFEU relate to agricultural products and narcotic drugs, but the MDA 1971 relates to controlled drugs, and the THC content is irrelevant to the classification of cannabis and cannabis resin as controlled drugs.[52]The respondent relies on Boyesen (see paragraph 24 above) as establishing that if a controlled drug is “visible, tangible and measurable”, as was the case here, a de minimis argument cannot afford a defence. The respondent therefore submits that the plant material imported and sold by the appellant was cannabis, whatever its THC content.[53]The respondent recognises that Regulation (EU) 1307/2013 linked hemp cultivation to a THC limit. The respondent also accepts that the case law of the CJEU gives a narrow scope to the exception provided by art. 36 of the TFEU, requiring Member States to demonstrate a genuine threat to public health: “It is for the national authorities which invoke it to demonstrate in each case, taking account of the results of international scientific research, that their legislation is necessary in order effectively to prevent the interests referred to in that provision, and, in particular, that the marketing of the products in question poses a genuine threat to public health that must undergo an in-depth assessment”: see BS, CA (C-66318) EUC2020938; [2021] 2 CMLR 5 at [87] The respondent acknowledges that such an exercise was not carried out in this case, but submits that the appellant cannot rely on the decision in Margiotta because there was no evidence showing that any of the imported cannabis had a THC level not exceeding 0.2%. Moreover, the appellant by his guilty pleas accepted that the plant material which he imported was a controlled drug.[54]The respondent further submits that since 11pm on 31 December 2020, as a result of the Prohibition on Quantitative Restrictions (EU Exit) Regulations 2020, arts. 34 and 36 of the TFEU no longer have direct effect as a matter of UK domestic law. It follows, it is submitted, that in relation to the January 2021 offences charged in counts 4 and 5, the appellant cannot rely on Margiotta, even if that decision could be said to assist him on counts 2 and 3. Ground 2:[55]The appellant submits that, as his basis of plea showed, he continued to believe, notwithstanding PC Hemns’ email, that low THC cannabis was not a controlled drug and that he was acting legally. He was therefore not knowingly concerned in a fraudulent evasion of a statutory prohibition. It is submitted that his guilty pleas to counts 2, 3 and 4 were equivocal and based on erroneous legal advice, and he did not commit the offences charged.[56]The respondent submits that Mr Normanton’s response to the criticisms made of him shows that the appellant was advised about s170(2)(b) of the CEMA 1971, and was advised that he could advance a defence of lack of knowledge. That potential defence did not, however, have any real prospect of success. Ground 3:[57]The appellant submits that the guilty plea to count 5 was also equivocal. He contends that the suspicion which he admitted in his basis of plea (see paragraph 13(ii) above) arose from PC Hemns’ email but by the time of the conduct charged in count 5 had been dispelled by his own research and his belief that he was acting lawfully. A defence under s28 of MDA 1971 was therefore available to him, and he was incorrectly advised. It is submitted that even if the plea was entered on a pragmatic basis, to avoid the risk of a sentence of immediate imprisonment, the conviction is nonetheless unsafe.[58]The respondent submits that the appellant was fully advised about the defence afforded by s28(3) of the MDA 1971. Such a defence plainly had no prospect of success. The respondent further submits that consideration of whether the guilty plea was “pragmatic” is irrelevant: the appellant made his decision and entered an unequivocal guilty plea. Ground 4:[59]The appellant submits that his prosecution was a breach of his rights under Article 7, which prohibits punishment without law, because the law relating to the importation and sale of CBD products with a low THC content is unclear and citizens cannot know how to regulate their behaviour.[60]The respondent submits that the law is perfectly clear: cannabis is a controlled drug under the MDA 1971, and since 31 December 2020 arts. 34 and 36 of the TFEU have no direct effect in England and Wales. CBD in its pure form would not be controlled under the MDA 1971 (though it would be subject to a different regulatory and licensing regime); but if a CBD product contains any controlled cannabinoids, whether intentionally or otherwise, then Home Office guidance warns would-be suppliers that it is likely that the product will be controlled. Analysis:[61]We begin by recording our acceptance of the respondent’s submission that arts. 34 and 36 ceased to have direct effect in this jurisdiction after 31 December 2020. It follows that the issues relating to the effect of those articles, important to the parties and interesting though they are, are unlikely to come before the courts in this country again. As Mr Fortson KC observed in his impressive commentary at [2023] Crim LR 676, the decision in Margiotta “… may have a relatively short shelf-life for the purposes of most criminal cases tried in the courts of the UK.”[62]As to the appellant’s principal argument, that the relevant plant material was not a controlled drug, and his importation and sale of it was therefore not a crime, we observe that it is not immediately apparent why provisions of the TFEU aimed at protecting the common market in raw hemp, intended for use in industrial processing or agriculture, should necessarily be undermined by domestic legislation providing for the control of narcotic and psychoactive drugs. We note that in Criminal proceedings against Hammarsten (see paragraph 30 above) the relevant Swedish legislation had the effect of preventing any cultivation of industrial hemp, and that in BS, CA (see paragraph 34 above) the relevant product was CBD oil which was agreed to have a THC content of less than 0.2%. The factual context of each of those cases was therefore very different from the facts of the present case, concerning the importation of specific quantities of plant material coming within the statutory definition of cannabis.[63]We therefore think it very regrettable that the parties in Margiotta did not bring the decision in Bogusas (see paragraph 43 above) to the attention of the court. True it is that that decision, reached by a court in another jurisdiction, was not binding on the court in Margiotta. For our part, however, we regard the judgment in Bogusas as providing very strong support for the view that the importation and sale of cannabis did not engage arts. 34 and 36. Bogusas emphasises the principle in Josemans, a decision which was mentioned only briefly in Margiotta at [56] when considering BS, CA. Had Bogusas been cited, and the points of principle raised by it argued more fully, it seems to us that this court in Margiotta may well have reached a different conclusion.[64]It is not necessary for us to reach any concluded decision as to whether the decision in Margiotta can, strictly, be regarded as reached per incuriam on the basis of the court’s failure to consider a judgment from another jurisdiction. This is because the court in Margiotta itself made clear that it was a decision on the facts found by the judge in that case, in circumstances where the evidence as to the facts was less than satisfactory.[65]A key feature of the facts found in that case was that the THC content of the plant material concerned was less than 0.2%. It followed that, on the court’s conclusions as to the applicable law, the defendants had not been shown to have committed any crime. But here, the appellant cannot point to any evidence that the plant material he imported had a THC content less than 0.2%. He asserted that it did, but there was no admissible evidence to that effect and the prosecution conceded only that the THC content was less than 1%. Because of the appellant’s guilty pleas, no further evidence was adduced by either party; and no application to adduce fresh evidence was made to this court. It follows that Margiotta can, and in our view must, be distinguished on its facts. For that reason alone, the appellant cannot be assisted by the decision in Margiotta, quite apart from our concern that Bogusas was not cited to the court in Margiotta. The appellant’s reliance on Margiotta depends on a THC level which was proved in that case, but not in this. His principal argument therefore fails.[66]In relation to counts 3 and 4, it follows from what we have said in paragraph 61 above, that the relevant importations were made after arts. 34 and 36 had ceased to have direct effect in this jurisdiction, and the appellant therefore cannot be assisted by reliance on those articles.[67]Turning to the appellant’s submissions that his guilty pleas were vitiated by incorrect or insufficient advice, we begin by expressing our thanks to Mr Normanton for the very considerable efforts he made to assist the court. We are conscious that in circumstances such as these, where criticisms are made of previous legal representatives, it can be a time-consuming and difficult exercise for those representatives to provide a detailed account of instructions received and advice given a significant time ago. We are also conscious that there is no public funding for such an exercise. The court is therefore always grateful for the assistance it receives.[68]We deprecate the attempt initially made by the appellant to blame Mr Normanton for his own decision to enter guilty pleas. We think it telling that, on appeal, that attempt was abandoned; and that although submissions were made about “nuanced” reasons why different advice should have been given, no application was made for Mr Normanton to be cross-examined so that he could respond to those points. We regard grounds 2 and 3 as being wholly without merit, for the following reasons.[69]First, as is now accepted, Mr Normanton advised the appellant perfectly properly about all matters other than the point which was raised in Margiotta. Mr Normanton is not to be criticised for failing, in the circumstances of this case, to foresee that point.[70]Secondly, there is no doubt that the appellant was aware that it was open to him to advance either or both of the defences which it is now said would have succeeded, but that he faced the difficulty of the clear warning given by PC Hemns’ email.[71]Thirdly, if the point which was argued in Margiotta had been present to anyone’s mind in November 2022 (when the guilty pleas were entered), research into it would not of course have led to Margiotta, because that case had not then been concluded in the Crown Court. On the contrary, it would have led to Bogusas, which could not have been regarded as an encouragement to the appellant to argue the point.[72]Fourthly, the appellant was understandably anxious to avoid the risk of conviction and of a sentence of immediate imprisonment. He therefore positively wanted to avoid the contested trial for which Mr Normanton was prepared, and which would have begun if the appellant had not entered his guilty pleas. Although the appellant asserts that his researches at the time caused him to believe that others were selling similar products and that PC Hemns was therefore expressing “a completely minority view”, it is not difficult to see why he was unwilling to contest a trial on that basis. He must have known that, if he gave evidence of his claimed belief that he was acting lawfully, he would have been severely tested in cross-examination.[73]Fifthly, even if (hypothetically) Margiotta had already been decided, and the appellant had wanted to maintain his not guilty pleas and argue the same point, the prosecution would in all probability have carried out more detailed testing of samples of the seized material, and the appellant was therefore at risk of there being clear evidence of a THC content of between 0.2% and 1.00%. True it is that further testing might have provided support for a Margiotta argument; but it is impossible to say that his defence would probably have succeeded. As it is, the effect of his guilty pleas was that no further testing was necessary and the samples were destroyed within a short time after the sentencing hearing.[74]We reject the submission that the guilty pleas were equivocal. They were not. Having been advised, the appellant chose to abandon any possible defence and to enter guilty pleas, and he did so without any qualification. He wished to be, and in due course was, sentenced on a particular basis; but that did not render his pleas equivocal. Neither his legal representatives nor the judge were under any obligation to treat the basis of plea as a reason for not accepting the guilty pleas; and – importantly – the appellant did not want them to do so.[75]We also reject the submission that the appellant should have been given more encouraging advice as to the strength of the defences which were open to him. For the reasons we have given, he could not properly have been advised that either defence would probably succeed, and his reasons for wanting to avoid a trial would still have existed. He has therefore suffered no injustice at all, let alone the clear injustice required by the principle in Boal.[76]As to ground 4, we make the initial observation that, as Mr Ray KC rightly recognised, this too is an argument which will not be available in future, as arts. 34 and 36 no longer have direct effect in this country. But even at the time of the appellant’s guilty pleas, it follows from what we have said above that the law, though no doubt unwelcome to the appellant, was not unclear. The importation, possession and supply of cannabis were prohibited by the MDA 1971. That Act clearly defines what cannabis is, in terms which do not depend on THC being present at a particular level (see paragraph 20 above). The appellant now accepts that the herbal material which he imported was cannabis. The appellant was expressly warned that he appeared to be selling products covered by the Act. Instead of seeking further legal advice, or commissioning specific testing of the material he was importing, or applying for a licence, he carried on his business. He did not proceed on the basis that the law was uncertain: he decided that the law was clearly in his favour, and took it upon himself to dismiss PC Hemns as “not knowing what he was talking about”.[77]It was for those reasons that we rejected each of the grounds of appeal and dismissed the appeal.