R v Maginnis [1987] UKHL 4

House of Lords
Between
RAppellantMaginnisRespondent
Before
Lord Keith of Kinkel
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 drugif:-(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 myunderstanding, 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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