PROVING SUPPLY OF CONTROLLED DRUG

Court Of Appeal, Criminal Division, Regina v Bett Before Lord Justice
Mantell, Mr Justice Gray and Judge David Clarke, QC
[Judgment October 16]

On a charge of permitting premises to be used for supplying a controlled
drug, it was not necessary for the Crown to prove more than knowledge of
the supply of a controlled drug, even where the particular drug was specified.

The Court of Appeal, Criminal Division, so held in a reserved judgment
dismissing an appeal by Robert Adrian Bett against his conviction on April
2, 1998 at Lewes Crown Court (Judge Scott-Gall and a jury) of four counts
of permitting premises to be used for the supply of cocaine, ecstasy,
cannabis and amphetamine respectively, for which he was sentenced to a
total of three and a half years imprisonment.

Mr Julian Woodbridge, assigned by the Registrar of Criminal Appeals, for
the appellant; Mr Martin Field for the Crown.

LORD JUSTICE MANTELL, giving the judgment of the court, said that the
appellant was the licensee and manager of a public house in Eastbourne.

He was charged with permitting those premises to be used for supplying a
controlled drug, contrary to section 8(b) of the Misuse of Drugs Act 1971.

The four counts on the indictment were similar in form save that count 1
related to cocaine, count 2 to ecstasy, count 3 to cannabis and count 4 to
amphetamine.

In summing up to the jury the judge made it plain that in each case the
prosecution had to prove that the appellant knowingly permitted the
premises to be used for the supply of a controlled drug, but that it was
not necessary to prove that he knew the particular identity and class of
drug that was in fact being supplied before they could convict.

Mr Woodbridge submitted that that direction was wrong.

Section 8(a) and (b) spoke only of controlled drugs, in contrast to 8(c)
and (d) which nominated the particular drug to which the offence related.
On the face of it, therefore, an indictment charging an offence under
section 8(a) or 8(b) in relation to a controlled drug without nominating
the particular drug involved would seem to be unexceptionable.

However, as Mr Woodbridge pointed out, the penalty might vary according to
the classification of the drug involved and he submitted therefore that the
naming of the particular drug was a necessary averment in the charge.

Although it was unnecessary for present purposes for their Lordships to
pronounce on the matter, as counts 1 to 4 did identify the particular drug,
that submission appeared to have powerful support from cases such as R v
Courtie ([1984] AC 463) and R v Shivpuri ([1987] 1 AC 1).

Mr Woodbridge then submitted that if the nomination of the particular drug
was a necessary factual ingredient of the offence so must be that the
prosecution had to prove that the appellant knew not only that controlled
drugs were being supplied but also in relation to any particular count that
it was the drug specified.

And also, if Parliament had intended otherwise it would have treated
offences under section 8 as it had offences of supply, production,
possession, etc by bringing them within the purview of section 28 of the
Act which made it plain that in relation to the offences mentioned it was
no defence that the accused did not know the nature of the particular drug
involved provided always that he knew that the substance was a controlled
drug.

To their Lordships' way of thinking neither argument was well founded.

In the first place there were and had been many examples of offences where
powers of sentence were linked to proof of some factual ingredient of which
it was not necessary for the defendant to have knowledge: see, for example,
section 37(3) and column 3 of Schedule 2 to the Sexual Offences Act 1956.

As to the second argument, there was no doubt that Mr Field was right in
that section 28 of the 1971 Act was a direct response to the decision of
the House of Lords in R v Warner ([1969] 2 AC 256) which, without the
relief offered by section 28, would have rendered absolute the offences to
which that section did apply.

Such relief was not necessary in the case of importation offences in which
"knowingly" appeared, R v Hussain ([1969] 2 QB 567) having already
established that the only mens rea necessary for proof of any such offence
was knowledge that the goods were subject to a prohibition on importation.

Similarly, it seemed to their Lordships, that it was not necessary to
provide relief by way of section 28(3) for offences under section 8 because
that section also included the word "knowingly".

Accordingly, the trial judge's direction was right.

Were it to have been held otherwise, not only would the prosecution of such
offences prove impossible in many cases but it would result in the
anomalous position that the actual supplier might be convicted without
knowledge of the particular drug which was being supplied whereas the
occupier of premises where the supply was taking place could only be
convicted if he knew not only that a controlled drug was being supplied but
also the nature of the substance involved.

Checked-by: Pat Dolan