R v Hussain (Shabbir); [2010] WLR (D) 22

CRIME — Misuse of drugs — Extraterritorial effect — Possession of controlled drugs with intent to supply — Whether offence committed if supply intended to take place outside jurisdiction — Misuse of Drugs Act 1971, ss 4(1), 5(3)

R v Hussain (Shabbir)

[2010] WLR (D) 22

CA: Laws, Beatson, Blake JJ: 28 January 2010

A possessor of drugs did not commit an offence contrary to ss 4(1) and 5(3) of the Misuse of Drugs Act 1971 if he intended to supply the drugs outside the jurisdiction.

The Court of Appeal (Criminal Division) so held when allowing an appeal by Shabbir Hussain against his conviction on 4 June 2008 at the Crown Court at Kingston-upon-Thames, before Judge Barnes and a jury, of five counts of possessing a controlled class C drug with intent to supply. He was also convicted of seven offences of evading the prohibition on the unauthorised use of a trademark in relation to goods, but he did not appeal against those convictions.

LAWS LJ, giving the judgment of the court, said that the appellant ran a business from his home, purchasing and selling medicines. His premises were searched by officers of the Medicines and Healthcare Products Regulatory Agency who found quantities of class C drugs and counterfeit medicines for which the appellant did not have the required Home Office licence for the purpose of possessing, supplying, importing or exporting. The Crown’s case was that the appellant was running a regular business in the purchase and sale of class C drugs. The appellant’s defence was that he had never knowingly possessed class C drugs, save for those charged in counts 2, 3 and 6 which he did not realise were classified. He submitted that on the facts his case contemplated that there would be two transfers of the drugs: (1) the transfer to the courier and (2) the transfer by the courier to a customer abroad. He argued that the first transfer would not amount to a supply at all within the meaning of the 1971 Act (see R v Maginnis [1987] AC 303, 309, 313) and the second transfer from courier to customer abroad, while amounting to a supply, would not be in contravention of s 4(1) of the 1971 Act because that provision was of territorial effect within the United Kingdom only (see Seymour v The Queen [2008] 1 AC 713). Their Lordships concluded that the prospective transfer to a courier was not a statutory supply because the essence of a supply on Lord Keith of Kinkel’s reasoning in R v Maginnis was that “the transfer must be for the purposes of the transferee”. As for the second transfer, to the customer abroad, there could be no basis for not applying the reasoning in Seymour v The Queen to the present case. Accordingly, if the intention might have been to supply customers outside the jurisdiction no offence such as those charged could be committed. The trial judge did not direct the jury that if they concluded that the drugs might have been intended for foreign customers that would not be a supply within the 1971 Act. If the jury had convicted the appellant while accepting that that was what might have happened the convictions were unsafe because they were in effect convictions of an offence not known to the law.

Appearances: Christopher Draycott (assigned by the Registrar of Criminal Appeals) for the appellant; Andrew Bird and Fiona Jackson (instructed by Solicitor, Department of Work and Pensions and Department of Health) for the Crown.

Reported by: Clare Barsby, barrister.