No: 98/2766/Y

IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
                               Royal Courts of Justice
                               The Strand
                               London WC2
 
                               Friday 16th October 1998
 
                    B E F O R E :
 
                LORD JUSTICE MANTELL

                   MR JUSTICE GRAY
 
                         and

             THE RECORDER OF LIVERPOOL
          HIS HONOUR JUDGE DAVID CLARKE QC
(Acting as a Judge of the Court of Appeal Criminal Division)
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                     R E G I N A

                       ‑ v ‑

                 ROBERT ADRIAN BETT
 
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   Computer Aided Transcript of the Stenograph Notes of
           Smith Bernal Reporting Limited
          180 Fleet Street, London EC4A 2HD
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MR J WOODBRIDGE appeared on behalf of the APPELLANT
MR M FIELD (MR K HADRILL) appeared on behalf of the CROWN
 
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                      JUDGMENT
             (As approved by the Court)
 
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                    Crown Copyright
                               Friday 16th October 1998
LORD JUSTICE MANTELL:  Others matters are raised, but the important question in this appeal is whether on a charge of permitting premises to be used for supplying a controlled drug it is necessary for the prosecution to prove that the defendant not only knew that the supply or attempted supply of a controlled drug was taking place but also the nature of the particular drug involved.
      It comes to be asked in the following circumstances.
      The appellant was the licensee and manager of the Inn on the Track public house in Eastbourne.  On no fewer than 25 occasions between 19th July and 11th August 1996 undercover police officers who visited the premises were able to purchase cocaine, ecstasy, amphetamine and cannabis.  The main suppliers were Gary Wheeler, Ian Palmer and Benjamin West.  Some of the drugs were stashed in a hole in the ceiling of the downstairs pool room.  On 10th August there was an official raid.  Two wraps of amphetamine were recovered from the hole in the ceiling of the pool room, a bag of cocaine, a wrap of cocaine and a bag containing a spoon, two straws, two blades and a mirror were found under the pumps on the staff side of the bar; and a quantity of empty wraps with traces of cocaine were found behind some plasterboard in the locked ground floor storeroom. On arrest and in interview the appellant admitted knowing Wheeler, Palmer and West, whom he described as "regulars", but denied the allegation that drugs were being supplied on his premises save that he said, "I'm not going to say that I haven't seen it going on but I don't want to say any more until my solicitor is here. I haven't seen anything."  The appellant was charged with permitting the premises to be used for the supply of controlled drugs and in due course he was jointly indicted with Wheeler, Palmer and West.
      The appellant faced five counts, four of permitting the premises to be used for the supply of controlled drugs and a fifth of permitting premises to be used for smoking cannabis.  He pleaded not guilty.  The others pleaded guilty to various charges of supplying drugs and were put back for sentence.  In the event the appellant was acquitted of the fifth count, that is permitting the premises to be used for the smoking of cannabis, but the jury failed to agree on the others.  He was re‑tried on those four counts between 23rd March and 2nd April 1998 at Lewes Crown Court before His Honour Judge Scott‑Gall and convicted on each.  He was sentenced to a total of 3½ years' imprisonment.  He now appeals against conviction and sentence with leave of the single judge.
     Before turning to the grounds of appeal it might be helpful if we were to set out a little more of the background.
    During the course of the first trial, which was not presided over by His Honour Judge Scott‑Gall, counsel objected to evidence of the finding of drugs on 10th August being led before the jury.  He submitted that there was no evidence that all of the drugs seized had been supplied on the premises.  The judge ruled as follows: "The amount of drugs found on the premises on the day of the police raid seems to be relevant to the issues, admissible, and the jury in due course will be directed that of course they must take into account that if you raid any pub these days in this country it may well be some cannabis will be found on some customers. They are certainly entitled to consider the amount of the drugs found in this particular pub." 
    At another stage during the first trial counsel for the appellant made a further submission that evidence of a poster displayed in the premises should also be excluded.  We have not seen the poster itself but we are told that it was a St Valentine's Day poster which made reference to the drug "smack" or "heroin", and smack or heroin not being a drug referred to in any of the charges it was submitted that the evidence was irrelevant and if not irrelevant more prejudicial than probative.  The judge said that he was going to allow the evidence to go in and,
"It was clearly admissible and it is probative to an extent." 
    Both the above rulings carried through into the second trial by virtue of section 40 of the Criminal Investigations and Procedure Act 1996 where evidence  about those matters was duly given as it had been in the first trial.
    Now it seems that the appellant has convictions for possessing cannabis and for theft.  Both were stale, being in 1975 and 1979 respectively, and each had attracted a modest fine.  During the retrial and before the appellant gave evidence counsel invited the judge to direct the jury that the defendant was a man of good character and, implicitly at any rate, to give the jury the usual good character direction.  The judge declined the invitation.  He said:
"It seems to me these convictions are relevant and he was an adult in his thirties when he committed an act of dishonesty and was convicted of possessing a controlled drug.  It seems to me, subject to anything Mr Woodbridge might say in response, the jury would be misled to be told he had no relevant convictions and to be directed that he was to be treated on both limbs as a man of good character.  It seems to me that would be wrong.  There are formulae.  A formula is for the jury to be told that he had two very stale convictions in the 1970's and the judge can say to the jury: 'Well, ignore those,' and you leave it at that and he has, in effect, confessed and avoided his past, or one says nothing, or one puts them in their fullness.
 
Mr Woodbridge [counsel for the appellant at the trial and on the appeal], it is a matter for you, but in the exercise of my discretion in this case, given these convictions, I do not think it would be right for the jury to have a full character direction." 
    Now each of the four counts was similar in form save that count 1 related to cocaine, count 2 related to ecstasy, count 3 related to cannabis and count 4 related  to amphetamine.  We shall recite count 1 as an example,
 
    STATEMENT OF OFFENCE
PERMITTING PREMISES TO BE USED FOR SUPPLYING A CONTROLLED DRUG OF CLASS A contrary to section 8(b) of the Misuse of  Drugs Act 1971.
 
    PARTICULARS OF OFFENCE
ROBERT ADRIAN BETT between the 19th day of July 1996 and the 11th day of August 1996 being concerned in the management of premises at Inn on the Track, Eastbourne Railway Station, Terminus Road, Eastbourne, East Sussex knowingly permitted or suffered to take place on the said premises the supplying of a controlled drug of Class A namely cocaine to another in contravention of section 4(1) of the Misuse of Drugs Act 1971.
    In summing up the judge gave a very full direction as to what had to be proved by the prosecution in order to sustain each of those charges.  He 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.  However with regard to the particular drug specified in each of the four counts he said this:
"The Crown, as a matter of law, do not have to prove that the defendant knew in fact that cocaine was being  supplied as reflected in count 1, ecstasy as reflected in count 2, cannabis and cannabis resin as reflected in count 3, and amphetamine, as reflected in count 4.  The activity prohibited by the Act is 'knowingly permitting or suffering  the supplying of a controlled drug on premises of which the defendant is concerned in the management'.  It is not necessary for the Crown to prove that the defendant knew the particular identity and class of drug that was in fact being supplied before you can convict." 
    Against that background Mr Woodbridge for the appellant submits four grounds in support of the appeal against conviction.  The first is that in the passage which we have just quoted the judge misdirected the jury in law as to the necessary mens rea.  He submits that the jury should have been directed that it was necessary for the prosecution to prove knowledge of the particular drug referred to in the count.  His second ground relates to the ruling by the judge in the first trial that the prosecution was entitled to lead evidence of the drugs found at the time of the raid.  He makes a similar submission in his third ground in relation to the St Valentine's Day poster and his fourth ground arises out of His Honour Judge Scott‑Gall's ruling in relation to character.
    We take each of those four grounds in turn.
 
Ground 1 ‑ State of mind
    As Lord Bridge explained in R v Shivpuri [1987] 1 AC  1 at p.16:
"The Misuse of Drugs Act 1971 repealed the earlier legislation and enacted a new and comprehensive code intended, one may reasonably suppose, to arm the courts with all the criminal sanctions they would need to counter the growing drugs problem." 
Section 8 brought together a number of offences capable of being committed by the occupier or manager of premises and somewhat broadened their scope.  The previous history of those offences is of academic interest only. So far as is material the section reads:
"A person commits an offence if, being the occupier or concerned in the management of any premises, he knowingly permits or suffers any of the following activities to take place on those premises, that is to say ‑ ...(b) supplying or attempting to supply a controlled drug to another in contravention of section 4(1) of this Act, or offering to supply a controlled drug to another in contravention of section 4(1);" 
Previously by sections 5(b) and 8(d) of the Dangerous Drugs Act 1965 it had been an offence to permit premises to be used for dealing in cannabis or cannabis resin in the one case and opium in the other.  In other words under each of those two sections the particular drug was specified.  The other notable difference between section 8 of the 1971 Act and sections 5 and 8 of the 1965 Act was the introduction of the qualifying adverb "knowingly" and the alternative "suffers" to "permits".  These additions can only have been included for avoidance of doubt because this Court had held in the case of  R v Souter (1971) 55 Cr App R 403 that under the Dangerous Drugs Act "permitting" connotes knowledge and in R v Thomas & Thomson (1976) 63 Cr App R 65 that "suffers" adds nothing to "permits" as each carries the same meaning.
    Section 8(b) speaks only of controlled drugs as does 8(a) in relation to producing or attempting to produce a controlled drug.  In that, (a) and (b) are to be contrasted with (c) and (d) which nominate the particular drug to which the offence relates.  Therefore on the face of it an indictment charging an offence under 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 for the appellant points out, the penalty may vary according to the classification of the drug involved: see section 25 and Schedule 4 of the 1971 Act.  He submits, therefore, that the naming of the particular drug is a necessary averment in the charge.  Though it is unnecessary for present purposes to pronounce on the matter, as counts 1‑4 did indeed identify the particular drug, the submission would appear to have powerful support.
      In R v Courtie [1984] AC 463 the House of Lords had to consider the framing of an indictment in a case  of buggery where the prescribed punishment differed depending on the particular factual ingredients.  It was put thus by Lord Diplock at p.471:
"Where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another.  ...  The statement of offence in the instant case may therefore just pass muster, provided that it is supplemented by adequate particulars of offence which give to Courtie reasonable information as to which of the particular species of offences falling within the genus buggery, was the offence with which he was charged." 
Shivpuri was a case arising out of the importation of drugs in relation to which the maximum sentence varied according to the classification of the drugs involved. After pointing that out, Lord Bridge said at p.15:
"It follows from this, applying the reasoning in R v Courtie that each of the three distinct offences has different ingredients and, leaving aside considerations of impossibility arising under the Criminal Attempts Act 1981, part of the actus reus of the offence which must be proved in each case is the importation, actual or attempted, of goods which were in fact of the appropriate category to sustain the offence charged.  So far the argument [we interpose as in the instant case] seems to be irrefutable and is not challenged by the Crown." 
So, Mr Woodbridge proceeds, if the nomination of the  particular drug is a necessary factual ingredient of the offence so it must be that the prosecution have 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.  In this he is rehearsing the argument advanced in Shivpuri.  We return to Lord Bridge at p.15:
"It is the next step in the argument which is the critical one.  If each of the three offences involves proof of a different element as part of the actus reus, that is importation of the appropriate category of prohibited goods, it follows, so it is submitted, that 'knowingly' wherever it appears in section 170(1) and (2) of the Act of 1979 connotes a corresponding mens rea, that is, knowledge of the importation of goods in the appropriate category.  I recognise the force of this submission.  The point may be put in the form of a rhetorical question.  Can it be supposed that Parliament intended that the mens rea appropriate to an offence carrying a maximum sentence of two years' imprisonment should equally be sufficient to sustain a conviction for an offence carrying a maximum sentence of 14 years' imprisonment?" 
More than that Mr Woodbridge submits that had Parliament intended otherwise it would have treated offences under section 8 as it has done in relation to offences of supply, production, possession, possession with intent to supply, cultivation, and the prohibition of certain activities relating to opium, that is bring them within the purview of section 28 of the Act which makes it plain that in relation to the offences mentioned it is 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 our way of thinking neither argument is well founded.  In the first place there are and have been many examples of offences where powers of sentence are linked to proof of some factual ingredient of which it is not necessary for the defendant to have knowledge. Examples may be found in certain sexual cases ‑ see section 37(3) and Schedule 2 column 3 of the Sexual Offences Act 1956 and, if another is needed, Shivpuri's case itself.  As to the second argument we have no doubt that Mr Field who appears for the respondent is right in that section 28 in the 1971 Act is a direct response to the decision of the House of Lords in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 which, without the relief offered by section 28, would have rendered absolute the offences to which that section does apply.  Such relief was not necessary in the case of importation offences in which "knowingly" appears in the statute for the reason given by Lord Bridge in Shivpuri at p.17 of his speech, namely that R v Hussain [1969] 2 QB 567 had 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 seems to us, that it was not necessary to provide relief by way of section 28(3)  or any other provision to like effect for offences under section 8 because of the decision in Souter that the word "permits" connotes "knowledge" and because section 8 itself includes the word "knowingly".
    So we hold that on a charge laid under section 8(b), even where the particular drug is specified, it is not necessary for the Crown to prove more than knowledge of the supply of a controlled drug.  It follows that we approve the direction which the learned judge gave in this case.  Were we to have held otherwise, not only would the prosecution of such offences prove impossible in many cases but it would result in what Mr Woodbridge fairly concedes to be 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.
 
Ground 2
    The judge was quite clearly right.  Evidence of the finding of drugs during the raid on 10th August was clearly material from which the jury could infer that the supply of drugs had been or was about to take place.  The matter was left to the jury as appears at p.16 of the transcript:
"If in your judgement these facts are no more than an unfortunate coincidence and therefore of no relevance to the charges the defendant faces, then you will pay no attention to this evidence.  However, if you are satisfied that such possession of controlled drugs at this time and at this place was not an unfortunate coincidence and that drugs were abandoned or jettisoned when the police raided the Inn on the Track by others who in fact were not arrested, those facts can be supportive evidence that drugs were being supplied on the premises to persons in addition to the witnesses who have given evidence of the purchases made." 
That, in our view, was a perfectly proper and fair direction and illustrates the relevance of the evidence to the charges which the appellant faced.
 
Ground 3
    This concerns the St Valentine's Day poster.  As we have said the poster has not been produced.  We rely on a description in Mr Woodbridge's advice.  It was headed "St Val's Day" "Kurt and Courtney Night".  It depicted the 'pop' star Kurt Cobain holding a smoking gun, his girlfriend Courtney Love accusing him of being a "smack‑head" and a baby saying "give her a fix mother fucker".  As we have said "smack" is slang for heroin. No charge related to heroin.  We cannot see the relevance of the poster to any issue which the jury had to decide.  It ought not to have been admitted.  However,  we are at a loss to understand how the admission of the evidence could in any way have prejudiced the appellant. It might have led the jury to deplore the taste of whoever had supplied the poster or even of the appellant in allowing it to remain, but its admission does not seem to us to have been capable of influencing the jury in any way which might lead to the conclusion that the convictions were unsafe.
 
Ground 4
    This concerns the question of the defendant's character.  We have already recited the material part of the judge's ruling.  It does not seem to us that the judge went outside the proper exercise of his discretion. True it is that another judge might have dealt with the matter differently.  However, that provides no arguable ground of appeal and certainly does not lead us to think that this conviction is unsafe.
    For all those reasons the appeal against conviction will stand dismissed.
 
Sentence
    The longest term of imprisonment imposed on any of the others involved in actual supply was 2 years' imprisonment.  That related to the supply of Class A  drugs and it must be supposed that the supplier knew precisely what it was in which he was dealing.  However the co‑defendants had pleaded guilty at the plea and directions hearing.
    The appellant is now 51 years of age and fell to be treated for the purposes of sentence as a man of good character.  There is no doubt that he will never work as a publican again or hold any form of Justices licence. On the other hand, as the judge remarked in passing sentence, the appellant had shown little remorse and what he had permitted to happen encouraged a drug culture to flourish with all of the dangers inherent in the supply of ecstasy and cocaine.  He also took into account as he was entitled to, that the appellant was in a position of trust and had in effect provided a haven for drug dealers.
    However, the judge did not reach or at least express a conclusion as to whether the appellant knew that the Class A drugs, that is cocaine and ecstasy, were being supplied.  Given that and the fact that we have held that it was not necessary for the prosecution to prove such knowledge, it seems to us that the sentences of 3½ years imposed on counts 1 and 2 are longer than necessary.  We propose in each case to substitute sentences of 2 years, those sentences as with the others  to run concurrently.  To that extent and to that extent only the appeal against sentence is allowed.
The Court certified a point of law of general public importance but refused an application for leave to appeal to the House of Lords.
 
            CERTIFICATION OF POINT OF LAW
 
Does a person commit an offence under section 8(b) of the Misuse of Drugs Act 1971 if he knowingly permits or suffers the supply, the attempt to supply or offer to supply a controlled drug in circumstances where he does not know the specific drug or class of drug alleged to be the subject of the offence but only that it was a controlled drug?
 
                LEGAL AID
 
The Court granted legal aid for junior counsel and solicitors for the purposes of an application to the House of Lords for leave to appeal to that House; Queen's Counsel and junior counsel and solicitors if leave to appeal is granted by that House.