No: 201003569/C3 
Neutral Citation Number: [2011] EWCA Crim 2035
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 7 July 2011
 
B e f o r e:

LORD JUSTICE HOOPER 

MR JUSTICE RAMSEY 
 
HIS HONOUR JUDGE THORNTON QC
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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 R E G I N A 

v 

RICHARD PAUL HENDERSON
 
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Mr R Patton appeared on behalf of the Appellant

Mr J Elvidge QC appeared on behalf of the Crown
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J U D G M E N T
1.	JUDGE THORNTON:  On 3 June 2010 the appellant, Richard Henderson, was convicted by a jury at Teesside Crown Court of four offences: on count 3 he was convicted of incitement to cultivate cannabis; on counts 4 and 5 incitement to produce a controlled drug of class A (mescaline on count 4 and psilocin, magic mushrooms, in count 5); and count 8 sale of a medicinal product without marketing authorisation.  The appellant was convicted by the jury on four other counts.  
2.	It is of particular note that each count of which he was convicted charged him in the particulars of offence with acting jointly with Steven Mark Henderson, the appellant's brother, who we shall refer to as the brother.  The brother absconded before trial and has not been apprehended since.  The prosecution alleged that the brother was the organiser and prime mover of these offences and that the appellant was a willing, knowing assistant.
3.	The appellant was sentenced on 29 June 2010 to a total of nine months' imprisonment, suspended for two years, with requirements of unpaid work of 150 hours and a supervision order for two years.  He was ordered to pay £3,000 towards the cost of the prosecution.
4.	Leave to appeal was granted by the Full Court on 9 February 2011.
5.	These are the facts of the case.  The brother set up a business involving two companies called Special Salvia Limited and Deva Ethnobotanicals Limited (we shall refer to them as Salvia and Deva) for the sale of various products, including legitimate herbal products, but also, said the prosecution, controlled drugs.  Each company had a website to advertise the products and sell them to the customer.  On count 3, an incitement charge, it was alleged that the business sold cannabis seeds and related products for cultivation, including special lighting manuals, inciting customers to buy and produce by advertising and promoting the products on the website.  For example, Deva's website advertised a number of different cannabis seeds, including Hash Passion, Original Afghani No 1 and Original Skunk No 1.  Another seed, Original Haze, is described as "Variety: pure sativa;  Harvest Date: Late December flowering period; THC content 10 to 20 percent.  Characteristics: renowned taste and effect, excellent breeding parent.  Price £9.99.  Add to cart." Deva's website also sold 600 watt grow lights and manuals, such as Indoor Marijuana Horticulture, as well as the Mushroom Cultivator, Psilobycin Magic Mushroom Growers Guide and Growing Hallucinogens.  It is not difficult to imagine what sort of business this was.
6.	The appellant's claims in evidence that the products he sold were just for herbarium specimen collectors and were not for human consumption must have been roundly rejected.
7.	Count 4, also an incitement charge, related to mescaline, a class A drug.  It was alleged that the business sold a cactus known as San Pedro or the Peruvian Torch, from which mescaline could be produced.  Count 5 alleged the same also incitement, but this time in relation to psilocin, of another class A drug, otherwise known as magic mushrooms.  It was alleged that the business sold kits for producing these mushrooms.
8.	When the police searched the business premises at Unit 6, Bon Lea Trading Estate in Thornaby, Teesside they found a factory warehouse for the business.  Many products and items were seized.  Admission number 6 lists many items seized, including growing kits in fridge, pills and tablets, some found to contain BZP, syringes, bags of powder, a product catalogue, labels, plastic packaging, scales and many other items.  The photographs of unit 6 show much more.  They display a substantial business operation at work.
9.	The appellant's case was that he had no knowledge of the business trading in any illegal products.  He had no involvement in any of the offences charged.  If this was a business run by his brother in part to incite cultivation and production of illegal drugs, he had no knowing part in that illegality.  He was no more than a packer and general factotum who had no knowledge of any crimes being committed.  Without doubt the jury must have rejected that defence and found that the appellant was knowingly involved with the illegal side of this business, involved in inciting the purchase of products which could be used to produce controlled drugs, counts 3 to 5.  
10.	The appellant had submitted in writing through counsel that there was insufficient evidence for the jury to have come to that conclusion.  We disagree.  There was ample evidence against the appellant on all four charges.  There was general evidence showing the appellant's involvement in the business.  He had funded the business at the start.  He owned 10 per cent of Deva; his brother owned the rest.  He was company secretary and a director for both companies.  He signed off some accounts of the business.  He attended Unit 6, the factory warehouse, daily.  He was the only person present when the police raided the Unit 6 premises in January 2008.  Photographs in the jury bundle showed the extensive range of stored products, including seeds, San Pedro, Salvia Joint, Club Pills, labels, packaging, scales, temperature control units and much more.  Large quantities of products, some from Peru, had clearly been delivered there in the name of Special Salvia Limited.
11.	The appellant admitted selling "lots of different products" through the websites.  He accepted that he was trusted by his brother and that they had worked together for five years.  He knew that his brother had been cautioned by the Medicines and Health Care Regulatory Authority ("MHRA")  in 2006 and that his brother had been to prison for trafficking in cannabis and ecstasy.
12.	On specific counts there is also the following evidence.  On count 3, in relation to cannabis, which the appellant said he knew nothing about growing, the appellant e‑mailed an Indian customer to whom they had difficulties supplying lights to suggest that "Low Ryder No 2 are excellent and grow outside without artificial light".
13.	On count 4, mescaline, while the Deva website advised how to avoid "stomach pains and vomiting" from San Pedro, a number of e‑mails from the appellant showed that he knew this was for consumption.  For example, on 14 July 2004 in answer to a request from a customer, Fabio, who asked "How do I use the San Pedro sample?"  The appellant replied, "On an empty stomach and in the right frame of mind you need to swallow it i.e in a drink or a soup.  It's not a nice taste though!!! Enjoy."
14.	On count 5, psilocin, the appellant admitted that he sold magic mushroom kits which were put together for Deva and which could possibly produce psilocin.  
15.	We set out this evidence because, in our judgment, it provided a compelling case against the appellant on counts 3 to 5.  It tended to prove his knowing participation in the sale of illegal drugs and it tended to prove the element of the incitement by way of his knowing involvement in a carefully planned and coordinated scheme to advertise and promote these goods for sale.  For these reasons the trial judge was right to reject submissions of no case to answer.  The judge should have given his reasons for doing so, but had he done so there would have been ample material for his conclusion.  This ground of appeal therefore fails.  
16.	Count 8, a different charge, alleged that the business sold a medicinal product known as benzyl piperazine, or BZP, a synthetic drug component, without an appropriate marketing authorisation.  The prosecution proved the sale of BZP under the names Jax and Bolts by an undercover purchase in November 2007 of a pack of each from the website R18pills.uk, which is linked to the Deva website.  They were dispatched from a Teesside mail centre, which, it is accepted, can only mean from the factory premises at Unit 6 and sent to an address in the south of England.  Jax and Bolts are party pills, another category of product sold on the Salvia website as 'London Underground' party pills.  They are legal if sold with a marketing licence of which there was admittedly none here.
17.	The appellant knew that because he was present when his brother had been cautioned by the MHRA in 2006 for selling products containing BZP including Jax and Bolts.  At the time of the police raid in January 2008 a press notice was seen pinned to the wall in Unit 6 referring to BZP pills being illegal.  A copy of the formal caution was also seized from the premises.  The appellant seemed to be saying in evidence that he knew BZP products were being sold after the caution and he himself was involved in counting and checking them.  The appellant's claim at trial that he was selling these pills as plant food must also have been rejected.
18.	All of this was, in our judgment, potentially strong evidence against the appellant on count 8 but the appellant now makes two submissions.
19.	First, it is argued that the "sale" of these products was not contrary to regulation 7(4) of the Medicines for Human Use (Marketing Authorisation) Regulations 1994, as charged, because the sale was outside the United Kingdom.  The payment was in New Zealand dollars and to a New Zealand company.  Therefore, it is submitted, there was no need for a licence.
20.	There is no merit in this point.  The sale was in England.  The undercover customer ordered the products through an English Kingdom website, the Salvia website.  The products were dispatched, by inference, by the appellant from Unit 6.  They were received by the customer in the south of England.  Nothing could be more English.
21.	The only foreign aspect of the transaction was the payment in New Zealand dollars, the website having given the choice of NZ dollars, US dollars or pounds sterling.  Also, the payment was made by credit card to a New Zealand company, VS Sport of New Zealand.  This company had dealings with Saliva and acted apparently as an intermediary for payment.  That fact alone does not take this transaction outside the jurisdiction.  The transaction was the sale of the relevant medicinal product and the essence of that transaction was, without doubt, sale in England.  Even if the sale had been to a purchaser and recipient in New Zealand, which it was not, even if another company outside the jurisdiction was also involved in the sale, the sale in question would still have been carried out in England, by the appellant together with his brother selling the product through the English website and out of Unit 6.
22.	Secondly, it is submitted that the summing‑up on count 8 was defective in its direction.  We accept this submission.  The judge's directions at pages 45 to 46 are far from clear or complete.  Indeed, the prosecution accepts that the judge's broad brush approach may not have gone far enough.  
23.	In our judgment, the judge singularly failed to direct the jury what precisely had to be proved and what evidence there was on this count for their consideration.  After all, the sale of a medicinal product without marketing authorisation is not an everyday charge; the jury needed help.  But the judge did not sufficiently identify how the appellant was said to have participated in this offence and with what necessary state of mind and he did not tell the jury what specific or general evidence there was against him for them to consider.  We do not need to go further.  We shall quash this count, count 8, because the directions were inadequate.
24.	That takes us to the summing‑up in relation to the rest of the case.  As the Full Court granting leave explained, the most arguable grounds related to the judge's summing‑up.
25.	The appellant now argues a number of points.  He submits, ably and helpfully through Mr Patton of counsel, that the trial judge failed to direct the jury sufficiently clearly about: (1) the appellant's alleged joint involvement with his brother; and (2) the role of e‑mails in the case which were not attributed to the appellant as sender or receiver.  A further submission made is that (3) the judge failed to remind the jury of two witnesses, Mr Rhodes and Mr Charlett, as to how the company functioned.  
26.	It was the appellant's case at trial that whatever crimes were being committed by his brother, he, the appellant, had not taken part in any aspect of the business knowing that a crime was being committed.  He may have packed goods, which he now understands were illegal, he may have sold them to purchasers through the website, but he did not know what, if anything, was going on illegally.  In a not entirely clear defence statement the appellant made the assertion by way of denial of guilt that he was "employed to package and distribute legitimate herbal products to customers".  The appellant now submits that the judge failed to place the essence of the defence case in its context.  He failed to disentangle the case against the appellant from the case against the absent brother.  
27.	We do not agree.  We do agree that there were real shortcomings in this summing‑up.  All members of this court would like to state from the outset that they consider this summing‑up to be poor.  There is a complete lack of useful form or structure.  There is no attempt to help the jury by setting out at the beginning and in one place the necessary directions of law ‑‑ the jury's decisions to be made on the evidence alone, the burden and standard of proof, the effect of separate charges, the elements of the various offences, the nature of joint involvement, the central issues in the case and the defendant's good character.
28.	Such was the lack of organisation of the summing‑up, derived, no doubt, from a shortage of preparation and forethought, that the judge had to be reminded at the end that he had omitted the standard of proof.  Other omissions were pointed out to him.
29.	We do, therefore, agree that the summing‑up could have done more to focus upon the real issues in the case,  identifying them, explaining them and distinguishing the appellant from his brother.  The trial judge did not do that with great clarity.  As a result this appeal has had to take place.  It has been necessary to examine closely and at some length whether the judge did enough.  Our task has not been helped by what the respondent's counsel has described as a summing‑up "in a narrative form, a broad brush approach".  The discursive approach is rarely best.  A more constructive, formal approach would have been more helpful.  This was a case where steps to verdict in writing would have been invaluable.
30.	Nevertheless, looking closely at the detail of the summing‑up and then standing back to consider its broader impact, we have been persuaded in the end that this summing‑up, despite its considerable shortcomings, deals with the issues on counts 3 to 5 sufficiently so that these convictions are not unsafe.  The summing‑up could have been better but on the evidence the verdicts were inevitable.
31.	First of all, it must have been obvious to the jury that there was an important distinction between proof, on the one hand, that the business run by the brother was making illegal transactions and proof, on the other hand, that the appellant knew that and participated in them.  Apart from anything else, that was the whole thrust of the defence case, which Mr Patton no doubt emphasised repeatedly through cross‑examination of witnesses such as Mr Rhodes, through calling his client to give evidence and in his final speech.  The jury must have been entirely aware of the distinction.
32.	In essence, the real defence issue was very simple.  Accepting that the brother had apparently committed these offences, did the appellant knowingly take part in them?  The jury could have been in no doubt that that was the issue in the case.
33.	Secondly, what we find in the summing‑up, in different places but sufficiently well underlined, is that the judge did distinguish the different alleged roles of the two men.  He described the appellant's role as "helping his brother put his plans into effect because he really needed someone who was reliable back at base and whom he could trust", emphasising what he described as the appellant's "intention and knowledge in performing that particular activity" as being crucial to the case (page 20 line 14).  
34.	He then reminded the jury of the defence case:
"He says that he was but a receiver and despatcher of orders.  ... He was always reassured [by his brother] that all activities were entirely legal and effectively he has been an innocent dupe of his brother who has carried on business of his own really without the defendant in any way being involved or knowing the precise legality of what was and was not going on." (Page 21 line 1)  
And that he trusted him (page 21 line 9).
35.	He added to this later with these words:
"The defendant maintained in interview that he was little more than a receiver of orders ... bag man, porter, general gopher, one who just really performed the mechanical tasks without any question of his mind being activated in relation to them at all and in particular not being activated in the sense that he knew or suspected there was dealing in a controlled drug."  (Page 30 line 10).  
36.	He emphasised the issue of knowledge further (pages 33 line 18 and 35 line 23).  At page 37 line 3 the judge reminded the jury that if they think his account is or may be right they must acquit him. 
37.	In our judgment these passages correctly directed the jury to the real and simple issue they had to decide.  Crucially, they described the defence accurately. 
38.	Thirdly, when the judge addressed counts 3 to 5 at page 38 and referred again to there being joint charges (pages 40 line 5 and 41 line 11).  He reminded the jury that in the context of joint charges it was the appellant's defence that he had nothing to do with it, his mind never went with it and the responsibility for adverts and so on was not his responsibility.  The judge returned to emphasise that at page 52 line 8:
"He did not realise that anything illicit was going on and was not involved in anything that could remotely be called illegal. ...  If you think that what he is saying is or may be right ... well, he is entitled to be acquitted."
39.	That direction is correct.  
40.	Hence the respondent's counsel, for whose submissions we are very grateful, made the sensible point that the case did not require a very complicated direction on joint enterprise.  We agree.  Once the jury knew and understood that the absent brother had committed offences and that the sole issue was whether the appellant had joined in knowing he was involved in illegality the concept of joint enterprise became less significant so long as the appellant's role and his denials were clearly identified, and they were.  The appellant also had the benefit of his brother's absence.  He was able to lay the blame for these offences entirely on him with impunity.  
41.	As to e‑mails connected with the brother (or others) but not the appellant, the judge reminded the jury of Mr Patton's submissions to them that:
"... there is no indication and indeed no evidence that those particular e‑mails were seen by the present defendant ..."  (Page 42 line 18)
42.	It must have been obvious that the e‑mails of the business could prove illegality by the business and that the e‑mails of the appellant were capable of proving his guilt on specific counts.
43.	Looking, therefore, at all of these specific extracts from the summing‑up and at the broader picture, we have no doubt that the jury must have understood: (a) the appellant's defence of not participating knowingly in any illegality; (b) the distinction between the alleged roles of brother and appellant; (c) the need for the prosecution to prove, first, that there was illegality and, secondly, that the appellant was knowingly involved; (d) that if the appellant's denials were true, or may be true, they should acquit him; and (e) that the appellant was not responsible for e‑mails sent by someone else.  
44.	In the end, this was not a difficult case.  The illegality was clearly proved.  The sole issue for the jury was whether the appellant was knowingly involved.  That was both a matter of evidence and credibility.  The appellant put forward his defence in his own evidence but in finding him guilty the jury must have rejected it.  We find nothing in the directions on the appellant's knowing participation or on the separate issue of e‑mails which leads us to doubt the basis of the jury's verdicts on counts 3 to 5.  There is nothing in the summing‑up nor anything not in the summing‑up which leads us to doubt the route by which the jury must have reached their verdicts safely and securely.  
45.	Two further submissions were made by the appellant but we do not accept them.  The good character directions at pages 49 line 22 and 56 line 14 were sufficient.  The judge emphasised that the appellant's good character was of vital importance and dealt with both required limbs of credibility and propensity.  And we see nothing in the suggestion that the judge failed to remind the jury of the evidence of Mr Rhodes and Mr Charlett.  There are certainly references in the summing‑up to the evidence of Mr Rhodes, but, in any event, this is not a ground of any substance.
46.	For all these reasons we conclude that the convictions on counts 3, 4 and 5 are safe.  We do, however, quash the conviction and sentence on count 8.  To that extent this appeal against conviction is allowed.
47.	MR PATTON:  Can I correct one matter?  You made reference to the prosecution costs being £2,000.  In fact it was £3,000.  The second thing, can I raise the question of costs?  The appellant, who at the stage of being an applicant, was not in receipt of legal aid.  He had to fund the application for leave.  I was hoping to persuade your Lordships ‑‑ 
48.	LORD JUSTICE HOOPER:  He was given a representation order by the Full Court.
49.	MR PATTON:  For this hearing. 
50.	LORD JUSTICE HOOPER:  You are saying that he should have costs out of central funds.
51.	MR PATTON:  Taxed if not agreed in relation to the application. 
52.	LORD JUSTICE HOOPER:  Only in respect of count 8.  It could only be.
53.	MR PATTON:  Except he was granted leave in relation to counts 3, 4 and 5.  As this court has said this really did need to be ventilated. 
54.	LORD JUSTICE HOOPER:  When the costs order was made by the Court of Appeal, by the Full Court, making a representation order for you, did they give you a representation order covering that day and the preparation therefor? 
55.	MR PATTON:  No, from then on ‑‑ the position as I understand is that you are not entitled to ask for a legal aid order where there is an agreed fee for the application. 
56.	LORD JUSTICE HOOPER:  You are quite right.  I had forgotten that.  But normally costs out of central funds is where you succeed.
57.	MR PATTON:  He succeeded to the extent that he was given leave and he succeeded to the extent that he was partly successful here. 
58.	LORD JUSTICE HOOPER:  We will consider that application.  We will retire and consider that.  You don't have anything to say on this? 
59.	MR ELVIDGE:  We don't make an application for the costs on the basis that in part this appeal has succeeded. 
(Court Adjourned) 
60.	LORD JUSTICE HOOPER:  I am afraid not, Mr Patton, but thank you again.  What was the costs order in the court below? 
61.	MR ELVIDGE:  £3,000. 
62.	LORD JUSTICE HOOPER:  That stands.  Whatever that order was, it stands.