House of Lords
HL
Lord Diplock, Viscount Dilhorne, Lord Salmon, Lord Fraser of
Tullybelton and
Lord Scarman
1978 March 3; April 6
On Appeal from Regina v. Goodchild (No. 2)
Crime--Drugs--Cannabis--Cannabis leaves and stalk separated from
plant--Leaves and stalk naturally containing
tetrahydrocannabinol--Whether
possession of "cannabinol derivative"--Misuse of Drugs Act 1971 (c. 38),
s. 37 (1), Sch. 2, Pt. IV
Section 37 (1) of the Misuse of Drugs Act 1971 provides:
"... 'cannabis resin' means the separated resin, whether crude or
purified, obtained from any plant of the genus Cannabis ..."
Part IV of Schedule 2 to that Act provides:
"... 'cannabinol derivatives' means the following substances,
except where contained in cannabis or cannabis resin, namely
tetrahydro derivatives of cannabinol and 3-alkyl homologues of
cannabinol or of its tetrahydro derivatives ..."
The appellant, who admitted possession of cannabis leaves and stalk, was
charged with unlawful possession of cannabis, cannabis resin and a
cannabinol
derivative, and with possession of the same drugs with intent unlawfully
to
supply, contrary to section 5 (2) and (3) of the Misuse of Drugs Act
1971. He was initially convicted on the counts relating to cannabis, and
acquitted by
direction of the trial judge on those relating to cannabis resin; the
remaining counts were ordered to lie on the file. Following the quashing
of
the convictions relating to cannabis by the Court of Appeal he was tried
on
the count alleging unlawful possession of a cannabinol derivative. After
a
ruling by a different trial judge that on the evidence possession of the
cannabis leaves and stalk amounted in law to possession of a cannabinol
derivative within the meaning of the Act he pleaded guilty. His appeal
against
conviction on the ground that the judge's ruling was wrong in law was
dismissed.
On appeal: --
Held, allowing the appeal, that the offence of unlawful possession of
any controlled drug described in Schedule 2 of the Act by its scientific
name was
not established by proof of possession of naturally occurring material
of
which the described drug was one of the constituents unseparated from
the
others and that that was so whether or not the naturally occurring
material
was also included as another item in the list of controlled drugs; that,
accordingly, possession of naturally occurring leaf and stalk of the
plant
cannabis sativa of which a cannabinol derivative, T.H.C., was an
unseparated constituent could not be charged under the Act as possession
of a "cannabinol derivative" (post, pp. 582H-583A, F-H).
Decision of the Court of Appeal (Criminal Division) [1977] 1 W.L.R.
1213;
[1978] 1 All E.R. 649 reversed.
No cases are refered to in their Lordships' opinions.
*579 The following cases were cited in argument:
Reg. v. Ashton-Rickardt [1978] 1 W.L.R. 37; [1978] 1 All E.R. 173, C.A.
Reg. v. Warner [1969] 2 A.C. 256; [1968] 2 W.L.R. 1303; [1968] 2 All
E.R. 356, H.L.(E.).
Reg. v. Worsell [1970] 1 W.L.R. 111; [1969] 2 All E.R. 1183, C.A.
APPEAL from the Court of Appeal (Criminal Division).
This was an appeal, by leave of the House of Lords, by the appellant,
Kevin
John Goodchild, from an order of the Court of Appeal (Lord Widgery C.J.,
Melford Stevenson and Slynn JJ.) dated July 8, 1977, dismissing his
appeal
against conviction at Portsmouth Crown Court where on March 3, 1977, he
pleaded guilty to unlawful possession of a controlled drug (Class A),
namely, a cannabinol derivative, contrary to section 5 (2) of the Misuse
of Drugs Act
1971 and was fined <
default. He had changed his plea to guilty following a ruling by Judge
McClellan that on the evidence and on a true construction of the Misuse
of
Drugs Act 1971 he was in possession of tetrahydro-cannabinol, which was
contained naturally in cannabis leaves and stalk and was a cannabinol
derivative within the meaning of the Act. He appealed against conviction
on
the ground that the judge's ruling was wrong in law. The Court of Appeal
dismissed the appeal but certified on the application of the appellant
that a point of aw of general public importance was involved in the
decision, namely:
"whether on the true construction of the Misuse of Drugs Act 1971, a
person in possession of some leaves and stalk only from a plant or
plants of the genus
cannabis may thereby be in possession of a cannabinol derivative
naturally
contained in those leaves, in contravention of section 5 (1) of that
Act."
The facts are set out in the opinion of Lord Diplock.
Representation
Randolph Boxall and Roderick Cordara for the appellant.
Ian Kennedy Q.C. and Michael de Navarro for the respondent.
LORD DIPLOCK.
Their Lordships took time for consideration.
April 6, 1978 LORD DIPLOCK. My Lords, as long ago as September 1975, the
appellant, Goodchild, was found to be in possession of about 1/4 1b. of
leaf
and stalk of the cannabis plant. He was in due course charged on
indictment
with unlawful possession of controlled drugs contrary to section 5 (2)
of the Misuse of Drugs Act 1971. In three counts, which were laid in the
alternative, the drugs were described as:
(1) a Class B controlled drug, namely, cannabis;
(2) a Class B controlled drug, namely, cannabis resin, and
(3) a Class A controlled drug, namely, a cannabinol derivative.
To understand what lies behind the application of these three different
descriptions to the leaves and stalk of cannabis plant it is necessary
to
understand a little of the botany and pharmacognosy of the plant
cannabis
sativa, the botanical name for Indian hemp. It can be grown in a wide
range of climates from tropical and temperate, including the United
Kingdom, although its cultivation here is now prohibited by section 6 of
the Misuse of Drugs Act 1971. It is one of the oldest of cultivated
plants in Asia where its fibrous stalk is used for making rope and
cloth, its seed for birdseed, fish-bait and
cattle food, and oil from the seed is used for soap and paint making.
The
plant contains hallucinogenic ingredients, *580 of which the chemical
names
are cannabinol and other substances of closely related molecular
structure
known to chemists as cannabinol derivatives. Of these one of the most
potent and important is the tetrahydro derivative of cannabinol known
familiarly as T.H.C.
Cannabis sativa is an annual. It grows to a height of 4 feet to 16 feet
and
flowers and fruits in October to November. The floral structure is
formed at
the top of the stems and is associated with a mass of small leaves known
as
vegetative tops. The lower parts of the plant also have a luxuriant
growth of
leaves which differ, and are to be distinguished, from the vegetative
tops.
The hallucinogenic ingredients are found in the resin of the plant.
These are
secreted in the hairs of trichomes on the leaves and on the flowering
and
fruiting tops. They are present in increasingly greater concentration as
one moves from bottom to top of the plant. There is very little in the
stem itself or in the ripe seeds. The concentration in the flowers is
about two-and-a-half
times, and in the vegetative tops is about twice, the concentration in
the
lower leaves. The resin can be extracted from the plant by brushing it
off the
leaves and flowers. The hallucinogenic ingredients, cannabinol, T.H.C.
can
then be extracted from the resin.
The narcotic effect of the cannabis plant when subjected to no other
treatment
except drying thus varies with the portion of the plant that is used.
The
resin when separated from the plant contains a higher concentration of
narcotic than the plant itself, while the highest narcotic content is to
be
found in cannabinol and cannabinol derivatives after they have been
extracted from the resin.
The Misuse of Drugs Act 1971 specifies in Schedule 2 what are the
controlled drugs dealt with by the Act and allots them to three classes,
A, B, and C. By
section 5, it is an offence for a person to have a controlled drug in
his
possession. (This is subject to some exceptions that do not affect the
instant
case.) By section 25 and Schedule 4 the maximum penalty on prosecution
on
indictment for having possession of a controlled drug is progressive,
according to the class of drug involved. It is a maximum of seven years'
imprisonment for a Class A drug, five years for a Class B drug, and two
years for a Class C drug.
Schedule 2 contains a list of more than 120 different drugs. Most of
these are
in Class A, but cannabis and cannabis resin are listed in Class B. The
majority of drugs in all three classes are synthetic substances only,
that is
to say they are man-made. All these are described in Schedule 2 by their
scientific name which, to a skilled chemist, would indicate their
molecular
composition. There are, however, a few drugs a which also occur
naturally in plants, in fungi or in toads. Apart from cannabis the most
important of these
are opium and its narcotic constituents, which include such well-known
alkaloids as morphine, thebaine and codeine. "Opium" is specified as a
Class A
drug under that name (which is not a scientific one). It consists of the
coagulated juice of the opium poppy. All parts, except the seeds, of the
opium
poppy, are also included separately in the list of Class A drugs under
the
description "poppy straw;" while morphine, thebaine and other alkaloids
contained in opium appear as separate items in Class A, and codeine as
an item in Class B. Cocaine occurs naturally in coca leaf which is the
leaf of a plant of the genus Erythroxylon: "coca leaf" and "cocaine"
appear as separate items in Class A.
These, together with cannabis are instances of where a naturally
occurring
substance which contains drugs specified by their scientific *581 names
in
Schedule 2, is itself included as a separate item in the Schedule. There
are
other drugs listed under their scientific names which also occur in
nature,
but the natural source from which they can be obtained is not itself
specified as a controlled drug in the Schedule. The following are
examples.
Lysergamide and lysergide occur in nature in the stalks, leaves and stem
of
the flowering plant known as Morning Glory; mescaline is found in the
flowering heads of the Peyote Cactus; psilocin and psilocybin are to be
found
in a toadstool sometimes called the Mexican magic mushroom; and
bufotenine
occurs in the common toadstool and in three other varieties of
toadstool; in the stalks and leaves of a semi-tropical plant, and even
as a secretion of the common toad and natterjack toad.
Cannabis and cannabis resin are defined respectively in section 37 as
follows:
"'Cannabis' (except in the expression 'cannabis resin') means the
flowering or fruiting tops of any plant of the genus Cannabis from
which the resin has not been extracted, by whatever name they may
be designated. 'Cannabis resin' means the separated resin, whether
crude or purified, obtained from any plant of the genus Cannabis."
They are included as items in the list of Class B drugs, but
"Cannabinol,except where contained in cannabis or cannabis resin" is an
item in Class A; so is "Cannabinol derivatives," an expression which is
defined in
Part IV of Schedule 2 as meaning "the following substances, except where
contained in cannabis or cannabis resin, namely tetrahydro derivatives
of
cannabinol and 3- alkyl homologues of cannabinol or of its tetrahydro
derivatives." The italics here are my own.
Following upon the lists of controlled drugs specified by name in each
of the three classes are additional paragraphs designed to incorporate
in the class closely related chemical analogues of the listed drugs,
such as stereoisomers, esters, ethers and salts. In addition there is a
paragraph which incorporates
within the relevant class "any preparation or other product containing a
substance or product for the time being specified in [the list of drugs]
above."
At the first trial of the appellant in the Crown Court in June 1976, the
expert scientific evidence was given in the form of written statements.
It was
common ground that it was not proved that any part of the leaf and stalk
of
the cannabis plant that had been found in his possession consisted of
flowering or fruiting tops, but that it was proved, though by
qualitative
analysis only, that some T.H.C. was present in the specimen that had
been
subjected to analysis. Upon this evidence the judge ruled that the
material
found in the appellant's possession was cannabis. The judge also ruled
that
the appellant had in his possession a cannabinol derivative, T.H.C.,
since
this had been identified as a constituent of that material; but that the
appellant was not in possession of any cannabis resin.
In consequence of those rulings, the appellant pleaded guilty to the
count of unlawful possession of the controlled Class B drug, "cannabis."
He pleaded not
guilty to the count of being in unlawful possession of the Class A drug
"a
cannabinol derivative." This count was left upon the file; and the
appellant was sentenced to a fine of <
months' imprisonment in default of payment on the count of unlawful
possession of "cannabis."
His appeal to the Court of Appeal against his conviction on this count
was
allowed on December 10, 1976, on the ground that the statutory *582
definition of cannabis is restricted to the flowering or fruiting tops
of the plant, and
that leaf and stalk alone, in the absence of any such flowering or
fruiting
tops, does not fall within the definition. This was, in my view,
obviously
right. No argument to the contrary has been advanced before your
Lordships'
House.
The appellant underwent a second trial upon the count remaining on the
file
which charged him with unlawful possession of "a cannabinol derivative."
This
was held in the Crown Court on March 3, 1977, and was presided over by a
different judge. He too ruled that possession of leaf and stalk of the
cannabis plant which proved on analysis to contain traces of T.H.C.
amounted to possession of "a cannabinol derivative" within the meaning
of section 5 of
and Schedule 2 to the Act. Faced by this ruling the appellant once more
changed his plea to guilty and was sentenced to a fine of
<
25. Once more too he appealed to the Court of Appeal who upheld the
judge's
ruling and certified that a point of law of general public importance
was
involved in the decision, namely:
"Whether on the true construction of the Misuse of Drugs Act 1971
a person in possession of some leaves and stalk only from a plant
or plants of the genus cannabis may thereby be in possession of a
cannabinol derivative naturally contained in those leaves, in
contravention of section 5 (1) of that Act."
My Lords, the Misuse of Drugs Act 1971 is a criminal statute. It makes
it an
offence to be in possession of any of a long list of drugs and makes the
gravity of the offence depend upon the class of listed drug into which
the
particular substance in his possession falls. Most, though not all, of
the
listed drugs in the three Classes A, B and C are described by their
precise
chemical name and are synthetic substances which do not occur in the
natural state. In the case of these drugs there is no room for doubt or
ambiguity. A
substance either is the described synthetic drug (or a preparation or
other
product containing the described synthetic drug) or it is not. But there
are some listed drugs which, although they can be synthesised, also
occur in the natural state in plants, fungi or animals, and these
include some of the most used narcotic drugs. It would not in my view be
a natural use of language to
say, for instance, that a person was in possession of morphine when what
he
really had was opium poppy straw from which whatever morphine content
there
might be in it had not yet been separated; nor do I think it would be
apt use
of language to describe the poppy straw as a "preparation or other
product"
containing morphine, since this expression is inappropriate to something
that is found in nature as distinct from something that is manmade.
Regarded simply from the point of view of language the matter is in my
view put beyond doubt
as respects the specific narcotic ingredients found in opium poppies by
the
inclusion in the list as separate items "opium" and "poppy straw" as
well as morphine, thebaine, codeine and several other specified
alkaloids which are or may be constituents of opium and of poppy straw.
A similar indication of the
meaning of references in the Schedule to specific drugs by their
scientific
names is to be found in the inclusion as separate items of "cocaine"
itself
and "coca leaf" which contains cocaine and from which cocaine can be
extracted. I should conclude, therefore, that prima facie a reference in
Schedule 2 to a specific drug by its scientific name does not include a
reference to any naturally occurring substance of which the specific
drug is a constituent but from which it has not yet been separated.
*583 So prima facie one would not suppose that possession of naturally
occurring leaf and stalk of the plant cannabis sativa of which a
cannabinol
derivative, T.H.C., was an unseparated constituent could be charged
under the Act as possession of a "cannabinol derivative."
The argument to the contrary depends upon the presence of the words of
exception which I have italicised in the description of cannabinol in
the list of Class A drugs and in the definition of cannabinol
derivatives in Part IV of Schedule 2. These, it is suggested, give rise
to an inference that but for the
exception, cannabinol and cannabinol derivatives notwithstanding that
they
were contained in the natural substances cannabis or cannabis resin
would have fallen within the definition; and that, accordingly
possession of cannabinol
and cannabinol derivatives in however small a quantity if contained in
any
naturally occurring material other than one falling within the statutory
definition of cannabis or cannabis resin would constitute the offence of
possession of a Class A drug under the Act.
My Lords, such inference as to the ambit of enacting words that can be
derived
from the presence of a proviso or the exception is notoriously a weak
one,
since the proviso or exception may have been inserted per majorem
cautelam. In any event it must give way whenever the consequences of
applying it would be
irrational or unjust. In the instant case the consequence, at the time
that
the appellant was prosecuted, would have been that he would be liable to
be
convicted of the more serious offence of unlawful possession of a Class
A
drug, whereas if what he had had in his possession had included part of
the
flowering or fruiting tops of the cannabis plant and so contained a
greater
concentration of cannabinol derivatives, he could only have been
convicted of the lesser offence of possession of a Class B drug, to wit
cannabis itself.
I would construe the Act in such a way as to avoid this irrational and
unjust result. A man should not be gaoled upon an ambiguity. I would
allow the appeal
and quash the conviction of the appellant for the offence of unlawful
possession of a cannabinol derivative.
The question directly involved in this appeal will not arise again in
future,
as the definition of "cannabis" has now been amended by section 52 of
the
Criminal Justice Act 1977, so as to include the whole of the plant
except the
mature stalk and fibre produced from it and the seeds. However, similar
questions may arise in relation to those other listed drugs described by
their
scientific names, but which also occur naturally in plants or fungi or
animals. As I have already indicated as a necessary step in the
reasoning
which has led me to the conclusion in the instant appeal that no offence
was
committed by the appellant, the offence of unlawful possession of any
controlled drug described in Schedule 2 by its scientific name is not
established by proof of possession of naturally occurring material of
which
the described drug is one of the constituents unseparated from the
others.
This is so whether or not the naturally occurring material is also
included as another item in the list of controlled drugs.
VISCOUNT DILHORNE.
My Lords, I have had the advantage of reading the speech of my noble and
learned friend, Lord Diplock. I agree with it and only desire to add a
few
observations.
When Parliament intended that plants and parts of plants should come
within
the scope of the Misuse of Drugs Act 1971, it made its intention
manifest,
e.g., by the definition of cannabis in section 37 (1) as *584 meaning
the
flowering or fruiting tops of any plant of the genus Cannabis from which
the resin had not been extracted, and in Schedule 2, Part I, by the
inclusion in Class A drugs of coca leaf and of poppy straw, defined as
meaning all parts, except the seeds, of the opium poppy, after mowing.
No parts of any plants of the genus Cannabis other than its flowering or
fruiting tops are mentioned in the Act, and in my view no parts other
than
flowering or fruiting tops whether or not in their natural state they
contain cannabinol derivatives, as defined in Part IV of Schedule 2,
come within the scope of the Act.
The definition of "cannabinol derivatives" defines those words as
meaning a
number of substances "except where contained in cannabis or cannabis
resin."
This definition may suggest that it should be inferred that a cannabinol
derivative contained in parts of a plant other than the flowering or
fruiting
tops of the genus cannabis is covered by the definition but I do not
think
that any such conclusion can properly be drawn. The draftsman having
defined cannabis and cannabis resin in section 37, no doubt felt
compelled to exclude the substances so defined from the definition of
cannabinol derivatives.
In my opinion this appeal should be allowed.
LORD SALMON.
My Lords, I have had the advantage of reading in draft the speech
prepared by
my noble and learned friend, Lord Diplock. I agree with it and would
also
allow this appeal.
LORD FRASER OF TULLYBELTON.
My Lords, I have had the advantage of reading in draft the speech
prepared by my noble and learned friend Lord Diplock. I agree with his
conclusion and with the whole of the reasoning on which it is based.
I also would allow this appeal.
LORD SCARMAN.
My Lords, I have had the advantage of reading in draft the speech
delivered by
my noble and learned friend, Lord Diplock. I agree with it, and for the
reasons he gives would allow this appeal.
Representation
Solicitors: Amphlett & Co. for Donnelly & Elliott, Gosport; Director of
Public Prosecutions.
Appeal allowed.
J. A. G.
(c) Incorporated Council of Law Reporting For England & Wales
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