Hodder and another v Chief Constable of Avon & Somerset

Hodder and another v Chief Constable of Avon & Somerset

Constabulary

Queen's Bench Division (Crown Office List)

[1990] Crim LR 261, The Times 14 December 1989, The

Independent 14 December 1989, CO/1088/89, (Transcript:Marten

Walsh Cherer)

HEARING-DATES: 13 December 1989

13 December 1989

COUNSEL:

R Bromilow for the Applicants; S Morgan for the Respondents

PANEL: Neill LJ, Roch J

JUDGMENTBY-1: ROCH J

JUDGMENT-1:

ROCH J: This is an appeal by James Hodder and Ricky Matthews by way of case stated from a decision of the Sedgemoor Magistrates' Court sitting at Bridgewater in the county of Somerset, the decision having been given on 7th April 1989.

On that day the justices convicted the appellants of offences under section

5(2) of the Misuse of Drugs Act 1971.

The magistrates made the following findings of fact which are set out in paragraph 2 of the case stated:

"a) At 1pm on Saturday 26th November 1988 uniformed officers and members of Taunton Drug Squad attended at 86 Bowerings Road, Bridgwater, where a search warrant under the Misuse of Drugs Act 1971 was executed.

b) At 1.18pm, in the kitchen, a drug squad officer found in the freezer compartment of the fridge at that address, 44 individual bags of frozen mushrooms.

The individual packages were marked as follows:

9 envelopes marked 'Doss 100'

4 envelopes marked 'Jims 100'

1 envelope marked 'stalks'

21 envelopes marked 'Rick 100'

1 envelope marked 'Rick'

2 envelopes marked 'R Matthews'

1 paper bag marked 'Shane -- hands off cunt'

1 Post Office £100 silver bag

3 bags unmarked

c) The packages belonged to the appellants. They contained mushrooms that had been picked during September and October from fields around Hawbridge Reservoir, near Spaxton. The appellants were aware that the mushrooms could be used to hallucinate. The appellants also knew that it was illegal to prepare the mushrooms for use but thought this meant it was wrong to boil or dry them.

They intended to use the mushrooms to hallucinate. The mushrooms had been counted into packages containing 100 mushrooms, labelled and placed in the freezer for later use.

d) The packages were sent to the Home Office Forensic Science Laboratory at Chepstow. A sample of mushrooms from a number of the packages was analysed by Stephen John Waldron BSc, PhD, a forensic scientist. Psilocybin was detected in each sample. Psilocybin is an ester of Psilocin. Psilocin is a Class A drug listed in Part I of Schedule 2 to the Misuse of Drugs Act 1971.

e) We [the magistrates] accepted the evidence of the forensic scientist that if mushrooms are picked in a moist, wet state and the left, especially if they are in a bag, they will rot and deteriorate into a black 'soup'. Placing mushrooms in a freezer stops their naturally occurring deterioration. In this case the mushrooms had been preserved by the freezing process. They would not be exactly the same on thawing. You would get destruction of cell walls -- a structural breakdown."

These were the findings of fact made by the magistrates. The appellants did not give evidence. They accepted the facts put forward by the prosecution.

Section 5(1) of the Misuse of Drugs Act 1971 provides:

"Subject to any Regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession."

Section 7 deals with the authorisation of activities which would otherwise be unlawful. Section 5(2) of the Act, the section under which the appellants were charged and convicted, provides:

"Subject to section 28 of this Act and to subsection (4) below, it is an offence for a person to have a controlled drug in his possession in contravention of subsection (1) above."

Section 28 provides a defence where the defendant proves lack of knowledge of certain material facts; for example, the substance in his possession was a controlled drug. Section 7(4) provides a defence where the defendant shows that he was in possession of the controlled drug for the purposes of stopping offences being committed by others or to hand the substance over to a person lawfully entitled to take custody of it. There is no suggestion in this case that the appellants could have availed themselves of either of those defences or that they would have come within regulations which would make possession of the mushrooms lawful.

Section 2(1) of the Misuse of Drugs Act 1971 provides:

"In this Act

(a) the expression 'controlled drugs' means any substance or product for the time being specified in Part I, II, or III of Schedule 2 to this Act."

That subsection also provides for the use in the Act of the expressions "Class A drug", "Class B drug" and "Class C drug", Class A drugs being those specified in part I of the second schedule, Class B drugs being those specified in part II, and Class C drugs being those specified in part III. Part I of the second schedule of the Act in its first paragraph lists a number of substances and products. One of those is psilocin. Therefore, psilocin is a Class A controlled drug and unlawful possession of it is an offence under section 5 of the Act.

Paragraph 3 of part I of the second schedule to the Act reads:

"Any ester or ether of a substance for the time being specified in paragraph

1 or 2 above [not being a substance for the time being specified in part III of this schedule]."

The effect of paragraph 3 of the first part of the second schedule and section 2(1) of the Act jointly is that any ester of a substance for the time being specified in paragraph 1 or paragraph 2 of part I of the second schedule is a Class A controlled drug. Similarly, the effect of paragraph 5 of that part of that schedule and section 2(1) of the Act is that "any preparation or other product containing a substance or product for the time being specified in any of paragraphs 1 to 4" of the first part of the second schedule is a Class A controlled drug.

It is to be noticed that the magistrates found that the mushrooms contained psilocybin and that psilocybin is an ester of psilocin which is a Class A drug listed in part I of the second schedule of the Misuse of Drugs Act 1971. These findings were not and are not challenged, and one might be forgiven for asking the question "were not those facts sufficient to dispose of this case?" The appellants were in possession of the mushrooms without lawful excuse, the mushrooms contained psilocybin, that is an ester of psilocin, and therefore within paragraph 3 of the first part of the second schedule. Did not that evidence prove that the appellants were in possession of a Class A controlled drug?

That was not the way in which the prosecution case was presented to the magistrates, nor indeed was it the way that the respondents intended to present their case to this court as Mr Morgan who appeared on behalf of the respondents frankly admitted.

The way in which the prosecution presented the case to the magistrates was

this: that the case came within paragraph 5 of part I of the second schedule; that the mushrooms having been picked, packed and frozen for the purpose of preserving them for future use, were a preparation within the meaning of the words "any preparation containing a substance or product for the time being specified in paragraph 3 above", namely, psilocybin, which is an ester of psilocin.

During the course of further argument before this court Mr Morgan sought to rely in the alternative on the words in paragraph 5 "other product" as apt to cover these frozen and packaged mushrooms.

Before turning to the submissions made on behalf of the appellants to the magistrates and the submissions made on behalf of the appellants to this court, it is useful to look at the reason why prosecuting authorities rely in cases of magic mushrooms (as I shall call them) on paragraph 5 of part I of the second schedule and not on paragraph 3.

The reason is the decision in the House of Lords in DPP v Goodchild [1978] 2 All ER 161, 67 Cr App Rep 56. In that case Mr Goodchild had pleaded guilty to unlawful possession of a Class A controlled drug, namely, a cannabinol derivative contrary to section 5(2) of the Misuse of Drugs Act 1971, having changed his plea from one of not guilty following a ruling by the crown court judge that on the evidence and the true construction of the Misuse of Drugs Act

1971 he was in possession of tetrahydro cannabinol (TCH) which was contained natrually in cannabis leaves and stalks and was a cannabinol derivative within the meaning of the 1971 Act.

Mr Goodchild had been indicted on three counts which were alternatives. The first count charged him with possession of a Class B controlled drug, namely, cannabis; the second count, possession of a Class B controlled drug, namely, cannabis resin and the third count, possession of a Class A controlled drug, namely, a cannabinol derivative.

In his speech, Lord Diplock recounts that cannabis resin can be extracted from the plant cannabis sativa by brushing it off the leaves and flowers of the plant and that cannabinol and cannabinol derivatives can be extracted from the resin, and indeed the highest narcotic content is to be found in the cannabinol and the cannabinol derivative after they have been extracted from the resin (see pages 58/59 of the report). Lord Diplock went on to conclude that the appeal should be allowed and the appellants' conviction for the offence of unlawful possession of a cannabinol derivative quashed for this reason:

"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." That is a quotation from page 62 of the report.

Viscount Dilhorne at the same page put the point in this way:

"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, eg by the definition of cannabis in section 37(1) as 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."

This authority explains why in cases involving magic mushrooms the prosecution are obliged to try to bring themselves within paragraph 5 of the first part of the second schedule to the Misuse of Drugs Act 1971.

I would suggest, with considerable diffidence, that it may be necessary for the courts to look again at this matter. In the Goodchild case, ([1978] 2 All ER 161, 67 Cr App Rep 56), the cannabinol or cannabinol derivatives were not available until they had been extracted from the resin of the cannabis plant, whereas the halluncinatory drug psilocybin (the ester of psilocin) is available to a person who has picked magic mushrooms by his simply eating the fungi that he has picked. It may be that a distinction should be drawn between those instances in which a controlled drug occurs in the natural state in plants or fungi and cannot be used to produce hallucinations without being separated from the substance of which it is a constituent, and those cases in which a controlled drug occurs in a natural plant or fungus and can be used to produce hallucinations without being separated from the plant or fungus.

However, that is not the way in which the prosecution's case was presented to the magistrates, nor was it the way in which it was presented to this court.

Thus it is necessary to deal with this appeal on the issues that were raised both before the magistrates and before this court.

The submissions made on behalf of the appellants to the magistrates were

these: that something had to be done to the mushrooms to make them useable as a drug. Preparation must refer to the mushrooms and not mere packaging. Freezing was maintaining the mushrooms in their condition following picking and was therefore not an act of preparation but an act of preservation. It was also submitted on behalf of the appellants that there was no evidence that their purpose in doing what they did was to render the mushrooms useable as a drug, the freezing was simply to preserve the mushrooms so they could be used at some time in the future as a drug.

Mr Bromilow on behalf of the appellants before us and in reliance on Lord Diplock in Goodchild ([1978] 2 All ER 161, 67 Cr App Rep 56) submitted that to be "a prepartion containing psilocybin" the object in the possession of the appellants would have to be "man-made". Further, Mr Bromilow submitted that a distinction had to be drawn between acts which might be described as "preparatory acts" or "acts of preparation" and the question whether what was in the appellants' possession was "a preparation". Mushrooms did not become "a preparation" simply because an act preparatory to their being used for hallucinatory purposes had been performed. For example, mere picking, submitted Mr Bromilow, would not make the mushrooms a preparation, nor would putting them in packets and labelling them make them a preparation. They would still be mushrooms. Nor, argued Mr Bromilow, did the act of freezing them make them a preparation. They simply became frozen mushrooms. The man in the street, said Mr Bromilow, would not refer to the frozen mushrooms in the freezing compartment of the refrigerator as a preparation; he would simply call them frozen mushrooms.

I must confess that without the benefit of precedent I would have readily accepted those submissions. They gained some strength from Mr Morgan's shift of his ground when we heard supplementary submissions in this appeal, and Mr Morgan suggested that it would be a normal use of language to refer to frozen and packaged vegetables as a product and that the frozen packaged mushrooms could be referred to as a product containing psilocybin.

There are, however, two authorities. First, the case of R v Stevens [1981] Crim LR 568 is a decision of the Court of Appeal Criminal Division. In that case the appellant was found in possession of magic mushrooms. However, those mushrooms had been dried by theapplication of a low heat, possibly that of the sun, and then pounded into a powder. In those circumstances the Court of Appeal held that the trial judge had not misdirected the jury in leaving the jury to decide "whether or not the powdered substance found in the appellant's possession had been arrived at by preparation". The Court of Appeal held that the word "preparation" should be given its ordinary and natural meaning and not a technical meaning. In order for the powder to be a preparation it did not require that the mushrooms should have been subjected to some technical or chemical process. The jury were entitled on the facts of the case to find that Mr Stevens was in possession of a preparation being "a preparation by the hand of man by drying them out and reducing them to a powdered state in which they could be used for human consumption". I would respectfully agree with that reasoning and the conclusion reached in that case.

The matter was considered again by the Court of Appeal Criminal Division in the case of R v Cunliffe [1986] Crim LR 547. Again the case concerned psilocybin mushrooms. About 100 dried mushrooms were found in a wooden casket in the appellant's home. The appellant told the police they were psilocybin mushrooms and he had picked them some 3 or 4 weeks previously. He said that he had dried them out in a paper bag. He used them in tea and had been taking such mushrooms for about a year. The Court of Appeal in that case remarked that the only distinction between that case and the case of Stevens ([1981] Crim LR 568) was that in the case of Stevens the mushrooms were in powder form. The Court of Appeal held "for the mushrooms to have been prepared they had to cease being in their natural growing state and to be in some way altered by the hand of man to make them into a condition in which they could be used". The court said they were bound by the decision in Stevens, and applying the ratio in Stevens to the facts of Cunliffe decided that the jury had been properly directed and were entitled to find, if satisfied that the appellant had subjected the mushrooms to a process of drying, that that involved an act of preparation for future use.

The direction which the trial judge had given to the jury had been:

"It is only if you can say to yourselves, 'We feel sure that what this man did was to arrange for the mushrooms to be dried out in his house to be available for use for drug taking'; only if you are satisfied that he did that act of preparation rather than it just being a natural ordinary occurrence on its own, only then can you find this man guilty."

The conclusion that the magistrates came to in this case was "that the appellants picked a large number of mushrooms knowing that they could be used to hallucinate and intending to use them for that purpose. We were also of the opinion that because the mushrooms were counted out into packages each containing 100, then labelled and subsequently frozen, that, using the ordinary and natural meaning of the word 'preparation' the actions of the appellants amounted to preparation for future use".

In my judgment the decided cases make it clear that for a substance to be "a preparation" within the meaning ascribed to those words in paragraph 5 of part I of the second schedule to the Misuse of Drugs Act 1971, a natural substance must have been subjected to some process performed by a human being which prepared the natural substance for future use as a drug. The word "prepare" means "to make ready or fit; to bring into a suitable state; to subject to a process for bringing it to a required state". In my judgment the freezing of these magic mushrooms did not convert the frozen mushrooms into "a preparation". There was no evidence that freezing the mushrooms brought them into a suitable state to be consumed. Indeed, the evidence was that they could not be used until they had been defrosted. In my judgment this case can be distinguished from the cases of Stevens ([1981] Crim LR 568) and Cunliffe ([1986] Crim LR 547), where, I assume, there was evidence that the mushrooms had to be dried and powdered or at least dried before they could be used as an hallucinatory drug. Thus if the matter rested on that point alone I would be disposed to allow this appeal and to hold that the act of freezing was not an act of preparation; it was simply an act of preservation.

The appeal is, of course, without merit. The appellants were aware that the mushrooms could be used to produce hallucinations, they knew it was illegal to prepare the mushrooms for use and they intended that the mushrooms should be used by themselves or others as hallucinatory drugs. It is interesting to observe from paragraph 2(c) of the stated case that the appellants apparently thought that it was necessary to boil or dry the mushrooms in order to use them.

However, in my judgment these mushrooms picked, packaged and frozen do come within the meaning of the word "product" or within the phrase "or other product"

in those words' ordinary and natural meanings. The evidence indicates clearly that the appellants were producing packages of frozen magic mushrooms for use by themselves and others in much the same way that supermarkets produce packaged and frozen vegetables. The calling of such packets of frozen vegetables "products" is an ordinary and natural use of language. Consequently on that ground I would refuse this appeal.

Before departing from this case I would observe that it is open to the Secretary of State to add to the contents of part I of the second schedule of the 1971 Act, and it would remove much artificiality from the law and the opportunity for raising unmeritorious defences if magic mushrooms were to be added to part I of the second schedule.

JUDGMENTBY-2: NEILL LJ

JUDGMENT-2:

NEILL LJ: I agree

DISPOSITION:

Appeal dismissed

SOLICITORS:

Dodson Harding, Bridgwater, Somerset; The Crown Prosecution Service