R v Cunliffe

R v Cunliffe

Court of Appeal (Criminal Division)

The Times 2 May 1986, [1986] Crim LR 547, (Transcript:Marten
Walsh Cherer)

HEARING-DATES: 24 April 1986

24 April 1986

COUNSEL:

R Hill for the Applicant; M Meeke for the Crown

PANEL: Watkins LJ, Tudor Evans and Turner JJ

JUDGMENTBY-1: TURNER J

JUDGMENT-1:

TURNER J: (reading the judgment of the Court) On 24th September 1985 in the
Barnstaple Crown Court the appellant pleaded not guilty to count 2 in an
indictment containing two counts, namely to possessing a controlled drug, a
preparation containing psilocybin. He was convicted of that count. The
application for leave to appeal against conviction was referred direct to the
full court and we have granted that leave.

The facts relating to this matter were that on 8th November 1984 police
executed a search warrant issued under the Misuse of Drugs Act 1971 at the
appellant's home in Ilfracombe. The appellant was asked by the police if he had
any drugs on the premises and he replied: "Yes, some pot". That formed the
subject matter of count 1 of the indictment to which in due course the appellant
pleaded guilty. The police officers then made a search of the premises and in
the appellant's bedroom found a wooden casket which contained some dried
mushrooms which on later analysis proved to be some 5.84 grammes of dry
mushrooms. A sample was taken which was found to contain psilocybin which is an
ester of psilocin -- a specified class A drug. The appellant was asked what
they were. He replied: "Psilocybin mushrooms". He was asked how he took them
and he replied: "In tea, I use about 4 or 5 a time as a tonic. I can't use any
more than that because I have a bad stomach and they make me sick".

The appellant was arrested and subsequently interviewed on the same day. He
told the investigating officer that he had picked the mushrooms "on the tors"
some three to four weeks earlier. During the course of the interview the
officer asked the appellant these questions to which he gave the following
answers: "(Q) How did you stop them rotting? (A) I put them in a paper bag and
they dried out natural. (Q) Did you place the bag by a heater or anywhere to
allow them to dry? (A) Not specifically." At a later stage in the interview the
officer asked this question: "How long have you been taking psilocybin
mushrooms? (A) About a year."

Evidence was given during the course of the hearing by a forensic scientist,
who said that the mushrooms, which are known popularly as "magic mushrooms" or
"Mexican magic mushrooms" did contain psilocybin which was an ester of psilocin.
Both substances were hallucinogens. The sample which was analysed was found to
be dried in the sense that a large proportion of the naturally-occurring water
had been removed. Under cross-examination the witness was asked if there was
any other evidence of preparation of the mushrooms beyond the fact that they no
longer had the natural water they used to have. The reply was: "No there is not
". There were some 100 mushrooms involved.

In that state of the evidence and at the close of the case for the
prosecution it was submitted on behalf of the appellant that there was no case
to answer in that the mushrooms which formed the subject matter of count 2
neither could nor did constitute a controlled drug within the meaning of part 1
of schedule 2, paragraphs (1) and (5) of the Misuse of Drugs Act 1971.
Psilocybin is included in the list of class A drugs in paragraph (1) of the
schedule; psilocin is a derivative of psilocybin. The specific drugs in
paragraph (1) are given an extended meaning by the terms of the paragraphs which
follow, of which only paragraph (5) is germane to the current problem. That
provides:

"Any preparation or other product containing substances or other product for
the time being specified in any of paragraphs (1) to (4) above."

The short question for the decision of the court is whether or not the
collection of dried psilocybin mushrooms found in the wooden casket in the
appellant's home was properly to be described as a preparation or other product
containing psilocin and were therefore a class A controlled drug caught by the
provisions of the Misuse of Drugs Act 1971 as to possession. For reasons which
will become clear in the course of this judgment we confine ourselves to a
consideration of the word "preparation".

Counsel for the appellant's submission was quite simply that the mushrooms
which had been picked some three to four weeks before the date of the alleged
offence had undergone no change which could properly be termed "preparation".
We were referred to the Oxford English Dictionary definition of the word
"preparation", and I quote: "The action of preparing, or condition of being
prepared; making or getting ready . . . A preparatory act or proceeding; Things
done to make ready for something . . . The action or special process of putting
something into proper condition for use".

We were also referred to the case of R v Goodchild (1978) Cr App R 56, in
support of the proposition that since psilocybin mushrooms are a
naturally-occurring product in which the described drug is present as a
constituent, unseparated from the whole, it was an inapt use of language to say
of the dried mushrooms that they were a preparation containing psilocin and
thereby caught by the Misuse of Drugs Act 1971. Goodchild was concerned with
the unlawful possession of cannabis, cannabis resin and a cannabitol derivative,
in respect of which special provisions in the Act apply. In the context of that
case it is to be observed that during the course of his speech in the House of
Lords Lord Diplock commented:

"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 . . . The following are examples . . . psilocin and psilocybin are to
be found in a toadstool sometimes called the Mexican magic mushroom".

These were, of course, general obervations made during the course of Lord
Diplock's speech. We do not understand Lord Diplock to have addressed himself
to the problem before this court which is: whether or not mushrooms dried as the
deliberate act of a person in conditions which would not exist in nature come
within the meaning of "preparation" as opposed to being mere examples of plants
which occur in nature.

We were also referred to the decision of this court in R v Stevens [1981]
Crim LR 568, but in respect of which we were provided with a full transcript of
the judgment. The substance which was involved there was powdered dried
psilocybin mushrooms. The same question arose. This court then held that if
the word "preparation" where it appeared in the Act was to be given a technical
meaning, it was likely that one would have been included in the Act itself. The
lack of a definition meant that the word should be given its ordinary and
natural meaning. Drake J, who delivered the judgment of the court, went on to
say:

"What was needed in order that these mushrooms should be prepared is that
they ceased to be in their natural growing state and had in some way been
altered by the hand of man to make them into a condition in which they could be
used. The jury in this case found that what had happened, on the facts of the
case, amounted to such 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."

We are of course bound by the decision in Stevens. In any event we would
respectfully agree that the decision was undoubtedly correct on its facts and
also that its ratio applies equally to the facts of the present case. The only
factual distinction which exists is that whereas in Stevens the dried mushrooms
were in powder form, here they were not, albeit they were in a state in which
they were suitable for future use as an infusion in tea. Accordingly it follows
that it was open to a jury to find, if satisfied on the facts that the appellant
had subjected the picked mushrooms to a process of drying, that such involved an
act of preparation for future use.

The trial judge made his ruling on the submission in the following terms:

"Where a person accumulates a product which, in certain conditions, will
result in a useful drug, and it is found that that person is in possession of
that product in a useful form, it calls for an explanation as to whether that is
merely the random operation of natural conditions, or deliberate activity on his
part to bring into play those admittedly natural conditions for the benefit of
his natural substance so that it may result in a drug."

Having made that ruling the case proceeded, and in the course of his
summing-up the learned judge gave this direction to the jury:

"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 being just a natural ordinary occurrence on
its own, only then can you find this man guilty."

It is the judgment of this court that neither the ruling nor the direction
embraced any error of law. This appeal will be dismissed.

DISPOSITION:

Appeal dismissed