Paragraph 5

Director of Public Prosecutions v. Goodchild

2006-11-23T13:13:00.000-08:00

Director of Public Prosecutions v. Goodchild

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 <>25 with one month's imprisonment in

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 <>100 or six
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

Hodder and another v Chief Constable of Avon & Somerset

2006-11-23T13:11:00.000-08:00

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

R v Cunliffe

2006-11-23T13:08:00.000-08:00

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