R v Maginnis

For the purposes of sections 4(1) and 5(3) of the Misuse of Drugs Act 1971, supplying a controlled drug requires more than transferring physical control. It means furnishing or providing the drug to meet the recipient’s wants or requirements and to enable the recipient to use it for the recipient’s own purposes.

A person who unlawfully holds drugs for another and intends to return them so that the depositor may use or circulate them intends to supply them. The depositor’s lack of an enforceable right to recover the drugs, and the custodian’s duty not to return them, make an ordinary bailment analogy inapt.

The respondent was found with 227 grammes of cannabis resin in his car. He said that a friend had left the package there and was expected to collect it. The trial judge ruled that an intention to return the package amounted to an intention to supply it. The respondent then pleaded guilty to possessing a controlled drug with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971.

The Court of Appeal (Criminal Division) allowed his appeal and quashed the conviction: [1986] QB 618. It preferred the reasoning in R v Dempsey to that in R v Delgado and held that returning an article to its depositor was not a supply merely because physical possession was restored.

The central issue was whether a person holding controlled drugs for safekeeping intends to supply them if intending to return them to the person who deposited them.

1. Appeal allowed by a majority of four to one. Lord Keith of Kinkel delivered the leading speech. Lord Brandon of Oakbrook, Lord Mackay of Clashfern and Lord Oliver of Aylmerton agreed with his reasons. The Court of Appeal’s order was reversed, save as to legal aid, and the conviction on count one was restored.

2. Per Lord Keith, “supply” in sections 4(1) and 5(3) of the Misuse of Drugs Act 1971 bears its ordinary and natural meaning. It conveys the furnishing or provision of something wanted or required by another. A mere transfer of physical control is insufficient. The transfer must enable the recipient to apply the thing to the recipient’s own purposes. The item supplied need not come from the supplier’s personal resources.

3. A custodian who returns unlawfully held drugs to their depositor so that the depositor can use or circulate them supplies the drugs. Such a depositor has no legally recognised right to immediate possession. The custodian has a duty not to return the drugs, but to destroy them or deliver them to the police. The analogy with lawful bailment is therefore false.

4. Per Lord Keith, R v Delgado [1984] 1 WLR 89 and R v Dempsey were reconcilable. Delgado concerned the intended return of drugs for the depositors’ own purposes. Dempsey concerned a temporary transfer for safekeeping without any intention that the custodian should use the drugs. Lord Keith qualified Delgado to the extent that it might suggest that any transfer of physical control alone constitutes supply. He approved the consistent approach in Donnelly v HM Advocate 1985 SLT 243.

5. Lord Goff of Chieveley dissented. In his view, supply ordinarily means making goods available from resources other than the recipient’s own. A custodian’s return of deposited goods does not become supply merely because the deposit is unlawful or unenforceable. He would have dismissed the appeal and regarded Delgado and Donnelly as wrongly decided.

6. The certified question was amended and answered affirmatively. The cause was remitted to the Court of Appeal to proceed consistently with the House’s judgment.

1. House of Lords: By a majority of four to one, allowed the Crown’s appeal, reversed the Court of Appeal’s order save as to legal aid, restored the conviction and remitted the cause.

2. Court of Appeal (Criminal Division): Allowed the respondent’s appeal and quashed his conviction: [1986] QB 618. It certified a point of law of general public importance and granted leave to appeal.

3. Inner London Crown Court: Following the judge’s ruling that returning the drugs would constitute supply, the respondent pleaded guilty to possessing a controlled drug with intent to supply and was sentenced to 12 months’ imprisonment.