Prior, R. v

For an offence of offering to supply a controlled drug under section 4(3)(a) of the Misuse of Drugs Act 1971, the offence is complete when the defendant makes an apparent offer. The prosecution need not prove that the defendant intended, or was able, to perform it.

Whether words amount to an offer is an objective question of ordinary language for the jury. It must consider the words, their manner and the circumstances apparent to the recipient. A later withdrawal cannot undo an offer already made, although it may assist the jury in deciding whether an offer was made at all. Contractual rules requiring precision in price, quantity, time or place do not apply.

The appellant was convicted at Guildford Crown Court of two counts of offering to supply heroin, a Class A drug, contrary to section 4(3)(a) of the Misuse of Drugs Act 1971. The prosecution relied principally on recorded telephone calls with an undercover police officer posing as a buyer.

The appellant said that his apparent agreements were a bluff, that he intended only to introduce the officer to another supplier, and that any offers had later been withdrawn. The Recorder ruled that an offer completed the offence when made and left the meaning of the conversations to the jury.

On appeal, the central questions were whether an offer had to be intended as genuine, whether later withdrawal could expunge it, and whether the words were too vague or merely acquiesced in the officer’s offers to buy.

1. Appeal dismissed. The Recorder correctly left both counts to the jury and correctly directed it on the law.

2. Under section 4(3)(a) of the Misuse of Drugs Act 1971, a bogus offer can amount to an offer to supply a controlled drug. The provision does not require the prosecution to prove that the defendant intended to provide the drug, possessed it, could obtain it, or expected the recipient to regard the offer as genuine. The relevant question is whether the defendant knowingly used words which, viewed objectively, had the appearance and effect of an offer.

3. That question is ordinarily one of fact for the jury. It must assess the words used, how they were said, and the circumstances apparent to the recipient. An obvious charade or joke may fail to amount to an offer in ordinary language, but an undisclosed intention not to be taken seriously is irrelevant. The trial judge was therefore right not to impose a further mens rea requirement based on the defendant’s private intention.

4. Once an offer within the provision has been made, the offence is complete. A subsequent withdrawal or revocation cannot expunge it. A later statement may nevertheless be relevant where the conversation as a whole leaves doubt whether an offer was ever made.

5. The statutory term is not confined by contract-law rules. An offer may concern future supply and need not state quantity, price, time or place. It is also immaterial who initiated the discussion. The jury could properly decide that the exchanges amounted to offers by the appellant, rather than mere acquiescence in a request to buy.

• Court of Appeal (Criminal Division) — dismissed the appellant’s appeal against convictions entered at Guildford Crown Court on 20 June 2003.
• Crown Court at Guildford — convicted the appellant of two offences of offering to supply a Class A drug and imposed concurrent two-year Drug Treatment and Testing Orders.