M, R. v

Under section 28(3) of the Misuse of Drugs Act 1971, the defendant bears an evidential, rather than legal, burden when relying on absence of knowledge or suspicion that a substance is a controlled drug. Once sufficient evidence has been raised, the Crown must prove the contrary beyond reasonable doubt.

If both burdens are left to the jury, the judge must clearly explain their different nature and standards. A direction that leaves the defendant’s burden unclear, while merely stating that the Crown must prove guilt, is inadequate and renders a conviction unsafe.

M appealed against her conviction for possessing diamorphine with intent to supply. Packages containing heroin fell from her sleeve after a prison visit to her boyfriend, who was serving a sentence for drug supply offences.

She said that she believed the packages contained muscle-building steroids. She also raised duress. The appeal concerned the separate statutory defence that she neither believed nor suspected, nor had reason to suspect, that the substance was a controlled drug.

At trial, the judge directed the jury that M had to prove her lack of knowledge on the balance of probabilities, while also stating that the Crown retained the burden of proving guilt. The central issue was whether that direction properly distinguished the evidential burden under section 28(3) from the Crown’s criminal legal burden.

1. Appeal allowed. The court quashed the conviction because the jury direction on M’s asserted lack of knowledge was inadequate. A retrial was ordered on both counts of the indictment.

2. Section 28(3) of the Misuse of Drugs Act 1971 had to be applied in accordance with R v Lambert [2002] 2 AC 545. The statutory reference to the defendant proving absence of belief or reasonable suspicion imposed an evidential burden, not a legal burden. Once sufficient evidence was raised, the Crown retained the legal burden of proving that the defendant knew or suspected that the substance was a controlled drug.

3. If a judge leaves both the evidential issue and the Crown’s legal burden to the jury, the direction must explain, in intelligible terms, the distinction between them. It must explain that the evidential burden may be discharged on the balance of probabilities, whereas the Crown must make the jury sure of guilt. The direction given did not provide that explanation. Saying that M’s burden did not detract from the Crown’s duty to prove guilt was not readily understandable.

4. The court did not decide the appeal on the asserted prior agreement that the evidential burden would not be left to the jury, since there was no transcript of that discussion and it would be unfair to determine the point against the trial judge. It nevertheless observed that, where possible, agreement that the evidential burden has been met avoids the difficulty of directing a jury on both burdens.

5. McNamara [1988] 87 Cr App R 246 concerned possession in fact only and did not answer the statutory absence-of-knowledge defence. Because introducing drugs into prison was serious, the proper course was a retrial rather than ending the proceedings.

• Court of Appeal (Criminal Division) — allowed the appeal in [2007] EWCA Crim 3228, quashed the conviction and ordered a retrial on both counts.
• Crown Court — M was convicted before HHJ McKittrick and sentenced to 30 months’ imprisonment. The lower-court citation is not stated in the judgment.