Kenning, R. v

The Court did not decide whether an agreement to aid, abet, counsel or procure the production of cannabis can found a conspiracy charge under Criminal Law Act 1977, section 1(1). It held that the issue raised a potentially viable and unresolved point requiring full argument by both sides.

Leave was also granted on the separate complaint that evidence on the conspiracy counts prejudiced the conviction for possession with intent to supply, and that the summing-up inadequately left the defence to the jury. The Court expressed reservations about that complaint but considered it should be fully argued.

At Derby Crown Court, the applicants were tried on allegations arising from a business selling cannabis seeds and cultivation equipment. The prosecution case was that the applicants conspired to assist, or to counsel, customers to produce cannabis. Mr Fenwick also faced a count of possessing cannabis with intent to supply.

Following convictions, the applicants applied for leave to appeal. Their principal argument was that the alleged agreement did not satisfy section 1(1) of the Criminal Law Act 1977, because no party to the agreement intended personally to produce cannabis and secondary participation was said not itself to be an offence. The Crown wished to advance a contrary common-law and statutory argument. The central issue was whether those grounds should proceed to a full appeal.

1. Leave to appeal against conviction was granted on all grounds. The Court held that the applicants should be permitted to advance, before the full court, their argument about the proper scope of section 1(1) of the Criminal Law Act 1977.

2. The proposed appeal raised a substantive question whether an agreement to aid and abet, or to counsel or procure, the unlawful production of cannabis necessarily involved the commission of an offence by a party to that agreement. On the applicants’ case, the intended producers were customers who were not parties to the alleged agreement.

3. The applicants relied on R v Hollinshead [1985] 1 AC 975. The Court noted that the House of Lords had upheld convictions for conspiracy to defraud, so it had not needed to determine the validity of a conviction for conspiracy to aid and abet. The issue was therefore to be considered afresh if it later arose. The Crown proposed to contend that secondary participation was a common-law offence when the relevant nineteenth-century legislation was enacted, with further statutory analysis.

4. The Court made no determination on that issue. It directed that both sides present full argument to the full court.

5. Mr Fenwick’s separate grounds concerning his conviction for possession with intent to supply also required full argument. Although the Court had reservations about their strength, it considered that the alleged prejudicial spill-over from the conspiracy evidence and the adequacy of the summing-up should be considered at the appeal hearing.

6. Mr Kenning was granted unconditional bail in respect of these offences. Questions concerning representation orders were left open to written application after the Crown’s case had been formulated.

• Court of Appeal (Criminal Division): Granted the applicants leave to appeal against their relevant convictions following full argument.
• Derby Crown Court: The applicants were convicted on 2 November 2007 of conspiracy offences concerning the production of cannabis. Mr Fenwick was also convicted of possession of cannabis with intent to supply. Sentences were imposed on 10 and 11 January 2008.