Baker, R v

The phrase “concerned in the supplying” in section 4(3)(b) of the Misuse of Drugs Act 1971 bears its ordinary, broad meaning. A person who introduces a prospective purchaser to a known and willing supplier, obtains the drug with that person, and expects payment for his own share may be found to be concerned in the supply, even if he is also a consumer.

Judicial shorthand, including participation in an enterprise involving supply, may assist a jury. It must not be treated as replacing or amending clear statutory language. A direction is sound where it leaves the jury to decide, on the evidence, whether the defendant formed part of the process or chain of distribution.

The appellant was convicted by a jury at Kingston Crown Court on two counts of being concerned in supplying heroin, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The deceased had asked him to obtain heroin. He took her to a friend, from whom they obtained heroin which she paid for, on the understanding that he would repay his share. They smoked it together and she later died.

At the close of the Crown’s case, the Recorder rejected a submission of no case to answer. The appellant called no evidence. On appeal, he contended that he was merely a joint consumer and that the Recorder’s self-direction and jury directions wrongly treated him as participating in an enterprise of supply. The central issue was whether there was evidence capable of showing that he was concerned in supplying the drug to the deceased.

1. Appeal dismissed. The convictions were safe. There was ample evidence both to leave the case to the jury and to support its verdicts.
2. The statutory question under section 4(3)(b) of the Misuse of Drugs Act 1971 was whether the appellant was concerned in supplying heroin to the deceased. The provision uses ordinary and sufficiently clear language. It covers a person who introduces someone seeking heroin to a person whom he knows is willing and able to supply it, where they obtain the heroin together, the introduced person pays, and the introducer is to repay the cost of his own share.
3. The Court accepted that the formulation in R v Hughes (1985) 81 Cr App R 344 identified supply, participation in an enterprise involving supply, and knowledge of that enterprise. On the evidence, the Recorder’s direction was unobjectionable even if assessed exclusively by those criteria. The earlier decision did not displace the statutory language.
4. The Court regarded its conclusion as consistent with R v Blake and O’Connor (1979) 68 Cr App R 1, where convictions were upheld on evidence of an intermediary directing prospective purchasers to a supplier. The Recorder fairly left the jury to decide whether the appellant was part of the supply process or chain of distribution. Judicial language used to interpret a criminal statute should not be treated as if it were the statute itself.

• Court of Appeal (Criminal Division)—in [2009] EWCA Crim 535, dismissed the appellant’s appeal against conviction.
• Crown Court at Kingston—on 7 August 2008, a jury convicted the appellant on two counts contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.