Jones, R. v

For incitement, the lawful sale of goods capable of illegal use is insufficient. There must be specific evidence of positive words or acts aimed at encouraging the commission of the crime. A jury may infer incitement and intent from the commercial context, practical advice, and the parties’ shared understanding, despite euphemisms and purported disclaimers.

An undercover operation is not an abuse of process where officers do no more than present an unexceptional opportunity to offend. Persistence may be permissible when the circumstances justify it. Production of cannabis remains criminal under section 4(1)(a) of the Misuse of Drugs Act 1971.

James Jones, proprietor of a shop selling smoking paraphernalia and hydroponic equipment, was convicted at Preston Crown Court of four counts of incitement to produce cannabis and sentenced to ten months’ imprisonment. An undercover officer had made test purchases while posing as a novice cannabis grower and received practical cultivation advice.

Jones contended that the operation was abusive entrapment, that there was no case to answer, that evidence of his employee’s convictions was wrongly admitted, and that the summing up was defective. He also appealed his sentence. The central issue was whether the conversations, although framed as advice about tomatoes, provided evidence capable of proving intentional incitement to produce cannabis.

Appeal dismissed. The court upheld both the convictions and the ten-month sentence.

1. The undercover operation was not an abuse of process. Applying R v Looseley; AG’s Ref (No 3 of 2000) [2001] UKHL 53, the question was whether the state had lured the accused into offending rather than merely offered an unexceptional opportunity. In the context of a shop specialising in equipment associated with cannabis cultivation, an officer posing as a prospective unlawful grower could persist in seeking advice. The operation properly tested how the shop operated. Moon [2004] EWCA Crim 2872 was materially different.

2. Production of cannabis contravened section 4(1)(a) of the Misuse of Drugs Act 1971. Selling otherwise lawful equipment was not itself incitement. However, following the approach in Marlow [1997] EWCA 1833 Crim and R v Smith and Turner [2004] EWCA Crim 2187, incitement may consist of positive words or actions aimed at influencing another to commit a crime.

3. There was a case to answer. The jury could find that references to tomatoes were a device to avoid naming cannabis, while the appellant gave a novice practical advice and actively marketed equipment for cannabis cultivation. It could also infer that he intended to incite production, even if he believed that he had avoided legal liability.

4. The employee’s convictions were admissible under section 100 of the Criminal Justice Act 2003 as explanatory evidence with substantial probative value on an issue in the case. Any lack of clarity in the joint-enterprise direction did not render the verdicts unsafe.

5. The sentence was not manifestly excessive. Any adjustment would have been immaterial tinkering.

• Court of Appeal (Criminal Division) — dismissed Jones’s appeals against conviction and sentence: [2010] EWCA Crim 925.
• Preston Crown Court — convicted Jones of four counts of incitement to produce cannabis and imposed ten months’ imprisonment.