Hussain, R v

For possession with intent to supply under section 5(3) of the Misuse of Drugs Act 1971, an intended transfer to a courier for onward delivery is not itself a statutory supply. A supply to a customer abroad also falls outside section 4(1), which has territorial effect within the United Kingdom.

Where the evidence permits a finding that the intended customers were abroad, the jury must be directed that such an intention cannot establish the charged offence. Failure to give that direction renders convictions unsafe. When convictions forming part of an overall concurrent sentencing exercise are set aside, the remaining sentences must be reconsidered to achieve a just totality.

The appellant was convicted at Kingston Crown Court of five counts of possessing Class C drugs with intent to supply and seven trademark offences. He received concurrent terms of four years’ imprisonment on each count. He appealed the drug convictions and sought leave to appeal against sentence.

He accepted possession of the drugs in counts 2, 3 and 6 but said that he did not know they were controlled. He also contended that, if he intended any supply, it was to customers outside the European Union through professional couriers. The central issue was whether that intended course could amount to supply in contravention of section 4(1) of the Misuse of Drugs Act 1971, and whether the jury had been adequately directed.

1. The appeal against conviction was allowed on counts 1 to 4 and 6. The jury had not been directed that an intention to supply only customers outside the jurisdiction could not constitute the charged offence. The evidence allowed the possibility that the jury accepted that account but nevertheless convicted. The convictions were therefore unsafe.

2. An intended handover to a professional courier for onward delivery was not a statutory supply. Applying R v McGuinness [1987] 1 AC 303, the essential question is whether the transfer is for the purposes of the transferee. A courier’s possible profit did not alter its custodial role or make the handover a supply.

3. Applying R v Seymour [2008] 1 AC 713, section 4(1) of the Misuse of Drugs Act 1971 is territorial. A transfer by the courier to a customer abroad would not be a supply in contravention of that provision. There was no viable distinction between the drug counts on this issue, despite the appellant having advanced different factual defences on some counts.

4. Subordinate legislation exempted the appellant from criminal liability for simple possession on the relevant counts except count 1. The court substituted a conviction for simple possession of a Class C drug on count 1. The trademark convictions remained.

5. The sentence appeal was allowed. The court quashed all sentences and imposed concurrent terms of three years’ imprisonment for each trademark offence and 12 months’ imprisonment, concurrent, for count 1. The original four-year concurrent sentences reflected totality across offences which no longer stood.

• Court of Appeal (Criminal Division): Allowed the conviction appeal on the drug counts and allowed the sentence appeal, substituting the convictions and sentences described in the order.
• Kingston Crown Court: On 4 June 2008, convicted the appellant of five Class C drug offences and seven trademark offences. On 8 July 2008, imposed concurrent terms of four years’ imprisonment on each count.