Wright, R. v

For an offence under section 5(3) of the Misuse of Drugs Act 1971, the intended supply must relate to the controlled drug of which the defendant is presently in possession. It is insufficient that the defendant intends to cultivate immature cannabis plants, harvest a future crop, and then supply that harvested product.

Immature plants are cannabis within section 37, but that definition does not remove the requirement that possession and the intended supply concern the same thing. The intended supply of a cultivation product may instead bear on sentence for the production offence.

The appellant pleaded guilty at Leeds Crown Court to producing cannabis. Police had found 35 young cannabis plants and cultivation equipment at his home. He maintained that the plants were for his own consumption. A jury convicted him of possessing cannabis with intent to supply, and he received three years’ imprisonment for that offence, concurrent with two years for production.

He appealed against conviction and sentence. The central issue was whether possession of immature cannabis plants, coupled with an intention to grow, harvest and later sell the crop, satisfied section 5(3) of the Misuse of Drugs Act 1971.

1. The appeal against conviction was allowed. The conviction for possession of cannabis with intent to supply was quashed. The appeal against the two-year sentence for production was dismissed.

2. Richards LJ, giving the judgment of the court, held that the appellant possessed cannabis because immature plants fell within the statutory definition in section 37 of the Misuse of Drugs Act 1971. That finding did not determine the separate question under section 5(3).

3. Section 5(3) required an intention to supply the thing possessed. The prosecution case was not that the appellant intended to supply the immature plants. It was that he intended to grow them to maturity, harvest their flowering heads, and supply all or part of the later crop. The intended supply therefore concerned the product of a future cultivation process, rather than the plants then in his possession.

4. There was consequently no case to answer on the possession-with-intent count. The court rejected the Crown’s contention that this construction was unreasonable. The purpose for which cannabis is produced remains relevant to the seriousness of production and can be resolved during sentencing, including through a Newton hearing where appropriate. That approach accorded with R v Auton & others [2011] EWCA Crim 76.

5. The court did not need to decide the remaining conviction grounds. It found no basis to disturb the sentence for production, which was appropriate on the applicable guidance and the facts.

• Court of Appeal (Criminal Division): Allowed the appeal against the conviction for possession with intent to supply and quashed that conviction. Dismissed the appeal against the sentence for production.

• Crown Court at Leeds: Following a jury trial before His Honour Judge Hoffman, convicted the appellant of possession of cannabis with intent to supply and imposed three years’ imprisonment, concurrent with two years’ imprisonment for the admitted production offence.