Henderson, R v

A defective or poorly structured summing-up does not make a conviction unsafe if, read as a whole, it sufficiently identifies the real issue, accurately puts the defence, and enables the jury to apply the burden and standard of proof. In a joint charge, a detailed direction on joint enterprise is unnecessary where the decisive issue is whether the defendant knowingly participated in the criminal conduct.

However, for an unusual statutory offence, the jury must be directed clearly on the elements to be proved, the defendant’s alleged participation and state of mind, and the relevant evidence. A failure to give those directions may require the conviction to be quashed. A sale conducted through an English website, dispatched from England and received in England remains a sale in England despite foreign-currency payment or an overseas payment intermediary.

The appellant was convicted at Teesside Crown Court of inciting the cultivation or production of controlled drugs on counts 3 to 5, and of selling a medicinal product without marketing authorisation on count 8. The prosecution alleged that he knowingly assisted his absent brother in operating businesses which marketed and sold the relevant products.

He was sentenced to nine months’ imprisonment, suspended for two years, with unpaid work, supervision and a prosecution costs order. On appeal, he challenged the sufficiency of the evidence and the adequacy of the trial judge’s summing-up. He also contended that the BZP sale on count 8 was outside the United Kingdom and that the directions on that count were inadequate.

1. The appeal was allowed in part. The convictions on counts 3 to 5 were safe and remained undisturbed. The conviction and sentence on count 8 were quashed because the jury directions on that count were inadequate.

2. There was ample evidence capable of proving that the appellant knowingly participated in the business’s unlawful activities. His position as director and company secretary, daily presence at the premises, involvement in sales and specific emails supported that conclusion. The trial judge was therefore entitled to reject the submission of no case to answer on counts 3 to 5.

3. The summing-up on counts 3 to 5 was poor, unstructured and omitted matters which should ordinarily have been addressed clearly. Nevertheless, read as a whole, it accurately identified the appellant’s defence that he was unaware of illegality, distinguished his alleged role from that of his brother, and made clear that the prosecution had to prove knowing participation. The jury would also have understood that emails not sent or received by the appellant could not establish his responsibility. In light of the compelling evidence, the verdicts were inevitable and not unsafe.

4. A complex direction on joint enterprise was unnecessary on these facts. The essential issue was whether the appellant knowingly joined in his brother’s criminal conduct, and the directions sufficiently focused the jury on that issue.

5. The territorial submission under regulation 7(4) of the Medicines for Human Use (Marketing Authorisation) Regulations 1994 failed. The products were ordered through an English website, dispatched from the English business premises and received in England. Payment in New Zealand dollars through a New Zealand intermediary did not place the sale outside the jurisdiction.

6. On count 8, however, the judge failed to explain with sufficient clarity what the prosecution had to prove, how the appellant was alleged to have participated, what state of mind was required, and what evidence bore on those questions. For this unusual statutory offence, those omissions rendered the conviction unsafe.

• Court of Appeal (Criminal Division): Allowed the appeal in part. It quashed the conviction and sentence on count 8 but held the convictions on counts 3 to 5 safe.

• Teesside Crown Court: The appellant was convicted by a jury on 3 June 2010 of counts 3, 4, 5 and 8. On 29 June 2010 he received a total sentence of nine months’ imprisonment, suspended for two years, with unpaid work, supervision and costs.