S & H v R

Serious Crime Act 2007 section 46 applies where an act is capable of encouraging or assisting more than one specified offence and the defendant believes that one or more will be committed, without a belief as to which. It does not extend to an offence which the defendant merely believes might be committed.

A conviction must be by reference to an identified specified or permissible alternative offence. The defendant must have the required belief that the act will assist that offence and that it will be committed with the necessary fault. Separate section 46 counts are the proper practice where a trial is necessary. Evidence has to do with the alleged facts of an offence under section 98(a) where it forms part of the proof of its factual elements, although admissibility remains case specific.

S and H appealed from preparatory rulings of HHJ Gold QC in the Crown Court at Maidstone. They were charged under section 46 of the Serious Crime Act 2007 with supplying chemicals and pharmaceuticals allegedly intended as cutting agents for Class A or Class B drug supply offences.

They contended that section 46 was too vague and uncertain to be compatible with Articles 6 and 7 of the European Convention on Human Rights. They also challenged the admission of evidence concerning customers whom the prosecution alleged were drug dealers. The central issues were the proper construction of section 46 and whether the customer evidence had to do with the alleged facts of the charged offence.

1. The appeals were dismissed. The court upheld the rejection of the compatibility challenge, although not all of the judge's reasons, and upheld the admission of the customer evidence.
2. Section 46 of the Serious Crime Act 2007 is not vague or uncertain when read with the related provisions in Part 2. It is confined to a case in which the prosecution relies on more than one identified offence and the defendant believed that one or more of them would be committed, while having no belief as to which. The provision cannot be expanded to cover an offence which the defendant thought only might be committed.
3. For a conviction by reference to a particular specified offence, the defendant must have believed either that offence would be committed, or that one or more of the specified offences would be committed without knowing which. The defendant must also have believed that the act would encourage or assist that particular offence, and must have had the mens rea required by section 47(5) in relation to it. Subjective recklessness is sufficient where section 47(5) so provides, but the recklessness concerns the defendant's own state of mind, not that of the prospective principal offender.
4. Sections 57 and 58 require guilt to be determined by reference to a specified offence or a permissible alternative offence. The jury cannot simply return an undifferentiated verdict of guilty under section 46 where differently punishable specified offences are alleged. Separate section 46 counts should always be used if the case proceeds to trial, although a failure to do so does not itself make a conviction unsafe. The court hoped that the count would be amended to separate Class A and Class B drug offences.
5. The customer evidence was admissible under section 98(a) of the Criminal Justice Act 2003. The phrase concerning evidence which has to do with the alleged facts of the offence is wider than the formal elements of the offence. It includes evidence by which those elements may be proved. Evidence that customers were drug dealers could bear on the purpose of the supplies, their capacity to assist drug supply, and the appellants' beliefs. However, evidence of a customer's criminal history which could not properly support an inference of the defendant's knowledge must be excluded or disregarded under an appropriate jury direction.

• Court of Appeal (Criminal Division) — dismissed S and H's appeals against the preparatory rulings.
• Crown Court at Maidstone — HHJ Gold QC rejected the challenge to section 46 of the Serious Crime Act 2007 and admitted customer evidence under section 98(a) of the Criminal Justice Act 2003.