McGee, R v

For an offence under section 8(b) of the Misuse of Drugs Act 1971, the prosecution must prove that the prohibited activity, namely the supply of a controlled drug, actually took place on the premises. Evidence that drugs were stored, prepared or packaged there with an intention to supply is insufficient. The prosecution bears that burden; the occupier need not disprove that supply occurred. A conviction cannot stand where this essential element has no evidential basis.

The appellant, the owner and occupier of a house in which her son lived, was convicted in the Crown Court at Kingston upon Thames of knowingly permitting the premises to be used for the supply of Class A drugs, contrary to section 8(b) of the Misuse of Drugs Act 1971. Drugs, cutting agents and equipment associated with drug preparation were found at the property.

Her defence was that she knew nothing of drug processing or supply. On appeal, she contended that the jury had not been directed to decide, and the prosecution had not proved, the separate essential element that cocaine had actually been supplied on the premises.

1. Appeal allowed. The conviction was quashed because an essential element of the offence had not been proved.
2. Section 8(b) requires proof that the occupier knowingly permitted the supply of a controlled drug to take place on the premises. Knowledge, including deliberate blindness, is not the only issue. The fact of supply on the premises is a separate and necessary element.
3. The court followed the analysis in R v Auguste [2003] EWCA Crim 3329, concerning section 8(1)(d) of the Misuse of Drugs Act 1971. An intention or willingness to permit the prohibited activity does not suffice unless that activity actually occurred. The same construction applies to supply under section 8(b).
4. The evidence strongly supported an intention to supply drugs to third parties. It did not, however, establish that any supply occurred on the appellant's premises. Storage, cutting and packaging for a future supply did not prove supply there; the statutory language was not satisfied by supply merely intended to be made from the premises.
5. The prosecution could not answer that deficiency by saying that the appellant might have called her son to explain the arrangements. The burden remained on the prosecution. The separate appeal against sentence therefore required no determination.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2012] EWCA Crim 613.
• Crown Court at Kingston upon Thames: On 29 November 2011, convicted the appellant of knowingly permitting premises to be used for the supply of Class A drugs, contrary to section 8(b) of the Misuse of Drugs Act 1971, and imposed 18 months' imprisonment.