Sadique v R

Section 46 of the Serious Crime Act 2007 creates a distinct offence of encouraging or assisting one or more offences. It applies where a defendant believes that one or more specified offences will be committed and that the act will assist them, even though the defendant has no belief about which particular offence will occur.

An indictment may therefore charge a section 46 offence by reference to more than one offence. It need not be recast as separate section 45 counts merely because the offences include different classes of controlled drug. The count must give fair notice of the alleged criminal conduct. Directions are sufficient when, read in their context, they require belief that offences will be committed rather than mere awareness of a possibility.

The appellant operated a national business supplying chemicals, including benzocaine and lignocaine. The Crown alleged that he supplied them as cutting agents to persons engaged in the supply of class A and class B controlled drugs. He denied knowing of any criminal misuse.

At Maidstone Crown Court, before HH Judge Gold QC and a jury, he was convicted under section 46 of the Serious Crime Act 2007 and sentenced to eight years’ imprisonment. An earlier procedural appeal, R v Sadique and another [2011] EWCA 2872, had upheld the validity of section 46 but had made observations about charging practice.

The appeal challenged the scope of section 46, the alleged duplicity and uncertainty of the count, and the adequacy of the summing-up.

1. The appeal against conviction was dismissed. The sentence challenge was also refused.
2. Section 46 creates a third, distinct offence alongside sections 44 and 45 of the Serious Crime Act 2007. The court must give effect to each statutory offence. Section 46 is not confined to a case in which the defendant has no belief at all as to which offence will be committed. It applies where the defendant believes that one or more of a specified number of offences will be committed, but cannot identify which one.
3. The earlier observations in R v Sadique and another [2011] EWCA 2872 did not bind the court on the substantive scope of section 46. They were unnecessary to that earlier procedural decision and rested on an incorrect incorporation of a section 45 ingredient into section 46.
4. The statutory language and the ancillary provisions permitted a single section 46 count referring to class A and class B drug-supply offences. The Crown had to prove that the appellant supplied chemicals capable of assisting such offences; that he believed his supply would encourage or assist one or more of them; and that he believed the chemicals would be used for that purpose. It did not have to prove a belief about the precise drug offence ultimately committed. The count gave adequate notice, was not duplicitous, and was not uncertain.
5. DPP v Maxwell [1978] 1 WLR 1350 HL illustrated the same principle. Assistance may be given in contemplation of one of a limited number of offences without knowledge of the precise offence, target or means selected.
6. The jury directions, read as a whole and against the real issue at trial, required belief that the chemicals would be used to assist the onward supply of class A or class B drugs. They did not permit conviction on the basis of a mere possibility. The eight-year sentence was not excessive in view of the scale, duration and knowing criminal misuse of the business.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction and refused the sentence challenge.
• Crown Court at Maidstone: On 21 February 2012, HH Judge Gold QC convicted the appellant under section 46 of the Serious Crime Act 2007 and imposed eight years’ imprisonment. During the pre-trial proceedings, an earlier appeal upheld the preparatory ruling in R v Sadique and another [2011] EWCA 2872.