Dang & Ors v R

An agreement to sell equipment which may be used unlawfully does not itself constitute statutory conspiracy. However, an agreement to supply equipment with the shared intention that another will use it to produce cannabis is a conspiracy to be concerned in production under Misuse of Drugs Act 1971, section 4(2)(b). The supplier is a principal participant in that offence, not merely an aider or abettor.

An earlier acquittal on a different charge is generally irrelevant at a later trial, unless unusual circumstances make disclosure necessary for fairness. In sentencing, a court must apply the relevant guideline, but may reflect exceptional scale, aggravating features and totality when fixing a just and proportionate sentence for separate conspiracies.

Nine appellants challenged convictions and/or sentences imposed following proceedings at the Central Criminal Court before HHJ Hone QC. The prosecution alleged two large-scale cannabis conspiracies: one to supply equipment intended for use by others in cannabis production, and another to produce cannabis directly. Certain appellants also faced charges arising from an attack on occupants of a car thought to be connected with surveillance.

The conviction appeals challenged the legal validity of count 1, the exclusion at a retrial of an earlier acquittal on count 2, and the joinder and sufficiency of evidence on the false-imprisonment and criminal-damage counts. The sentence appeals principally challenged the starting point adopted for leading participants under the Sentencing Council’s Drugs Offences guideline.

1. Conviction challenges. The renewed applications for leave to appeal against conviction were dismissed. Count 1 disclosed a valid statutory conspiracy. The prosecution had to prove an agreement that cannabis would be produced by others with the conspirators’ assistance, and that each defendant joined it with the specific intention that equipment supplied should and would be so used. Mere awareness that equipment might be used to grow cannabis was insufficient.

2. A person concerned in production contrary to section 4(2)(b) of the Misuse of Drugs Act 1971 is a principal offender. The offence is distinct from aiding and abetting. If the intended agreement was carried out and cannabis was produced using equipment supplied for that purpose, it would necessarily involve the substantive offence. Section 1(2) of the Criminal Law Act 1977 did not apply on these facts.

3. The earlier acquittal of Johnson on the separate production conspiracy was irrelevant to his retrial on count 1. The issues for the respective juries were different, and the prosecution neither alleged nor adduced evidence at the retrial that he had participated in count 2. No exceptional unfairness required disclosure of the acquittal.

4. Counts 3 and 4 were properly joined with the conspiracy counts. The alleged attack was probative of the nature of the enterprise and its protection from perceived competition. The evidence was capable of establishing false imprisonment, and the jury directions were adequate.

5. Sentence appeals. The court was minded to dismiss every sentence appeal. The judge had applied, rather than departed from, the relevant sentencing guideline. He could take the increased potency of the cannabis and other significant aggravating factors into account when selecting a starting point. The two conspiracies were separate, and the extraordinary scale, sophistication and output justified a concurrent total sentence outside the usual category 1 range for a single offence, provided that the total remained just and proportionate.

The orders dismissing the sentence appeals were not to take effect until the time for a Supreme Court appeal on the count 1 convictions had expired, or any such appeals had been dismissed.

• Court of Appeal (Criminal Division): In [2014] EWCA Crim 348, dismissed the renewed applications for leave to appeal against conviction and determined that the sentence appeals should be dismissed, with delayed effect pending any Supreme Court appeal on count 1.

• Central Criminal Court: HHJ Hone QC tried and sentenced the appellants on consolidated allegations of cannabis-production conspiracies and, for certain appellants, false imprisonment and criminal damage.