Clarke, Re

Under Misuse of Drugs Act 1971, section 28(2) must be read as imposing an evidential, rather than legal, burden on an accused who asserts lack of knowledge or suspicion. A defective reference to a legal burden will not render a conviction unsafe where the directions, read as a whole, repeatedly require the prosecution to make the jury sure of the accused’s knowledge or suspicion.

A jury may be left an alternative verdict of simple possession where it could find knowledge of drugs but remain unsure of an intent to supply. The judge need not relate every feature of the evidence to that alternative where the route to verdict and directions adequately leave the issue to the jury.

The applicant was convicted at Manchester Crown Court of possessing 980 grams of heroin with intent to supply and was sentenced to eight and a half years’ imprisonment. The prosecution relied on telephone evidence, his meeting with a participant in a drug-supply conspiracy, and his flight carrying a package containing heroin.

He maintained that he did not know the package contained drugs and that he had acted on instructions to dispose of it. After a delay of seven months and two weeks, he sought an extension of time and leave to appeal against conviction. He alleged misdirection on the burden of proof under section 28(2) of the Misuse of Drugs Act 1971 and failure properly to leave simple possession as an alternative verdict.

1. The application for an extension of time and for leave to appeal against conviction was refused. Although the delay was fully explained and would have been extended if the conviction were arguably unsafe, neither ground disclosed an arguable basis for treating it as unsafe.
2. Section 28(2) of the Misuse of Drugs Act 1971 had to be read, consistently with R v Lambert [2002] 2 AC 545, as imposing only an evidential burden on an accused who asserted lack of knowledge or suspicion. The trial judge’s explanation that the applicant had to prove that matter on the balance of probabilities was therefore inaccurate, because it described a legal burden.
3. That error was immaterial. The judge expressly and repeatedly directed that the prosecution must make the jury sure that the applicant knew or suspected the package contained illegal drugs. The written route to verdict correctly required acquittal of the charged offence unless the jury was sure both of knowledge or suspicion and of an intention to supply. The directions as a whole could not realistically have led the jury to reverse the burden of proof.
4. The judge also correctly left simple possession to the jury if they were sure of possession with the requisite knowledge but not sure of intent to supply. The applicant’s defence was complete ignorance of the package and was not advanced as a simple-possession case. Nevertheless, the alternative verdict was clearly identified in the oral and written directions. The judge was not required to spell out further how the evidence might bear on that alternative.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 2228, the court refused an extension of time and refused leave to appeal against conviction.
• Crown Court at Manchester: On 27 January 2015, the applicant was convicted of possession of heroin with intent to supply. On 26 March 2015, he was sentenced to eight and a half years’ imprisonment.