Abi-Khalil & Anor, R. v

For an offence under section 4(3)(b) of the Misuse of Drugs Act 1971, supplying has a broad meaning. It covers the entire process of supply and does not require an actual or completed delivery to the intended recipient. Although the person supplied must be another and cannot be a co-defendant in the same count, a count is valid where the alleged process includes onward supply to persons outside that count.

Where the evidence and conduct of the trial clearly establish onward supply, and its scope is not in issue, the absence of an express direction on onward supply does not render a conviction unsafe.

The appellants were convicted at the Crown Court at Snaresbrook of being concerned in supplying cocaine, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, and were each sentenced to nine years’ imprisonment.

The prosecution alleged that the four accused participated in an arrangement under which one kilogram of cocaine was to be transferred through intermediaries to Abi-Khalil for onward distribution. Abi-Khalil maintained that he had arranged only to buy Viagra. Porja denied knowledge of any cocaine supply.

On appeal, they contended that the count was invalid because Abi-Khalil, said to be the immediate recipient, was a co-defendant in it. They also contended that section 4(3)(b) required an actual supply to him. The central issues were the scope of supply alleged at trial and whether an actual delivery was required.

1. The appeals were dismissed. The statutory requirement that the drug be supplied to “another” prevents a count from alleging supply to a co-defendant in that same count. It does not invalidate this count, properly construed, because it alleged a broader process of supply to persons outside the group charged.

2. Section 4(3)(b) of the Misuse of Drugs Act 1971 concerns being involved in supplying a drug. The word supplying is broad and embraces the whole process of supply. It is not confined to an actual delivery or a past completed transaction. Section 37, which includes distributing within supplying, supported that construction.

3. The court followed the approach in R v Martin & Brimecome [2014] EWCA Crim 1940. It explained that R v Hughes (1985) 81 Cr App R 344 did not impose an additional requirement of actual supply. Its reference to actual supply reflected the facts and issue in that case. R v Akinsete [2012] EWCA Crim 2377 added nothing, since it concerned whether supply could be proved by circumstantial evidence.

4. On the facts, one kilogram of cocaine could plainly not have been for Abi-Khalil’s personal use. The indictment, the prosecution case and the text messages showed an intended onward supply to the market. The trial was therefore not confined to dealings between co-defendants. The live issues were knowledge and participation, not the scope of onward supply.

5. No specific direction on onward supply was required because it was not in issue. In any event, the omission could not affect the safety of the convictions. The absence of an actual supply to Abi-Khalil therefore provided no basis for quashing either conviction.

• Court of Appeal (Criminal Division) — The appeals against conviction were dismissed: [2017] EWCA Crim 17.
• Crown Court at Snaresbrook — On 16 October 2015, Abi-Khalil and Porja were convicted of being concerned in supplying cocaine contrary to section 4(3)(b) of the Misuse of Drugs Act 1971 and each received a nine-year sentence.