Coker, R. v

Misuse of Drugs Act 1971, section 4(3), creates three separate offences. Section 4(3)(b) concerns participation in an enterprise involving an actual supply of a controlled drug. Section 4(3)(c) concerns participation in an enterprise involving an offer to supply. A jury considering a charge under section 4(3)(b) must be directed only on the former offence. An either/or direction which includes an offer to supply is erroneous. Nevertheless, the conviction will remain safe where the evidence makes the properly charged offence unanswerable and there is no realistic risk that the jury convicted on an impermissible basis.

The appellant was convicted unanimously in the Crown Court at Oxford of being concerned in supplying crack cocaine, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, and of possessing criminal property. He received concurrent sentences of five years and six months' imprisonment on those counts.

He appealed against the conviction for the drugs offence. The trial judge had directed the jury that the prosecution could prove either a supply of class A drugs or an offer to supply them. The appeal raised whether that direction wrongly combined the separate offences in sections 4(3)(b) and 4(3)(c), and, if so, whether the conviction was unsafe.

1. Appeal against conviction dismissed. The jury direction was erroneous, but the conviction was safe on the evidence.

2. Section 4(3) of the Misuse of Drugs Act 1971 creates three separate offences. Following R v Hughes (1985) 1 Cr App R 344, and the analysis accepted in R v Martin and Brimecome [2014] EWCA Crim 1940, section 4(3)(b) requires an actual supply in which the defendant was concerned. Section 4(3)(c) instead concerns being concerned in an offer to supply.

3. There was therefore no place in a direction on a count under section 4(3)(b) for an alternative basis of an offer to supply. The prosecution had to make the jury sure that: there had been a supply of a controlled drug to another contrary to section 4(1); the defendant participated in an enterprise involving that supply; and the defendant knew that the enterprise involved that supply.

4. The direction given wrongly permitted an either/or approach. It risked treating the separate offence under section 4(3)(c) as available on a count charged under section 4(3)(b). The court did not construe section 4(3)(a), nor decide any issue arising where an indictment contains separate alternative counts under sections 4(3)(b) and 4(3)(c).

5. The evidence from the telephones, cash, scales and knife made the case under section 4(3)(b) unanswerable. There was no realistic risk of a non-unanimous or otherwise unsafe verdict. The application for leave to appeal against the sentence for possessing criminal property therefore fell away and was refused.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction and refused leave to appeal against sentence on count 2: [2019] EWCA Crim 420.
• Crown Court at Oxford: on 2 May 2018, convicted the appellant unanimously of being concerned in supplying a class A controlled drug and possessing criminal property, and imposed concurrent sentences of five years and six months' imprisonment.