R v Osman Omar Osman

Section 4(3)(b) and section 4(3)(c) of the Misuse of Drugs Act 1971 create distinct offences. A charge under section 4(3)(b) requires proof that the defendant was concerned in supplying controlled drugs, not merely in making an offer to supply. Supply is a broad concept covering the entire process, not only completed delivery. Whether the evidence establishes supply requires a fact-specific assessment. A direction treating an offer as sufficient is erroneous, but a conviction may remain safe where, on the correct question, the evidence admits only one proper verdict.

The appellant was convicted at Swansea Crown Court of three offences under section 4(3)(b) of the Misuse of Drugs Act 1971, concerning cocaine, ketamine and cannabis. The prosecution case depended on messages found on a mobile phone which the appellant was alleged to have used.

The trial judge directed the jury that, if they were sure the appellant had sent the messages, it was accepted that he was guilty. The jury convicted. On appeal, the issues were whether the evidence proved concern in supplying drugs rather than merely making offers to supply, and whether the judge’s direction rendered the convictions unsafe.

The appeal was dismissed. The court held:

1. Distinct offences. Section 4(3)(b) and section 4(3)(c) of the Misuse of Drugs Act 1971 create separate offences. Where paragraph (b) is charged, the prosecution must prove that the defendant was concerned in supplying controlled drugs. It is insufficient to prove only concern in making an offer to supply. The jury must not receive an either-or direction. This followed the approach in R v Hughes [1980] 81 Cr.App.R 344 and R v Coker [2019] EWCA Crim 420.
2. Meaning of supply. Supply is a broad term. It covers the entire process of supply and is not confined to actual delivery or a past supply, as explained in R v Martin and Brimecome [2014] EWCA Crim 1940.
3. Evidence. A careful, fact-specific assessment is required. The messages here showed available stock, prices and a response requiring immediate delivery. They were not merely an abstract offer which might never be acted upon. The jury were therefore entitled to find that the appellant was actively concerned in supplying controlled drugs.
4. Misdirection and safety. The judge erred by suggesting that concern in making offers was sufficient. Nevertheless, the convictions remained safe because, on the correct legal question, the evidence permitted only one proper verdict.

The appeal accordingly failed and was dismissed.

• Court of Appeal (Criminal Division) — In [2023] EWCA Crim 1560, the court dismissed the appeal and held the convictions safe.
• Swansea Crown Court — Convicted the appellant of three offences under section 4(3)(b) of the Misuse of Drugs Act 1971.