R v Eleanor Margiotta & Ors

Where factual findings establish that cannabis material is raw hemp within the common organisation of the market in hemp, the domestic prohibition on its importation engages Article 34 TFEU. The prohibition must then be capable of justification under Article 36 TFEU.

An appellate court should not determine for the first time an Article 36 justification which the prosecution neither advanced nor supported with evidence below, particularly where this would be unfair to defendants. The court will also decline, in an unsuitable and insufficiently argued criminal case, to decide whether to depart from retained CJEU authority.

The respondents operated a business importing from Italy and selling Cannabis sativa plant material, including female flowering heads. The material contained no more than 0.2% THC, but was cannabis and a Class B controlled drug under domestic law.

The Crown Court at Ipswich stayed the prosecution. The Recorder held that the material was an agricultural product within Article 34 TFEU, that the domestic criminal prohibitions required Article 36 justification, and that no such justification had been established.

The prosecution sought permission to appeal under Part 9 of the Criminal Justice Act 2003. It contended that Article 34 did not apply, that the prohibition was justified by Article 36, and alternatively that the court should depart from retained CJEU authority.

1. The appeal was dismissed. Leave was granted on Ground 1, but the Recorder was right on the factual findings made below to hold that Article 34 TFEU applied. The material had been found to be raw hemp and an agricultural product within the relevant EU regulations. Hammarsten established that the common organisation of the market in hemp precluded equivalent national legislation, subject to Article 36 justification. The domestic scheme hindered access to the United Kingdom market for cannabis plants with THC levels not exceeding 0.2%.

2. The court did not hold that every cannabis product with a low THC level fell within Article 34. It recognised force in the prosecution's arguments based on the definition of cannabis in the Single Convention and the distinction between flowering heads and CBD oil. Those arguments could not overcome the effect of the applicable EU regulations and the CJEU authorities on the Recorder's unchallenged findings.

3. Leave was refused on Ground 2. The prosecution had not advanced an Article 36 case, or laid the necessary evidential foundation, before the Recorder. In light of section 67 of the Criminal Justice Act 2003, it was neither appropriate for the appellate court to decide that argument for the first time nor fair to the respondents, who had been charged in 2019.

4. Leave was also refused on Ground 3. The court had not decided Ground 1 solely by reference to BS, CA. The issue whether to depart from retained CJEU case law was unnecessary, underdeveloped, and arose in a context where certainty in the criminal law was especially important. The subsequent loss of direct effect of Articles 34 and 36 reinforced the conclusion that this was not an appropriate case to decide the point.

5. Pursuant to section 61(3) of the Criminal Justice Act 2003, the respondents were acquitted on both counts.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 759, the court dismissed the prosecution's appeal and application for leave to appeal, save that it granted leave on Ground 1 before dismissing that ground on its merits. It ordered the respondents' acquittal.
• Crown Court at Ipswich: On 18 April 2023, the Recorder stayed the prosecution as an abuse of process. He held that, having regard to Articles 34 and 36 TFEU, the charged conduct could not be criminalised on the material before him.