Appeal court quashes hydroponic cannabis convictions

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Appeal court quashes hydroponic cannabis convictions: No proof that equipment was used to cultivate drug

 

Relief for firms operating in legal grey area

Duncan Campbell Monday July 14, 2008

The Guardian UK

<http://www.guardian.co.uk/society/2008/jul/14/drugsandalcohol.law>

 

A court of appeal decision has shone a light on the homegrown cannabis industry. The quashing of the convictions of three men involved in hydroponics comes at a time when cultivation of cannabis in the UK is at record levels.

 

In January, three men who worked for a hydroponics company in Derby were convicted at Derby crown court of conspiracy to aid and abet the production of cannabis.

 

David Kenning was jailed for 21 months, his employee Paul Blackshaw received a suspended sentence and his business partner, Paul Fenwick, was jailed for three years for conspiracy to aid and abet and counsel production and possession of the drug.

 

It was the prosecution's case that Kenning and Fenwick, trading through their now defunct firm, had supplied equipment to cannabis growers, reasonably foreseeing that the items would be used illegally. But it was not proved that anyone had used the equipment to grow cannabis.

 

But in the appeal court judgment, published last week, Lord Phillips, the lord chief justice, ruled that the offences of conspiracy to aid and abet and counsel the production of cannabis were "unknown to law" and had to be quashed. "There can be no conviction for aiding and abetting, counselling or procuring, unless the offence is shown to have occurred," he said. "It is not an offence to attempt to aid and abet, counsel or procure the commission of an offence."

 

The case has highlighted the legal grey areas in which the suppliers of such equipment work at a time when homegrown cannabis is booming.

 

Harry Shapiro, of the charity Drugscope, estimated that between 60% and 80% of cannabis in Britain is homegrown, up from 11% a decade ago. While much of this is professionally produced in warehouses, some is cultivated for private consumption. Although it is legal to sell the high-powered lights and growing systems, it is not legal to assist in growing cannabis.

 

Niamh Eastwood, head of legal services at the drugs information and advice agency Release, which advised the three men, welcomed the ruling. She added that there was concern among stores selling such equipment over where they stood legally. "What is worrying is that people engaging in a legitimate business are still unsure of what the law is," she said.

 

There are many legitimate reasons for buying and selling hydroponics equipment. Many companies highlight how city dwellers can have the satisfaction of growing crops such as strawberries.

 

 

Regina v Kenning Regina v Blackshaw Regina v Fenwick

Court of Appeal, Criminal Division

Published July 10, 2008

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mrs Justice Dobbs and Mr Justice Underhill

Judgment June 24, 2008

The WLR Daily

The Incorporated Council of Law Reporting (ICLR)

<http://www.lawreports.co.uk/WLRD/2008/CACrim/jun0.3.htm>

 

CRIME — Aiding and abetting — Conspiracy — Appellants charged with conspiracy to aid and abet production of controlled drug — Whether agreement to aid and abet capable of constituting criminal conspiracy — Criminal Law Act 1977 (c 45), s 1

 

An agreement to aid and abet an offence was not capable of constituting a criminal conspiracy.

 

The Court of Appeal, Criminal Division, so held in allowing appeals by David Kenning, Paul Blackshaw and Paul Fenwick against their conviction at the Crown Court at Derby before Judge David Price and a jury on 2 November 2007 for conspiracy to aid and abet production of a controlled class C drug and, in Blackshaw and Fenwick’s case, for conspiracy to counsel the production of a controlled class C drug, contrary to s 1 of the Criminal Law Act 1977.

 

LORD PHILLIPS OF WORTH MATRAVERS CJ, giving the judgment of the court, said that Kenning and Fenwick were partners in a business, the Hydroponic Centre, where Blackshaw occasionally worked. Items purchased from the business had been used by purchasers to grow cannabis. However, those items might equally have been used to grow plants that could lawfully be grown. There was thus no basis upon which the appellants could have been charged with aiding and abetting the production of cannabis on the simple basis that they had sold the items in question.

 

The prosecution decided that the answer to their problem was to bring charges in the form that they did. The appellants submitted that a statutory conspiracy could not be committed unless the acts which the conspirators themselves agreed to do would, if carried out, result in the commission of a criminal offence. They contended that the offence of conspiring to aid and abet was unknown to law, relying on the Court of Appeal decision in R v Hollinshead [1985] AC 975.

 

The prosecution contended that in the House of Lords in R v Hollinshead Lord Roskill expressly left open the question of whether the Court of Appeal had been correct to rule that an offence of conspiracy to aid, abet, counsel or procure contrary to s 1 of the 1977 Act was a legal impossibility and he relied upon a painstaking analysis of the common law origin of aiding, abetting, counselling and procuring to argue that that was an offence that was and always had been known to law.

 

Whether the reasoning of the Court of Appeal in Hollinshead remained binding might be a matter for debate. However, their Lordships endorsed that court’s conclusion that an agreement to aid and abet an offence was not in law capable of constituting a criminal conspiracy under s 1 of the 1977 Act. It followed that the indictment had charged offences unknown to law and the convictions had to be quashed.

 

Appearances: David Matthew (assigned by the Registrar of Criminal Appeals) for Kenning; Harry Bowyer (assigned by the Registrar of Criminal Appeals) for Blackshaw; James Beck (assigned by the Registrar of Criminal Appeals) for Fenwick; Timothy J Spencer QC and Andrew Peet (Crown Prosecution Service, Deby) for the Crown.

Edited July 14, 2008 by grace

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origin: guardian.co.uk/commentisfree/2008/jul/20/drugspolicy.drugsandalcohol

20th July 2008

 

 

 

This volte-face on cannabis is iniquitous and ignorant

 

Reacting to media hype, Jacqui Smith wants to be seen to be tough on drugs. But her new approach is 'reefer madness'

All comments (99)

 

 

 

Last week, the court of appeal overturned the convictions of three people working in a business selling hydroponic growing equipment, on charges of "conspiracy to aid and abet the production of cannabis". You can be forgiven for not recognising this offence for one simple reason – it does not exist. However, such was the anti-cannabis zeal of the judge in Derby presiding over the original case, he happily sent one of the men, David Kenning, to prison for nearly two years.

 

Cannabis is a certainly a harmful drug that can cause dependency and exacerbates existing mental health problems. But since David Blunkett's pragmatic decision in 2004 to regularise drug laws with the existing police practice of issuing warnings, the media have deliberately and wildly exaggerated the dangers of "weed". The government has abandoned its reason and thrown its lot in with hysterical and largely ignorant commentators. The figures used by the home secretary Jacqui Smith in May to justify "popular support" for a volte-face to class B concealed that 32% of the public support making it a class A drug alongside heroin and crack.

 

Such polls serve to underline the public's unqualified confusion about the drug classification system as a whole. Charles Clarke, when briefly home secretary, grasped this point when he commissioned a review of the whole ABC system. His successor, John Reid, dropped the review like a burning spliff, and there is no prospect of this rational approach being entertained by Jacqui Smith. In Jacqui's eyes, "rational approach" reads as "soft on drugs". When she made her U-turn announcement, she lent on the disconcerting coalition of support from the Daily Mail, Telegraph and the entire Conservative party. That alone should have told her something.

 

Also hidden in the statement was the bizarre and unworkable pledge to attack the "headshops" selling exotic cigarette papers and Bob Marley posters. Such is New Labour's new-found social orthodoxy, Jacqui Smith barked out the ministerial intention "to curtail the sale and promotion of cannabis paraphernalia" – and "where necessary shut the shops down". The sight of bongs, pipes and chillums for sale may offend Ms Smith's sensibilities but this has been shown by several acquittals in the court of appeal as no place for the law. And it is certainly not a justifiable use of scarce police resources.

 

The police have, in the past, seized cannabis paraphernalia, but that was some years before Britain's problematic drug using population had risen to its current figure of 350,000. There are several of these shops in Camden Town, north London, where there is also a severe crack problem. The government drug strategy since 1998 has been rightly aimed at tackling class A drugs as the overriding priority: cannabis policy is now skewing the strategy.

 

The police were not properly consulted about this latest crusade, and the Association of Chief Police Officers remains "sceptical" about the policy. A spokesman for the government-funded charity DrugScope said the new enforcement regime "would be unlikely to have any measurable impact on cannabis prevalence".

 

Last week also saw the futile attempt to outlaw the sale of cannabis seeds. The government is looking kindly on the 10-minute rule bill sponsored by the Lib Dem MP Tom Brake to make possession of these seeds a serious criminal offence. Brake is worried about the proximity of a headshop in his constituency to a primary school although he could not show any corrupting influence. Again, this is law based on outrage and not rational thinking. The MP Paul Flynn, a veteran drugs campaigner, politely pointed out that in making his case, Brake "did not give any evidence of harm".

 

The other problem in framing this law is cannabis seeds contain no traces of THC, the active ingredient in cannabis. The government could outlaw all cannabis products but that would mean shutting down the multimillion-pound (legal) hemp business making oils, shampoos, maps, ropes and clothing. There are also several thousand multiple sclerosis sufferers who purchase seeds to grow plants solely for their own palliative care. They would all have to seek illegal supply, but most buy over the net in any case.

 

Of course, this flurry of political activity on cannabis would be more understandable if the government were responding to a rising tide of consumption – but cannabis use, according to the British Crime Survey, has been falling since 1996.

 

"Wacky" Jacqui Smith's intentions on cannabis enforcement are certainly justifying the media hysteria about the drug. She herself admitted to using cannabis "a few times" at university, but if she had been caught in possession of it, she would have a criminal record and would certainly not now be a MP, let alone home secretary. By January, she will have re-introduced that iniquitous policy