202302559 B1 - [2025] EWCA Crim 1149

Analysis:

We begin by recording our acceptance of the respondent’s submission that arts. 34 and 36 ceased to have direct effect in this jurisdiction after 31 December 2020. It follows that the issues relating to the effect of those articles, important to the parties and interesting though they are, are unlikely to come before the courts in this country again. As Mr Fortson KC observed in his impressive commentary at [2023] Crim LR 676, the decision in Margiotta

“… may have a relatively short shelf-life for the purposes of most criminal cases tried in the courts of the UK.”

As to the appellant’s principal argument, that the relevant plant material was not a controlled drug, and his importation and sale of it was therefore not a crime, we observe that it is not immediately apparent why provisions of the TFEU aimed at protecting the common market in raw hemp, intended for use in industrial processing or agriculture, should necessarily be undermined by domestic legislation providing for the control of narcotic and psychoactive drugs. We note that in Criminal proceedings against Hammarsten (see paragraph 30 above) the relevant Swedish legislation had the effect of preventing any cultivation of industrial hemp, and that in BS, CA (see paragraph 34 above) the relevant product was CBD oil which was agreed to have a THC content of less than 0.2%. The factual context of each of those cases was therefore very different from the facts of the present case, concerning the importation of specific quantities of plant material coming within the statutory definition of cannabis.

We therefore think it very regrettable that the parties in Margiotta did not bring the decision in Bogusas (see paragraph 43 above) to the attention of the court. True it is that that decision, reached by a court in another jurisdiction, was not binding on the court in Margiotta. For our part, however, we regard the judgment in Bogusas as providing very strong support for the view that the importation and sale of cannabis did not engage arts. 34 and 36. Bogusas emphasises the principle in Josemans, a decision which was mentioned only briefly in Margiotta at [56] when considering BS, CA. Had Bogusas been cited, and the points of principle raised by it argued more fully, it seems to us that this court in Margiotta may well have reached a different conclusion.

It is not necessary for us to reach any concluded decision as to whether the decision in Margiotta can, strictly, be regarded as reached per incuriam on the basis of the court’s failure to consider a judgment from another jurisdiction. This is because the court in Margiotta itself made clear that it was a decision on the facts found by the judge in that case, in circumstances where the evidence as to the facts was less than satisfactory.

A key feature of the facts found in that case was that the THC content of the plant material concerned was less than 0.2%. It followed that, on the court’s conclusions as to the applicable law, the defendants had not been shown to have committed any crime. But here, the appellant cannot point to any evidence that the plant material he imported had a THC content less than 0.2%. He asserted that it did, but there was no admissible evidence to that effect and the prosecution conceded only that the THC content was less than 1%. Because of the appellant’s guilty pleas, no further evidence was adduced by either party; and no application to adduce fresh evidence was made to this court. It follows that Margiotta can, and in our view must, be distinguished on its facts. For that reason alone, the appellant cannot be assisted by the decision in Margiotta, quite apart from our concern that Bogusas was not cited to the court in Margiotta. The appellant’s reliance on Margiotta depends on a THC level which was proved in that case, but not in this. His principal argument therefore fails.

In relation to counts 3 and 4, it follows from what we have said in paragraph 61 above, that the relevant importations were made after arts. 34 and 36 had ceased to have direct effect in this jurisdiction, and the appellant therefore cannot be assisted by reliance on those articles.

Turning to the appellant’s submissions that his guilty pleas were vitiated by incorrect or insufficient advice, we begin by expressing our thanks to Mr Normanton for the very considerable efforts he made to assist the court. We are conscious that in circumstances such as these, where criticisms are made of previous legal representatives, it can be a time-consuming and difficult exercise for those representatives to provide a detailed account of instructions received and advice given a significant time ago. We are also conscious that there is no public funding for such an exercise. The court is therefore always grateful for the assistance it receives.

We deprecate the attempt initially made by the appellant to blame Mr Normanton for his own decision to enter guilty pleas. We think it telling that, on appeal, that attempt was abandoned; and that although submissions were made about “nuanced” reasons why different advice should have been given, no application was made for Mr Normanton to be cross-examined so that he could respond to those points. We regard grounds 2 and 3 as being wholly without merit, for the following reasons.

First, as is now accepted, Mr Normanton advised the appellant perfectly properly about all matters other than the point which was raised in Margiotta. Mr Normanton is not to be criticised for failing, in the circumstances of this case, to foresee that point.

Secondly, there is no doubt that the appellant was aware that it was open to him to advance either or both of the defences which it is now said would have succeeded, but that he faced the difficulty of the clear warning given by PC Hemns’ email.

Thirdly, if the point which was argued in Margiotta had been present to anyone’s mind in November 2022 (when the guilty pleas were entered), research into it would not of course have led to Margiotta, because that case had not then been concluded in the Crown Court. On the contrary, it would have led to Bogusas, which could not have been regarded as an encouragement to the appellant to argue the point.

Fourthly, the appellant was understandably anxious to avoid the risk of conviction and of a sentence of immediate imprisonment. He therefore positively wanted to avoid the contested trial for which Mr Normanton was prepared, and which would have begun if the appellant had not entered his guilty pleas. Although the appellant asserts that his researches at the time caused him to believe that others were selling similar products and that PC Hemns was therefore expressing “a completely minority view”, it is not difficult to see why he was unwilling to contest a trial on that basis. He must have known that, if he gave evidence of his claimed belief that he was acting lawfully, he would have been severely tested in cross-examination.

Fifthly, even if (hypothetically) Margiotta had already been decided, and the appellant had wanted to maintain his not guilty pleas and argue the same point, the prosecution would in all probability have carried out more detailed testing of samples of the seized material, and the appellant was therefore at risk of there being clear evidence of a THC content of between 0.2% and 1.00%. True it is that further testing might have provided support for a Margiotta argument; but it is impossible to say that his defence would probably have succeeded. As it is, the effect of his guilty pleas was that no further testing was necessary and the samples were destroyed within a short time after the sentencing hearing.

We reject the submission that the guilty pleas were equivocal. They were not. Having been advised, the appellant chose to abandon any possible defence and to enter guilty pleas, and he did so without any qualification. He wished to be, and in due course was, sentenced on a particular basis; but that did not render his pleas equivocal. Neither his legal representatives nor the judge were under any obligation to treat the basis of plea as a reason for not accepting the guilty pleas; and – importantly – the appellant did not want them to do so.

We also reject the submission that the appellant should have been given more encouraging advice as to the strength of the defences which were open to him. For the reasons we have given, he could not properly have been advised that either defence would probably succeed, and his reasons for wanting to avoid a trial would still have existed. He has therefore suffered no injustice at all, let alone the clear injustice required by the principle in Boal.

As to ground 4, we make the initial observation that, as Mr Ray KC rightly recognised, this too is an argument which will not be available in future, as arts. 34 and 36 no longer have direct effect in this country. But even at the time of the appellant’s guilty pleas, it follows from what we have said above that the law, though no doubt unwelcome to the appellant, was not unclear. The importation, possession and supply of cannabis were prohibited by the MDA 1971. That Act clearly defines what cannabis is, in terms which do not depend on THC being present at a particular level (see paragraph 20 above). The appellant now accepts that the herbal material which he imported was cannabis. The appellant was expressly warned that he appeared to be selling products covered by the Act. Instead of seeking further legal advice, or commissioning specific testing of the material he was importing, or applying for a licence, he carried on his business. He did not proceed on the basis that the law was uncertain: he decided that the law was clearly in his favour, and took it upon himself to dismiss PC Hemns as “not knowing what he was talking about”.

It was for those reasons that we rejected each of the grounds of appeal and dismissed the appeal.