202302559 B1 - [2025] EWCA Crim 1149

Ground 1:

The appellant submits that the decision in Margiotta, that it is for the Crown to prove either that the imported material falls outside art. 34, or that the restrictions in the MDA 1971 were justified under art. 36, is correct, and is not undermined by the decision (in a different jurisdiction and in a different context) in Bogusas.

The appellant submits that the prosecution failed to adduce evidence to prove, contrary to the appellant's contention, that the THC quantity of the plant material which he imported was more than 0.2%. He submits that, throughout the period covered by the indictment, he had a right to import low THC cannabis, and that the blanket prohibition in the MDA 1971 cannot replace the balancing and proportionality exercise required by art. 36 of the TFEU. Alternatively, he submits, the minimal quantity of THC was such that the plant material could not be said to amount to a controlled drug. Further, if the appellant did not have a continuing right to import and sell the plant material, then the UK’s withdrawal from the European Union has inadvertently criminalised such conduct, which is contrary to principle.

The respondent submits that the long-established regime in England and Wales relating to controlled drugs was not eroded by the TFEU. It is submitted that the decision in Margiotta should be confined to its own facts, or alternatively that it should be treated as a decision made per incuriam, because Bogusas was not cited to the court and the principles stated in Bogusas were not considered. The respondent submits that arts. 34 and 36 of the TFEU relate to agricultural products and narcotic drugs, but the MDA 1971 relates to controlled drugs, and the THC content is irrelevant to the classification of cannabis and cannabis resin as controlled drugs.

The respondent relies on Boyesen (see paragraph 24 above) as establishing that if a controlled drug is “visible, tangible and measurable”, as was the case here, a de minimis argument cannot afford a defence. The respondent therefore submits that the plant material imported and sold by the appellant was cannabis, whatever its THC content.

The respondent recognises that Regulation (EU) 1307/2013 linked hemp cultivation to a THC limit. The respondent also accepts that the case law of the CJEU gives a narrow scope to the exception provided by art. 36 of the TFEU, requiring Member States to demonstrate a genuine threat to public health:

“It is for the national authorities which invoke it to demonstrate in each case, taking account of the results of international scientific research, that their legislation is necessary in order effectively to prevent the interests referred to in that provision, and, in particular, that the marketing of the products in question poses a genuine threat to public health that must undergo an in-depth assessment”: see BS, CA (C-66318) EUC2020938; [2021] 2 CMLR 5 at [87]

The respondent acknowledges that such an exercise was not carried out in this case, but submits that the appellant cannot rely on the decision in Margiotta because there was no evidence showing that any of the imported cannabis had a THC level not exceeding 0.2%. Moreover, the appellant by his guilty pleas accepted that the plant material which he imported was a controlled drug.

The respondent further submits that since 11pm on 31 December 2020, as a result of the Prohibition on Quantitative Restrictions (EU Exit) Regulations 2020, arts. 34 and 36 of the TFEU no longer have direct effect as a matter of UK domestic law. It follows, it is submitted, that in relation to the January 2021 offences charged in counts 4 and 5, the appellant cannot rely on Margiotta, even if that decision could be said to assist him on counts 2 and 3.