202302559 B1 - [2025] EWCA Crim 1149

Relevant provisions of the MDA 1971 and CEMA 1979:

By s2 of the MDA 1971, the expression “controlled drug” includes any substance or product specified in Schedule 2. Cannabinol, cannabinol derivatives, cannabis and cannabis resin are so specified. By s37:

“‘cannabis’ (except in the expression ‘cannabis resin’) means any plant of the genus Cannabis or any part of any such plant (by whatever name designated) except that it does not include cannabis resin or any of the following products after separation from the rest of the plant, namely –

mature stalk of any such plant,

fibre produced from mature stalk of any such plant, and

seed of any such plant;

‘cannabis resin’ mean the separated resin, whether crude or purified, obtained from any plant of the genus Cannabis”

By s3(1), the importation of a controlled drug is prohibited. By s3(2), subsection (1) does not apply to importation in accordance with a licence issued by the Secretary of State.

By s4(1), subject to exceptions which are immaterial to this case, it is an offence to supply or offer to supply a controlled drug to another.

By s5(3), subject to s28, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of s4(1).

In R v Boyesen [1982] AC 768 the House of Lords rejected a submission that the offence of possession of a controlled drug could only be proved if the quantity of the drug was “usable”. At p777C, Lord Scarman said:

“The question is not usability but possession. Quantity is, however, of importance in two respects when one has to determine whether or not an accused person has a controlled drug in his possession. First, is the quantity sufficient to enable the court to find as a matter of fact that it amounts to something? If it is visible, tangible and measurable, it is certainly something.”

So far as is material for present purposes, s28(2) and (3) provide:

Subject to subsection (3) below, in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.

Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused –

shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had any reason to suspect that the substance or product in question was the particular controlled drug alleged; but

shall be acquitted thereof –

if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug …”

So far as is material for present purposes, s170(2) of the CEMA 1979 provides:

Without prejudice to any other provisions of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion –

…

of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment …

he shall be guilty of an offence and may be arrested.”

In R v Datson [2022] EWCA Crim 1248 this court held that on a charge under s170 of the CEMA 1979 the prosecution must prove that the goods in question were subject to a statutory prohibition on importation; that in respect of those goods, there had been a fraudulent (that is, dishonest and deliberate) evasion; that the accused had been involved in that fraudulent evasion; and that the accused had known at the time of his involvement that the goods were subject to a prohibition on importation and that the evasion was deliberate and dishonest. A genuine mistaken belief of law, at the material time, that the goods were not subject to a prohibition was therefore capable of affording a defence to such a charge.