202302559 B1 - [2025] EWCA Crim 1149

Summary of the relevant facts:

On 6 August 2020 the appellant completed an online form in which he told Wiltshire Police that he would shortly be starting a business supplying cannabidiol (“CBD”) hemp and oil products with either a zero or a low content of Delta-9-Tetrahydrocannabinol (“THC”). He asserted that all his stock was “fully legal within EU Laws with the content of each product having less than 0.2% THC”. He invited advice on any products he could not stock. The Wiltshire Police did not reply. The appellant then began to operate, and to market via a website, a mail order business.

On 19 October 2020 a Customs officer intercepted a package which had been sent from Switzerland to that business and the appellant. It contained a total of about 1.3kg of herbal material, which tested positive for THC.

In the course of the ensuing enquiries by Wiltshire Police, on 20 November 2020 PC Hemns replied to the appellant’s email of 6 August. He wrote that cannabis, and products containing the THC cannabinoid, are class B controlled drugs under the Misuse of Drugs Act 1971 (“MDA 1971”). PC Hemns referred to the “common misconception” that it is legal to supply CBD products which contain no more than 0.2% THC. He quoted Home Office guidance explaining that licences may be issued for the cultivation of cannabis plants with a low THC content for the production of hemp fibre for industrial purposes, or for the obtaining of seeds which would be pressed to make oil; but such licences only apply to the use of seeds and fibre/mature stalks, not to the leaves and flowers which are controlled parts of the plant.

PC Hemns gave the appellant this clear warning:

“From looking at your website, there appears to be the sale of flowers and hash which, although you state fall below the 0.2% THC content, are still covered by the Misuse of Drugs Act and are therefore illegal, and should you continue to sell these, will render you liable for prosecution.”

The appellant nonetheless continued to import and sell CBD products. Further packages were intercepted and found to contain quantities of herbal material.

On 14 January 2021 the appellant was arrested. 70.22 grams of a herbal substance, £3,000 in cash and various CBD products were found at his home. When interviewed under caution, the appellant denied being involved in the importation or supply of illegal drugs and asserted that all the products he supplied were “UK compliant”.