202302559 B1 - [2025] EWCA Crim 1149

The criminal proceedings:

The appellant was charged on an indictment containing six counts. On count 1, he was charged in relation to “certain goods, namely a quantity of herbal cannabis”, with an offence contrary to s170 of the Customs and Excise Management Act 1979 (“CEMA 1979”) of fraudulent evasion of the prohibition on importation imposed by s3(1) of the MDA 1971. This related to the 1.3kg of herbal material seized on 19 October 2020 (see paragraph 3 above). Testing showed that some of the material had a THC content of 1%, some a THC content of less than 1%.

Counts 2, 3, and 4 charged similar offences in relation to herbal material seized on dates between 20 October 2020 and 11 January 2021. In each case, the quantity of herbal material was in excess of 1kg. In count 2, the relevant goods were “a quantity of herbal cannabis and a quantity of cannabis resin”. In counts 3 and 4, the relevant goods were “a quantity of herbal cannabis”. Testing of samples showed THC levels of less than 1% in each case.

Counts 5 and 6 related to the items found at the appellant’s home on 14 January 2021 (see paragraph 7 above). Count 5 charged him with possession with intent to supply of a quantity of cannabis, contrary to s5(3) of the MDA 1971. The THC content was not tested. Count 6 charged him with possessing criminal property, namely a quantity of cash.

The appellant was represented by solicitors and counsel, Mr Normanton. In view of criticisms made of his former legal representatives, the appellant was invited to, and did, waive his legal professional privilege in relation to the advice he received.

The appellant initially pleaded not guilty to all counts. However, on 22 November 2022 he indicated that he was willing to plead guilty to counts 2-5 on a particular basis, and sought a Goodyear indication as to sentence.

The basis of the proposed pleas was, in summary, as follows:

The appellant had initially believed it to be legal to sell products with “a very low level of THC (1%)”.

After receiving PC Hemns’ email of 20 November 2020 he “made other enquiries, including online research” and reached the view that because others were selling the same product, it was acceptable to do so.

He accepted, however, that he was “left with a suspicion about the illegality of the product” which he tried to ignore as he continued to import and sell the product.

He asserted that the product “did not have any psychoactive effect, containing less than 1% THC”.

That basis was acceptable to the prosecution, and the judge gave an indication that if guilty pleas were entered at that stage, the total sentence would not exceed 2 years’ imprisonment, suspended. The appellant pleaded guilty to counts 2-5. The prosecution offered no evidence on count 1 (relating to an importation before PC Hemns’ warning), and count 6 was ordered to lie on the file. Sentencing was adjourned.

It should be noted that before he entered those guilty pleas, the appellant signed an endorsement saying that he had decided to plead guilty to counts 2-5 because he had received the indication as to sentence. He confirmed that he had taken the decision “on the basis of advice but also of my own free will”.

On 23 February 2023 the appellant was sentenced as we have stated in paragraph 1 above.