Wednesday Law Report: Knowledge of particular drug was unnecessary

8 October 1998 Regina v Bett Court of Appeal, Criminal Division (Lord Justice Mantell, Mr Justice Gray and Judge Clarke QC) 16 October 1998

WHERE A defendant is charged under section 8(b) of the Misuse of Drugs Act 1971 with permitting premises to be used for the supply of a controlled drug, it is not necessary for the Crown to prove that the defendant knew not only that the supply was taking place but also that he knew the nature of the particular drug in question.

The Court of Appeal dismissed the appeal of Robert Adrian Bett against his conviction of four counts of permitting premises to be used for the supply of controlled drugs.

The appellant was the licensee and manager of a public house. On 25 occasions undercover police officers who visited the premises were able to purchase cocaine, ecstasy, amphetamine and cannabis. The appellant was arrested and charged following an official raid.

The appellant was charged in four counts which were similar in form except that count one related to cocaine, count two to ecstasy, count three to cannabis and count four to amphetamine. He appealed against conviction on the ground, inter alia, that the judge should have directed the jury that it was necessary for the prosecution to prove knowledge of the particular drug referred to in each count before they could convict.

Julian Woodbridge (Registrar of Criminal Appeals) for the appellant; Martin Field (Crown Prosecution Service) for the Crown.

Lord Justice Mantell said that on the face of it, an indictment charging an offence under section 8(a) or (b) of the 1971 Act in relation to a controlled drug without nominating the particular drug involved would seem to be unexceptionable. However, the penalty might vary according to the classification of the drug involved.

It was submitted on behalf of the appellant, therefore, that the naming of the particular drug was a necessary averment in the charge. Although it was unnecessary for present purposes to pronounce on the matter, as counts one to four did, indeed, identify the particular drug, that submission would appear to have powerful support: see R v Courtie [1984] AC 463 and R v Shivpuri [1987] 1 AC 1.

The appellant argued that if the nomination of the particular drug were a necessary factual ingredient of the offence, so it must be that the prosecution had to prove that the appellant knew not only that controlled drugs were being supplied but also in relation to any particular count that it was the drug specified.

Had Parliament intended otherwise, it would have treated offences under section 8 in the same was as offences of supply, production, possession, possession with intent to supply, cultivation, and prohibition of certain activities relating to opium, that is, to bring them within the purview of section 28 of the Act, which made it plain that it was no defence that the accused did not know the nature of the particular drug involved provided always that he knew that the substance was a controlled drug.

Neither of those arguments was well founded. There were many examples of offences where powers of sentence were linked to proof of some factual ingredient of which it was not necessary for the defendant to have knowledge. As to the second argument, counsel for the Crown was right in saying that section 28 of the 1971 Act was a direct response to the decision of the House of Lords in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 which, without the relief offered by section 28, would have rendered absolute the offences to which that section did apply.

Such relief was not necessary in the case of importation offences in which "knowingly" appeared in the statute: the only mens rea necessary for proof of any such offence was knowledge that the goods were subject to prohibition on importation. Similarly, it was not necessary to provide relief by way of section 28 or any other provision to like effect for offences under section 8 because of the decision in R v Souter (1971) 55 Cr App R 403 that the word "permits" connoted "knowledge", and because section 8 itself included the word "knowingly".