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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kenning, R. v [2008] EWCA Crim 1534 (24 June 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1534.html Cite as: [2009] QB 221, [2009] Crim LR 37, [2008] 2 Cr App Rep 32, [2008] EWCA Crim 1534, [2008] 3 WLR 1306, [2008] 2 Cr App R 32

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No. 2007/06255/B2, 2007/06257/B2 2007/06256/B2 Royal Courts of Justice The Strand London WC2A 2LL
		24 June 2008

THE LORD CHIEF JUSTICE:

1. On 15 May 2007, in the Crown Court at Derby, the appellant Paul Fenwick pleaded guilty to counts on two indictments. On the first indictment he pleaded guilty to count 3, which charged him with producing a controlled drug of Class C, namely cannabis. On the second indictment he pleaded guilty to the possession of a firearm without a certificate.
2. All three appellants were subsequently tried in the Crown Court at Derby on the first indictment, the first two counts of which charged them as follows:

"COUNT 1

STATEMENT OF OFFENCE

Conspiracy to aid and abet the production of a controlled drug, contrary to section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

.... on a day between the 1st day of January 2004 and the 3rd day of March 2004 conspired together to aid and abet the commission of an indictable offence, namely the production of a controlled drug of Class C, namely cannabis.

COUNT 2

STATEMENT OF OFFENCE

Conspiracy to counsel the production of a controlled drug, contrary to section 1(1) of the Criminal Law Act 1977.

PARTICULARS OF OFFENCE

.... on a day between the 1st day of January 2004 and the 3rd day of March 2006 conspired together to counsel the commission of an indictable offence, namely the production of a controlled drug of Class C, namely cannabis."

All three appellants were convicted on count 1. On count 2 Blackshaw and Fenwick were convicted and Kenning was acquitted. Fenwick was also convicted on a count that was re-numbered as count 3, of possessing a controlled drug, namely cannabis, with intent to supply.

3. The appellants were sentenced as follows: Kenning, on count 1, 21 months' imprisonment; Blackshaw, on counts 1 and 2, a suspended sentence order of ten months' imprisonment suspended for twelve months, with a requirement to carry out 240 hours of unpaid work, concurrent on each count; and Fenwick, on counts 1 and 2, 21 months' imprisonment, concurrent; on count 3, nine months' imprisonment, consecutive; on count 4, nine months' imprisonment, concurrent; and on count 1 on the second indictment, six months' imprisonment, consecutive, making a total of 36 months' imprisonment.
4. The appellants all appeal against their convictions having been granted leave by the full court. Kenning and Fenwick have been granted bail.

The Facts

Counts 1 and 2

5. Kenning and Fenwick were partners in DP Enterprises in Derby, which owned a business called Hydroponic Wholesale. Kenning ran the wholesale business and Fenwick ran a retail business (The Hydroponic Centre) from the same premises. Blackshaw occasionally worked at The Hydroponic Centre.
6. The Hydroponic Centre sold hydroponic equipment, cannabis seeds and cannabis-related literature. Notices were displayed in the shop informing customers that it was illegal to cultivate cannabis.
7. In 2004 and 2006 prosecutions were brought against producers of cannabis on whose premises equipment from The Hydroponic Centre was found. Thereafter the police made two undercover visits to the centre which were covertly recorded.
8. On 18 January 2006 the first visit took place. Fenwick and Kenning were in the shop. The officer dealt with Fenwick. He said that he wanted to grow plants in the loft of his house and discussed the equipment required. Fenwick said that he could provide anti-detection foil to prevent the police from detecting heat given off from the light bulbs.
9. On the second visit, on 24 January 2006, another officer spoke to Blackshaw and said that he wanted to grow plants to make money. Blackshaw told him that he could supply everything needed and also referred to anti-detection measures. He advised that the first crop could yield between £4,000 and £8,000. He referred the officer to Fenwick, who had just arrived, and who gave similar information and predicted a return of £7,000 from the first crop.
10. Police then searched the premises and the homes of the appellants. Equipment to remove flowers from cannabis plants and to extract trichomes for pressing into cannabis resin was found. At Fenwick's home the police found 22 ounces of flowering tops from cannabis plants and 14 immature plants under cultivation (which formed the subject matters of counts 3 and 4), and an antique firearm (which formed the subject matter of count 1 on the second indictment).
11. These facts, which were adduced in evidence before the jury, posed a problem for the prosecution. The items purchased from The Hydroponic Centre that had been used by the purchasers to grow cannabis might equally have been used to grow plants that could be grown lawfully. There was thus no basis upon which the appellants could have been charged with aiding and abetting the production of cannabis simply because that they had sold the items in question. So far as the undercover police were concerned, the evidence demonstrated that the appellants were prepared to aid and abet them to commit the offence of growing cannabis, but this did not of itself amount to any offence. The prosecution decided that the answer to their problem was to bring charges in the form of those of the first two counts. The defence made no challenge to those counts before the trial began.

The Submission of No Case

12. At the end of the prosecution case, when the evidence that we have summarised had been given, Mr Beck, who was representing Fenwick, submitted that there was no case to answer on the evidence adduced. His submission was of equal applicability to Fenwick's two co-defendants. His submission was that a statutory conspiracy could not be committed unless the acts which the conspirators themselves agreed to do would, if carried out, result in the commission of a criminal offence by one of the conspirators. No conspiracy had been made out because none of the conspirators had agreed to cultivate cannabis. Counsel for the prosecution submitted that the indictment had been specifically drafted to get round the difficulty of proving an agreement that involved the person who was actually to produce the cannabis. Aiding and abetting the production of cannabis was an offence. That was precisely what the defendants had agreed to do. The judge accepted this submission and ruled that there was a case to answer. He said:

"I shall sum up the case to the jury and I am sure you will make a note of what I say. If we differ on this, I will be taken elsewhere."

And, indeed, he has been.

The Summing-Up

13. The material part of the judge's summing-up was as follows:

"Before I tell you exactly what it is the prosecution must prove in respect of the conspiracy aspect in counts 1 and 2, let me start by saying that it is clearly an offence -- and it has not been denied by the defendants -- to produce cannabis by, for example, deliberately and knowingly germinating cannabis seeds. So it is an offence to produce cannabis. It is also an offence to aid and abet someone to produce cannabis. Further, it is an offence to counsel or advise, another word for counsel, to counsel someone to produce cannabis. Those are distinct offences.

By 'aid and abet' what I mean is help, assist or encourage them. So a person can aid and abet the production of cannabis by, for example, deliberately supplying seeds and equipment to someone else so that that other person can then go on to produce cannabis. If that person did so supply seeds and equipment and, first, he realised that his supplying of the seed and equipment was capable of assisting the commission of the offence and, secondly, he foresaw that the commission of the offence was a real possibility and, thirdly, that when he supplied the seeds and equipment he intended to assist the person he had supplied to produce cannabis, then that person would be guilty of the offence of aiding and abetting the production of cannabis. It is not necessary to prove, as Mr Beck said, that the cannabis seeds sold actually germinated. He has got to supply in the realisation, as I have said, that it is capable of assisting the commission of the offence, that he foresaw the commission of the offence was a real possibility and, when he supplied the seed and equipment, he intended to assist the person he had supplied to produce cannabis.

That is the offence of aiding and abetting and, likewise with counselling, by counselling I mean advising. It is an old-fashioned word, 'counselling', but it is really advising. Likewise in respect of counselling the production of cannabis, a person in similar circumstances to those I have described would be guilty of counselling the offence if he deliberately gave advice to someone regarding the production of cannabis; that is, he realised that the giving of advice was capable of assisting the commission of the offence; he foresaw the commission of the offence was a real possibility; and, when he gave the advice in respect of the growing of cannabis, he intended to assist that person he had supplied to produce cannabis. So that is the offence of counselling.

Now, to return to the counts on the indictment, counts 1 and 2, just as it is a criminal offence to aid and abet the production of cannabis and just as it is an offence to counsel the production of cannabis, as I have described, so it is a criminal offence for two or more persons to agree with one another to commit these offences. That is what the defendants are charged with in respect of counts 1 and 2 on the indictment. Count 1 is an allegation that they agreed to aid and abet the production; and count 2 is an allegation that they agreed to counsel the production of cannabis. As I say, an agreement to commit an offence is called a conspiracy. That is the nature of the charge here."

The Appellants' Submissions

14. The appellants repeat the argument advanced by Mr Beck when he submitted that there was no case to answer. They further submit that the offence of conspiring to aid and abet is unknown to law, relying on the decision of the Court of Appeal given by Hodgson J in R v Hollinshead [1985] AC 975. It seems to us that these two submissions are different ways of saying the same thing.

The Prosecution's Submissions

15. Mr Spencer QC for the prosecution has referred first of all to the fact that in the House of Lords in Hollinshead Lord Roskill expressly left open the question of whether the Court of Appeal had been correct to rule that an offence of conspiracy to aid, abet, counsel or procure contrary to section 1(1) of the 1977 Act is a legal impossibility. Lord Roskill suggested that if and when that issue arose it should be considered de novo. Mr Spencer has relied upon a painstaking analysis of the common law origin of aiding, abetting, counselling and procuring to found the submission that this is an offence that is and always has been known to law. He submitted that this invalidated the reasoning of the Court of Appeal in Hollinshead. When asked to expand on that, he submitted that there was a criminal offence of aiding and abetting, even if the primary offence which the offenders sought to aid and abet was never committed. Insofar as any authority suggested to the contrary, he submitted that such authority was wrong.

Discussion

16. We propose to start with the passage from the summing-up that we have already quoted. The judge directed the jury that the offence of aiding, abetting, counselling or procuring the commission of an offence could be made out even if the latter offence was never in fact committed. This direction was unsound. "There can be no conviction for aiding, abetting, counselling or procuring an offence unless the actus reus of the substantive offence is shown to have occurred": see Archbold 2008 at 18-30 and the authorities there cited. "The actus reus of an accessory involves two concepts: (a) aiding, abetting, counselling and procuring (b) an offence": see Blackstone 2008 at A5.2 and the authorities there cited. Furthermore, it is not an offence to attempt to aid, abet, counsel or procure the commission of an offence: see the Criminal Attempts Act 1981, section 1(4)(b).
17. It is possible of course for persons to agree to aid and abet an offence that they intend or expect will be committed by a person who is not party to that agreement, but it is hard to conceive of such an agreement constituting a statutory conspiracy contrary to section 1(1) of the Criminal Law Act 1977. That section insofar as material provides:

"(1) .... if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either --

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement ....

....

he is guilty of conspiracy to commit the offence or offences in question."

18. The course of conduct to which the would-be aiders and abettors agree will, ex hypothesi, involve their performing acts that are no more than accessory to the offence intended to be committed by the primary offender. If they do all those acts, they will not amount to an offence unless the primary offender commits the primary offence. There can be no certainty that he will do so. Thus, even if the aiders and abettors do all that they agree to do, their course of conduct will not necessarily amount to the commission of an offence. This result is not surprising. It would be odd if it was an offence to conspire to aid and abet, although no offence to attempt so to do.
19. The authors of the eleventh edition of Smith and Hogan's Criminal Law argue at page 367 that the course of conduct ought to include the intended conduct of a person not party to the agreement. They conclude, however, at pages 369-370 that as a matter of construction an agreement to aid and abet an offence cannot constitute a statutory conspiracy. The relevant passage reads as follows:

"D1 and D2, knowing that E intends to commit a burglary, agree to leave a ladder in a place where it will assist him to do so. E is not a party to that agreement. If E uses the ladder and commits burglary, D1 and D2 will be guilty of aiding and abetting him to do so. Are they guilty of conspiracy to commit burglary? Conspiracy requires an agreement that will involve a 'course of conduct' amounting to or involving 'the commission of an offence'. If the course of conduct is placing the ladder, it seems clear that they are not guilty. Placing the ladder is not an offence, not even an attempt to aid and abet burglary, since the Criminal Attempts Act 1981 makes it clear that this is not an offence known to the law. However, it is argued above that 'course of conduct' should be interpreted to include the consequences intended to follow from the conduct agreed upon, including the action of a person not a party to the agreement -- for example, V, who takes up poisoned tea left by D and E and drinks it. So it might be argued, consistently with that, that the course of conduct ought to include E's use of the ladder in committing burglary. If that should be accepted, the next question would be whether the burglary is 'the commission of any offence by one or more of the parties to the agreement'. E is not a party to the agreement, so the question becomes, do the words 'commission of any offence' include participation in the offence as a secondary party? Since all the parties to a conspiracy to commit an offence will be guilty of that offence if it is committed, but section 1(1) contemplates that it may be committed by only one of them, it is clear that 'commission' means commission by a principal in the first degree. It is submitted therefore that an agreement to aid and abet an offence is not a conspiracy under the Act."

20. The Court of Appeal in Hollinshead said at page 986 that they were "in complete agreement" with the reasoning in this passage. They went on to hold, however, that the facts of that case could not in any event amount to the statutory conspiracy charged. These shortly were that the appellants had manufactured and sold apparatus designed to alter the operation of electricity meters, thereby defrauding the suppliers of the electricity. The appellants were, however, wholesalers and therefore too remote from the ultimate fraudulent use of their products to be guilty of conspiring to aid and abet, even if such an offence existed. It was on the latter ground that Lord Roskill in the House of Lords held that no statutory conspiracy could be made out.
21. Whether, in these circumstances, the reasoning of the Court of Appeal remains a binding precedent may be a matter for debate. Whether it is or not, we endorse the court's conclusion that an agreement to aid and abet an offence is not in law capable of constituting a criminal conspiracy under section 1(1) of the 1977 Act. We are unable to see how the origin of the offence of aiding and abetting so studiously researched by counsel for the Crown has any relevance.
22. It follows that the indictment in counts 1 and 2 charged offences unknown to law. The judge should have acceded to the submission of no case to answer in respect of those counts. The directions that he subsequently gave to the jury were defective in law. The convictions of all three appellants on count 1 and of Fenwick and Blackshaw on count 2 must accordingly be quashed.

Count 3

23. The facts in relation to count 3 were as follows. On 2 March 2006 police searched the home address of Fenwick at 31 Carlton Road, Derby. In the cellar of the premises they found three bags containing a total of 624 grams (22.28 ounces) of "flowering tops" from cannabis plants with a THC content varying between 11 and 20%. In addition, there was a quantity of cannabis plant waste material consistent with being discarded from the crop of plants that had grown the flowering tops. The appellant Fenwick readily admitted that he had grown the plants and that he intended to use the cannabis for his own personal use, which he put at one-and-a-half ounces per week (a figure that was never disputed). Various paraphernalia and small quantities of cannabis were found elsewhere on the premises consistent with the smoking of cannabis for personal use.
24. In the cellar were found fourteen immature cannabis plants being grown in a "small-scale but quite sophisticated" hydroponic system, which would have provided a crop of a similar size to the flowering tops that were found. This was the subject matter of a further count of producing a controlled drug to which the appellant pleaded guilty earlier. These plants would have reached the harvesting point in their growth in about fourteen further weeks, which would have provided the appellant with a further supply at the point in time when the cannabis found would have been used up, given his claimed weekly consumption.
25. The system was not being used to maximum capacity as there were at least six further pots available standing empty, in which the appellant claimed that he intended to experiment with the growing of exotic plants. No "dealer lists", large amounts of money or packaging materials were found on the premises and no other evidence was adduced to show that the appellant had supplied or intended to supply any of the drugs found. The Crown advanced their case on the basis that it was possible to infer the intention to supply the cannabis from the amount found and all the circumstances of the case.
26. Mr Beck's submission is that the judge did not adequately direct the jury in relation to this offence. The only issue was whether Fenwick had this cannabis with intent to supply for his own use. In relation to this matter the judge directed the jury as follows:

"You may say, 'So far so good. We are satisfied that the prosecution have proved all those matters, because Mr Fenwick when he gave evidence admitted that he was in possession of that cannabis, the cannabis found at his house'. That is the cannabis we are talking about. But this is where the issue comes in this case. The prosecution must then go on to prove that at the time the defendant intended to supply that drug to another. Mr Fenwick says, 'No such intention whatsoever. This cannabis was for my own personal use. I was not going to supply it'. The prosecution say that he might say that, but look at the quantity he had. We will deal with the amounts in evidence. Look at the quantity and look at the circumstances. Was there more in the pipeline being grown? There was far too much for his own personal use. The prosecution say you can draw an inference that he had that amount because his intention was to supply others."

Later in the summing-up the judge said:

"Count 3 concerns Mr Fenwick alone and the issue there is: what was his intention? Are you sure he intended to supply the cannabis found in his possession to another?

That is how the defence put their case, again in general terms. On the other hand, the prosecution say, 'Let us start with count 3'. You can be sure, say the prosecution, that Mr Fenwick intended to supply that cannabis that was found at his house to other persons. Look at the amount he had, 624 grams, which was in the process of being dried or had dried. That is half a kilogram; that is 22 ounces. I use all those different measures because, as Mr Holm told us, drug users and dealers deal in both metric and imperial measure. The value, Mr Holm said, was over £2,000 if sold by the ounce, worth far more if sold in smaller amounts."

Later, when he rehearsed the evidence, the judge said:

"Mr Fenwick's home address at 31 Carlton Road in Derby was searched. That was done on 2 March and there are photographs of what was found behind divider 12. In a bedroom there was a self-seal bag with two seeds. In the cellar there was found the cannabis tops that we have spoken about. They are the subject matter of count 3 on the indictment, the cannabis that was found at Mr Fenwick's home.

Mr Holm commented in respect of the cannabis found there. He said if sold by the ounce, 22 ounces at £120 comes to £2,640. If sold by an eighth of an ounce, you would get £3,520 for it. So he is really telling you the difference in value of that cannabis if sold by the ounce or by the eighth of an ounce, but that is at £120 rather than £100 an ounce.

There was also discarded cannabis plant waste at the house, which is shown in the photographs, and immature cannabis plants that were representative of a total of about fourteen non-flowering plants that were shown there.

It was there Mr Holm commented on the growing cycle for cannabis because there were immature plants there found at Mr Fenwick's house. He said that the growing cycle for cannabis is twelve to sixteen weeks and each mature plant can yield between 14 and 56 grams; that is, a half to two ounces per plant every twelve to sixteen weeks.

As to the hydroponic equipment that was found there, it was fairly small scale, but it was quite sophisticated with all the equipment that he had there with it.

We know that the electricity account was investigated in respect of that house and it is conceded that it was not an excessive use of electricity there. The defence say that that shows that as a lot of electricity is required for the production and cultivation of cannabis, with the bill being moderate there was not a lot of cultivation going on."

Finally, the judge dealt with the evidence given by Fenwick as follows:

"Mr Fenwick said in respect of count 2, 'I accept the issue is: did I intend to supply that? Even though I had 22 ounces there ready for use, which had been valued at over £2,000', he said, 'no, it belonged to me. I was going to use it. I was going to convert it into hash, because I wanted to stop smoking. It was grown organically and it was grown for myself. I was using one and a half ounces per week and I did not intend to sell any of it'."

Towards the end of his summing-up the judge referred to the interviews, which were to similar effect. He said:

"As I say, you have got those in front of you. They refer to the amount he said he was drawing. He was asked about the cannabis itself, the 22 ounces found at his place, his house. He said that was worth about £2,000. It was grown organically. He was not selling it. He said that as well as having that cannabis that was dried, he also had other cannabis that was growing. He would not say that selling cannabis was an easy way to make money."

27. Mr Beck's submission that the summing-up did not deal adequately with the facts was coupled with a submission that, in as much we have found the summing-up in respect of counts 1 and 2 was defective, this had implications for count 3. We have not been able to follow the logic of that argument. It seems to us that count 3 stood separately on its own facts. The issue was this: Did the appellant Fenwick intend to use this cannabis solely for his own use or was he producing it in order to supply it and profit from it? That was a very simple issue. We consider that it was fairly placed before the jury by the judge and that he fairly summarised the evidence in relation to it. We see no force in the criticisms made in relation to this count. We dismiss the appeal that is made in relation to it.

MR SPENCER: My Lord, could I enquire, with respect, whether it is the view of the court that the proceedings therefore were a nullity? I ask because it may be that if that is not the view of the court, I would have to ask this court to consider the ordering of a retrial. It is only a question of where we go from here. I can take my Lord to the relevant passages, if that would help?

THE LORD CHIEF JUSTICE: Yes, that might be helpful.

MR SPENCER: Page 117. My Lord, it is paragraph 1-195: "A defect in an indictment may provide a foundation for an appeal to the Court of Appeal or if the indictment is invalid pursuant to the inherent discretion if that court has to quash any conviction resulting from an invalid indictment."

I go on to the next paragraph: "The Court of Appeal has no jurisdiction to amend a defective indictment. It is not every defect which will result in the quashing. No conviction can stand if the underlying proceedings were a nullity, but it is not every uncorrected defect that will have such a consequence."

It would seem from the court's judgment that the effect is that these proceedings were a nullity.

THE LORD CHIEF JUSTICE: In so far as they related to counts 1 and 2?

MR SPENCER: Counts 1 and 2, indeed. Can I just take my Lords to page 1089, please, on this court's power to order a retrial? At page 1089 is paragraph 7-112 which recites the power which will be well-known to this court -- section 7 -- but then the commentary reads thus: "Where a conviction was quashed because of the defective nature of the indictment, it was still open to the Court of Appeal to order a retrial".

THE LORD CHIEF JUSTICE: Are you applying for an order for a retrial?

MR SPENCER: My position is that the effect of the court's judgment is that these proceedings were a nullity and that there is no need for any direction. But if I am wrong in my understanding of the court's judgment, then I need to invite this court to consider its powers under section 7.

THE LORD CHIEF JUSTICE: As we have ruled that counts 1 and 2 charge an offence unknown to law, what is the count on which you would seek to retry these defendants?

MR SPENCER: We would have to think of fresh charges, exactly.

THE LORD CHIEF JUSTICE: Whatever view one takes of the position, it clearly would be inappropriate to order a retrial.

MR SPENCER: Thank you, my Lord.

MR BECK: I am so sorry, my Lord, might I raise another topic?

THE LORD CHIEF JUSTICE: Yes.

MR BECK: My Lord knows that Mr Fenwick was granted bail --

THE LORD CHIEF JUSTICE: Yes.

MR BECK: -- and he has enjoyed bail. On the counts that still remain on both indictments he faces a total of fifteen months' imprisonment and therefore is not eligible for immediate release. It is likely that he will go into the prison system and that at some point when he is allocated he will be the subject of a home detention curfew.

THE LORD CHIEF JUSTICE: Yes.

MR BECK: But that may take some days, if not longer, because as far as the prison system is concerned, he has now left the prison system. I wonder if my Lord would consider using the powers which the court would appear to have under section 4 to adjust the sentences on counts 3 and 4 -- not that I have ever made, and do not make, any complaint about them -- so that his immediate release is allowed?

THE LORD CHIEF JUSTICE: How long has he left to serve?

MR BECK: He would serve until the end of August, were he not released on electronic monitoring.

MRS JUSTICE DOBBS: But if he were released on electronic monitoring, when is that anticipated?

MR BECK: He is eligible for it now, my Lady, and I anticipate that that will be done as soon as possible, but "as soon as possible" because he is now, as it were, a stranger to the prison system may take some time.

THE LORD CHIEF JUSTICE: Could you refer us to our powers?

MR BECK: My Lord, I think it is at page 1087. It is paragraph 7-108. It is section 4 of the Criminal Appeal Act 1968. My Lord, as I read it, it would appear that section 4(2) would allow an adjustment of the sentences.

MR JUSTICE UNDERHILL: Is that not aimed at a case where there is reason to believe that the two sentences are interrelated, so that it would be unjust to allow the sentence on the part on which he has not succeeded or has not appealed --

MR BECK: My Lord, that is right. I am trying to take advantage of that section.

THE LORD CHIEF JUSTICE: Yes.

MR BECK: I cannot do any other than to ask for some clemency on his behalf because I have never appealed, and can see no good grounds for appealing, any of those sentences. It just seems sad that a man who has enjoyed the benefit of bail, has turned up this morning, will now go back into the prison system for a very short time, one suspects, before his release is effected.

(The court conferred)

THE LORD CHIEF JUSTICE: We do not think it would be appropriate to make the order that you seek.

MR BECK: My Lord, I am grateful.

_________________________________________