Read through the attached extract from R v Cook (2017) and answer the following questions:
- Explain in your own words the material facts in the case.
- Explain in your own words the legal issue(s) in the case.
- What technique(s) of statutory interpretation do you consider Lord Jennings employed in the judgment? Include in your answer how he uses (or applies) the technique(s) to assist him.
- What aids to statutory interpretation do you consider Lord Jennings employed in the judgment? Explain whether they are ‘intrinsic’ or ‘extrinsic’
- Explain why the Court of Appeal in R v Cook was able to follow R v Ali rather than R v What principle of judicial precedent is relevant here?
- Explain in your own words the ratio decidendi of the case.
R v Cook (2017)
The Crown appealed with leave of the Court of Appeal, Criminal Division against the decision of that court (Parker LJ, French and Mann JJ) ([2016] 3 All ER 202, on 16 December 2015 for reasons given on 20 December 2015 allowing the appeal of the defendant, Alastair Cook against his conviction on 20 June 2015 in the Crown Court at Inner London Sessions before his Honour Judge Kohli and a jury of possessing a controlled drug, 227g of cannabis resin, with intent to supply it to another contrary to s 5 (3) of the Prohibition of Controlled Drugs Act 2000. The Court of Appeal certified that a point of law of general public importance was involved in its decision to allow the appeal. The facts are set out in the opinion of Lord Jennings.
The Lordships took time for consideration.
5 March 2017. The following opinions were delivered.
Lord Jennings of Trafford.
[Para1] My Lords, the respondent (the defendant) was charged on indictment with three counts alleging contraventions of the Prohibition of Controlled Drugs Act 2000. The first count charged him with possessing a controlled drug with intent to supply it unlawfully to another, contrary to s. 5(3) of the Act, and the second count, which was alternative to the first and related to the same package of drugs, charged him with unlawful possession of it contrary to s. 5(2) of the Act. The third count charged unlawful possession of a different smaller quantity of drugs. The present appeal is not concerned with that count and it need not be further mentioned. At the trial, before his Honour Judge Kohli and a jury in the Crown Court at Inner London Sessions, the defendant pleaded not guilty to the first count, but guilty to the second. The plea of guilty to the second count was not accepted by the prosecution, and the trial proceeded on the first count. Evidence was led by the prosecution to the effect that a package containing 227g of cannabis resin, a controlled drug, having a street value of about £500, was found under the driver’s seat of the defendant’s car after he had been arrested in connection with an alleged assault. The defendant stated to police officers that he did not deal in drugs and that the package had been left in the car on the previous evening by a friend. He declined to name the friend and said: ‘I expected him to come round and pick it up.’ At the close of the prosecution case counsel for the defendant asked the judge to direct the jury that if they accepted that his intention was merely to return the package of drugs to the person who had left it in the car that would not have been an intent to supply it to another in contravention of s. 4(1)(b) of the 2000 Act, and that he should therefore be acquitted on count one. The judge ruled that the intention to return the package to the person who had left it in the car did constitute the requisite intent for conviction, and the defendant thereupon changed his plea on the first count to one of guilty. He was sentenced to 12 months’ imprisonment on that count.
[Para2] The defendant appealed, and on 16 December 2015 the Court of Appeal, Criminal Division ([2015] allowed the appeal and quashed the conviction. …
Section 5(3) of the 2000 Act provides:
‘Subject to section 28 of this Act, 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 section 4(1) of this Act.’
Section 4(1) provides:
‘… it shall not be lawful for a person (a) to produce a controlled drug; or (b) to supply or offer to supply a controlled drug to another.’
[Para 3] The issue in the appeal is concerned with the meaning properly to be attributed to the word ‘supply’ in ss. 4(1) and 5(3). This is to be ascertained in the usual way by reference to the ordinary natural meaning of the word together with any assistance which may be afforded by the context. Counsel for the Crown sought also to derive some assistance from the Prohibition of Controlled Drugs Regulations 2003 (S.I. 2003 No. 797) , made under the powers to that effect contained in the Act of 2000, which came into force at the same time as the principal provisions of the Act. This is not, however, one of those exceptional cases where a guide to the construction of a statute may be obtained from regulations made under it, and the regulations in question are not, in my opinion, admissible for the purpose sought to be made of them.
[Para 4] The word ‘supply’, in its ordinary natural meaning, conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other. It connotes more than the mere transfer of physical control of some chattel or object from one person to another. No one would ordinarily say that to hand over something to a mere custodier was to supply him with it. The additional concept is that of enabling the recipient to apply the thing handed over to purposes for which he desires or has a duty to apply it. In my opinion it is not a necessary element in the conception of supply that the provision should be made out of the personal resources of the person who does the supplying. Thus, if an employee draws from his employer’s store materials or equipment which he requires for purposes of his work, it involves no straining of language to say that the storekeeper supplies him with those materials or that equipment, notwithstanding that they do not form part of the storekeeper’s own resources and that he is merely the custodier of them. I think the same is true if it is the owner of the business who is drawing from his own storekeeper tools or materials which form part of his own resources. The storekeeper can be said to be supplying him with what he needs. If a trafficker in controlled drugs sets up a store of these in the custody of a friend whom he thinks unlikely to attract the suspicions of the police, and later draws on the store for the purposes of his trade, or for his own use, the custodier is in my opinion rightly to be regarded as supplying him with drugs. On the assumed facts of the present case (they were never tested before the jury), the defendant had been made custodier of the drugs by his unnamed friend, who, having regard to the quantity of the drugs, may legitimately be inferred to have been a trader. If on a later occasion the defendant had handed the drugs back to his friend, he would have done so in order to enable the friend to apply the drugs for the friend’s own purposes. He would accordingly, in my opinion, have supplied the drugs to his friend in contravention of s. 4(1). It follows that, in so far as he was in possession of the drugs with the intention of handing them back to the friend when asked for by the latter, he was in possession with intent to supply the drugs to another in contravention of s. 4(1) and was thus guilty under s. 5(3).
[Para 5] The reason why the Court of Appeal, Criminal Division gave leave[1] to appeal in this case was that it believed that it perceived a conflict between two earlier decisions of that court. These two decisions were R v Stokes [1994] and R v Ali (1995). In R v Stokes the accused had been a passenger in a minicab which was stopped by police because it was not displaying a tax disc. He ran away leaving in the car a holdall containing 6.31 kg of cannabis. At his trial on a charge of contravening s. 5(3) he gave evidence that two acquaintances had told him that they had stolen the cannabis and had nowhere to keep it. They asked him to look after it for a couple of hours and he agreed to do so. He was on his way to deliver it back to them when he was arrested. The judge ruled that returning the cannabis to those who had given it to him would be an act of supplying, and the accused thereupon pleaded guilty to the charge. On his appeal the Court of Appeal, Criminal Division, …held that the ruling of the trial judge was correct and dismissed the appeal. Skinner J, delivering the judgment of the Court of Appeal said:
‘Thus we are driven back to considering the word “supply” in its context. The judge himself relied on the dictionary definition, which is a fairly wide one. This court has been referred to the Shorter Oxford English Dictionary which gives a large number of definitions to the word “supply”, but they have a common feature, viz that in the word “supply” is inherent the furnishing or providing of something which is wanted. In the judgment of this court, the word “supply” in s. 5(3) of the 2000 Act covers a similarly wide range of transactions. A feature common to all of those transactions is a transfer of physical control of a drug from one person to another. In our judgment questions of the transfer of ownership or legal possession of those drugs are irrelevant to the issue whether or not there was intent to supply. In the present case on his own evidence the appellant had possession of a substantial quantity of cannabis. His intention was to transfer control of it to his two friends at an agreed time and place. In those circumstances it seems to us that the Judge was entirely right in his ruling, and that therefore the argument put forward by counsel for the appellant has no foundation.’
[Para 6] In R v Ali the first accused, Moeen was a registered drug addict who had lawfully obtained from a medical practitioner ampoules of a controlled drug Physeptone. His account was that, while in the street accompanied by … Maureen, he gave her some of the ampoules to look after while he went into a public lavatory to inject himself from another ampoule. This was observed by, police officers who arrested [him]. Moeen was charged with supply of a controlled drug to Maureen under s. 4(3)(a) of the 2000 Act … The trial judge ruled that, assuming Moeen’s account was true he had no defence to the charge of supply, and he thereupon changed his plea to guilty. On his appeal to the Court of Appeal, Criminal Division that court … held that the ruling of the trial judge was incorrect and quashed the conviction. Lord Lane CJ, giving the judgment of the court, said:
‘Moeen Ali was charged under s. 4(3)(a) of the Prohibition of Controlled Drugs Act 2000, which makes it an offence for any person to supply a controlled drug to another. The question in his case is whether by handing the ampoules to Maureen to hold for him temporarily, he can be said to have supplied the ampoules to her. The word “supply” is defined in the Shorter Oxford English Dictionary as follows: “. . . to fulfil, satisfy (a need or want) by furnishing what is wanted. To furnish, provide, afford (something needed, desired or used).” Those are the two definitions which seemed to be relevant to the particular circumstances. It is an act, so it seems, which is designed to benefit the recipient. It does not seem to us that it is apt to describe the deposit of an article with another person for safe keeping, as was the case here. The example was canvassed in argument of a person who hands his coat to a cloakroom attendant for safe keeping during the show in a theatre or cinema. It could scarcely be said that the person handing the coat supplies it to the cloakroom attendant. Nor do we think it makes any difference that the cloakroom attendant wishes in one sense to get his coat, thinking that he may get a tip at the end of the evening. That is not the sort of wish or need which is envisaged by the definition of the offence. That sort of transfer is a transfer for the benefit of the transferor rather than the transferee. In our judgment therefore the learned recorder was in error in ruling as he did. He should have left it to the jury to decide whether or not this transfer to Maureen of the controlled drug Physeptone was so that she could use the drug for her own purposes, for example to hand on to someone else or to use on her own body, in which case there would have been a supply, or may simply have been for safe keeping and for return to Moeen, who was lawfully entitled to the drug, it having been prescribed for him, in which case there was not. We have been referred to a number of decisions, particularly the decision in R v Stokes [1994] … We do not think that those decisions assist us in the interpretation of the word “supply”. If there is any ambiguity in the word, it must be resolved in favour of the defendant. That is clear from the passage to which we have been referred in Maxwell on Interpretation of Statutes (12th edn, 1969) p. 239. There is no need for us to read that. We do not think there is an ambiguity. But as I say, if there is, the principles set out in Maxwell applies, namely that the ambiguity must be resolved in favour of the defendant.’
[Para 7] In the present case Mann J, giving the judgment of the Court [of Appeal], said of these two decisions:
‘We find it impossible to reconcile the meaning put on the word “supply” in R v Stokes with the meaning put on that word in R v Ali. The decision in R v Stokes is that the word is satisfied if there is a transfer of physical control of the drug in question. However in R v Ali there was a transfer of physical control, yet the conviction was quashed. The cases cannot be composed on the basis that R v Stokes concerned s. 5(3) of the 2000 Act, whereas R v Ali concerned s. 4(3)(a). Each offence is drawn in terms of supply in contravention of s. 4(1). We are faced with two decisions of this court which conflict. In that circumstance we are bound to decide which of them to follow: see Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293 at 300, R v Gould [1968] 1 All ER. In our judgment, the meaning put on the word “supply” in R v Ali is to be preferred. With respect to the members of the court in R v Stokes who thought otherwise, we cannot think that the word “supply” as a matter of ordinary language is apt to mean merely transfer of physical control. We agree with the view of the court in R v Ali that for there to be a supply there must be a transfer of physical control which is for the benefit of the recipient of the article. Counsel for the Crown accepted that this was the correct formulation but argued that the transferee obtains a benefit when he receives back an article which he has placed in the custody of another. The only discernible benefit is the resumption of actual possession. We do not accept that this is sufficient to constitute the return of an article an act of supply. In ordinary language the cloakroom attendant, the left luggage officer, the warehouseman and the shoe mender do not “supply” to their customers the articles which those customers have left with them. In each case the lawyer would perceive the translation of the right to possession into actual possession, but even so the user of ordinary language does not perceive a “supply”. To hold that A, in possession of a controlled drug, does not supply B when he hands the substance to B for safe keeping whilst he makes a telephone call from a telephone box, and is therefore not guilty of possession with intent to supply when he decides to hand the substance to B, but that when B returns the substance to A he supplies A and is thus guilty of possession with intent to supply from the moment when he accepts the substance into his custody whilst A telephones, is in our judgment unacceptable. It would be to attribute to Parliament an intention which we can only regard as bordering on the farcical. If B, when found holding the drug, were to be asked, “Do you intend to supply it to anyone?” he would surely reply, “No, it belongs to A. I’m holding it for him while he telephones in that call-box over there”. We cannot give the word “supply” a meaning that would render this appellant guilty of possession with intent to supply. Accordingly, there was a wrong direction on a question of law, and for that reason we allowed the appeal against conviction on count 1.’
[Para 8] In my opinion, there is a clear distinction between the decision in R v Stokes and that in R v Ali. In R v Stokes a custodier was found to have the necessary intent to supply because his intention was to hand back controlled drugs to the persons who had deposited them with him so as to enable those persons to apply the drugs to their own purposes, and thus put them back into circulation. In R v Ali there was a mere placing in temporary custody, and no intention of enabling the custodier to use the drugs for her own purposes. Maureen did not want the drugs for any purpose of her own. One who deposits controlled drugs of which he is in unlawful possession with a temporary custodier has no legal right to require the drugs to be handed back to him. Indeed, it is the duty of the custodier not to hand them back but to destroy them or to deliver them to a police officer so that they may be destroyed. The custodier in choosing to return the drugs to the depositor does something which he is not only not obliged to do, but which he has a duty not to do. Any analogy with bailment is false in a situation where the depositor has no right to ownership which the law would recognise and certainly none to immediate possession.
[Para 9] It is worth noting that, in a decision which was not cited in the Court of Appeal, the High Court of Justiciary in Scotland accepted a construction of section 5(3) which is in line with R v Stokes of which it expressed approval. That decision is Bairstow v H.M Advocate (1995). The appellant had claimed that a quantity of controlled drugs, of which she had been found in possession, had been placed in her custody by a man called Chris Broad. In the course of the opinion of the court it was said, at p. 244:
“if the appellant intended to part with all or some of the drugs in her possession to Chris Broad, even for his own use, she intended to supply Broad and it matters not whether his intention was to use them himself or to supply others.”
[Para 10] It is, I think, a misinterpretation of the grounds of judgment in R v Stokes to regard them as holding that a mere transfer of physical control of a drug from one person to another may constitute supply within the meaning of the subsection. If, however, this was the intention of the judgment, it is not, in my view, entirely correct. For the reasons I have earlier expressed, it is necessary that the transfer be for the purposes of the transferee…
My Lords, for these reasons I would allow the appeal…
[1] Permission