Darren Dougall v. His Majesty’s Advocate [2025] HCJAC 35

Note of appeal against conviction:- The appellant was convicted after trial on indictment at Edinburgh Sheriff Court of four charges:- (1) being knowingly concerned in the fraudulent evasion of the prohibition on importation of cannabis imposed by section 3(1)(a) of the Misuse of Drugs Act 1971, contrary to section 170(2)(b) of the Customs and Excise Management Act 1979; (2) being concerned in the supply of cannabis contrary to section 4(3)(b) of the Misuse of Drugs Act 1971; (3) being concerned in the supply of tetrahydrocannabinol contrary to section 4(3)(b) of the Misuse of Drugs Act 1971; and (4) possession of cocaine contrary to section 5(2) of the Misuse of Drugs Act 1971. The circumstances were that the appellantran an online shop in which he offered for sale various items, containing CBD or cannabidiol. On 31 July 2020, three packages addressed to the appellant were intercepted by customs officers at Edinburgh Airport which been sent from the USA and were labelled “tea”. The packages were opened and contained plant material which, once scientifically analysed, was found to be cannabis. Warrants were obtained and a substantial amount of material was seized from the appellant’s home some of which were found to be cannabis, some THC, some CBD and some produced negative results and a joint minute was entered into confirming the nature of the products analysed. Prior to the trial a compatibility issue minute was lodged contending that on a proper application of EU law, as it applied to the UK at the material time, it was not an offence to import, possess or supply cannabis or certain derivatives if the material in question had a THC (tetrahydrocannabinol) content of less than 0.2% and that, insofar as the Misuse of Drugs Act 1971 sought to criminalise such material, it constituted an unlawful interference with the free market provisions of the Treaty on the Functioning of the European Union (TFEU), in particular article 34. It was contended that the scientific report did not differentiate between hemp and controlled substances or indicate the level of THC within any individual product and simply identified all plants of the genus cannabis sativa as cannabis which was contrary to EU law under reference to the Court of Appeal case of R v Margiotta [2023] EWCA Crim 759. The sheriff, following submissions, refused to allow the compatibility issue minute to be received late and leave to appeal was refused. During the trial the appellant relied on the statutory defence provided by section 28(3) of the 1971 Act. At the appeal hearing the Crown referred to R v Datson [2022] EWCA Crim 1248 where the Court of Appeal held that the ingredients of an offence contrary to section 170(2) of the Customs and Excise Management Act 1979 made clear that it was not necessary for the prosecution to prove that the defendant knew what the goods being imported in fact were and section 28(3) does not apply to the offence of importation of a controlled drug, although a genuine mistaken belief in law at the material time that goods were not subject to a prohibition could be founded upon by the defence. In his evidence the appellant stated that he thought. that the material was not subject to any prohibition. The trial sheriff left it to the jury that if they accepted his evidence or it left them in reasonable doubt they should acquit. The appellant was subsequently convicted and he appealed on the basis of alleged misdirections by the trial sheriff which it was contended were contrary to what the Court of Appeal had said in Margiotta which had been concerned with hemp which was protected in terms of the common agricultural policy if the concentration of THC in it was no more than 0.2%. Here it was submitted on behalf of the appellant that the level of THC was a relevant factor. On behalf of the Crown it was submitted that all that had to be proved were that the substances seized were the controlled drugs specified and that was agreed by virtue of the joint minute which had been entered into. It was further submitted that the appellant had been given the opportunity to put forward his section 28 defence and his position in relation to the importation charge under reference to what was said by the court in Datson had been relied upon, namely, that the appellant thought the drugs were legal and he had no reason to suspect otherwise. It was further submitted that the sheriff had been bound to say that the THC levels were irrelevant as there was no evidence as to what the levels were beyond what the appellant thought they were. Here the court refused the appeal. The court noted that what was stated in the compatibility issue minute was clearly a compatibility issue in that it had been contended that the Crown have no power to act incompatibly with European law by prosecuting the appellant under the provisions of the Misuse of Drugs Act 1971 which, when they do not specify a particular level of THC, are incompatible with EU law. The court noted, however, that a compatibility issue minute had not been raised timeously and the case required to be decided on the basis of domestic law. As such, in light of the various items recovered having been agreed to be controlled substances prohibited under the Misuse of Drugs Act 1971 then that was the critical factor. There was no evidence regarding the level of THC in the items recovered and the trial sheriff was correct to direct the jury that an analysis of the strength of the drug was unnecessary and cannabis, THC and cocaine were prohibited and controlled drugs irrespective of their strength albeit the appellant’s belief as to the relevant strengths might be a factor relevant to his defence. The court could not find fault in the directions given by the trial sheriff in relation to the appellant’s position that he did not know and had no reason to believe that the material recovered were controlled drugs.