Isaac Coker [2019] EWCA Crim 420; [2019] WLR(D) 135, CA
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R v Isaac Coker [2019] EWCA Crim 420 was an appeal heard before the Court of Appeal (Lord Justice Gross, Mr Justice Soole and Mr Justice Murray) concerning a conviction under section 4(3)(b) of the Misuse of Drugs Act 1971. The appeal raised an important point as to the proper direction to be given to juries in respect of the offence of being concerned in supplying a controlled drug to another. The appellant’s appeal against conviction was dismissed.
Mr Coker pleaded guilty on 12 January 2018 in the Crown Court at Oxford to possession of a class B controlled drug (cannabis). On 2 May 2018, following trial before Her Honour Judge Smith, he was convicted unanimously of being concerned in supplying a class A controlled drug (crack cocaine) to another and possessing criminal property (counts 1 and 2). He was sentenced to 5 years and 6 months’ imprisonment concurrently on counts 1 and 2, together with 2 months’ concurrent for the cannabis possession, producing a total of 5 years and 6 months. The appellant appealed against conviction on count 1 by leave of the single judge, who granted leave but referred the sentence application on count 2 to the full court in the event that the conviction appeal succeeded.
On 21 November 2017, police officers attended an address in Banbury where Mr Coker was present in a room. He was found in bed fully clothed. A cannabis joint and bag of cannabis were observed, and there was a strong smell of cannabis. He was arrested and gave a false name. Upon being searched, he was found in possession of a small Zanco Wasp mobile phone, £1,850 in cash (some of which was found in a sunglasses case), digital scales, a kitchen knife found under a pillow, and two other mobile phones (a white Samsung and a blue Samsung). Analysis of the phones led a police officer to conclude that the user of the Zanco Wasp and the blue Samsung was involved in drug dealing. In interview, Mr Coker answered no comment to all questions and did not give evidence at trial.
In his defence case statement, Mr Coker denied both counts. He did not accept possession of the blue Samsung and denied involvement in any drug dealing associated with it. He accepted possession of the white Samsung and the Zanco Wasp, saying he had found the SIM card used in the latter while sofa surfing. He denied using either phone to supply class A drugs. He did not accept possession of the kitchen knife or digital scales, explaining that he was staying the night at the address on a temporary basis. He accepted possession of the cash, stating it had been given to him by his family.
In summing up, the judge directed the jury that to prove count 1 the prosecution must establish, firstly, that there had been a supply of class A drugs to another or the making of an offer to supply class A drugs to another; secondly, that Mr Coker participated in such an enterprise involving such supply or such an offer to supply; and thirdly, that he knew the nature of that enterprise. The inclusion of the words “or the making of an offer to supply” and “or such an offer to supply” prompted discussion between counsel and the judge, principally at the behest of Mr Renvoize for the appellant. Mr Renvoize contended that the wording was incorrect because subsections 4(3)(b) and 4(3)(c) of the Act created two separate offences, and the direction impermissibly introduced an either/or formulation which risked the appellant being convicted under subsection (c), with which he had not been charged, or left the jury with the impression that they could convict if some jurors were satisfied of one basis and some of another. Mr Harding for the Crown defended the direction both at trial and on appeal, submitting that being concerned in the supply of a class A drug may include an offer to supply, and that provided the additional requirements set out in R v Hughes (1985) 81 Cr App R 344 were included in the directions, the directions were in accordance with law. The judge made no change to her direction.
The Court of Appeal reviewed the leading authorities. In R v Hughes (1985) 81 Cr App R 344, Robert Goff LJ, giving the judgment of the court, explained that the difference between subsections (b) and (c) of section 4(3) is that in subsection (b) there must be an actual supply in which the accused was concerned, whereas under subsection (c) it is sufficient that there was an offer to supply in which the accused was concerned. The prosecution must prove, under subsection (b) or (c) as the case may be, three elements: the supply (or offer to supply) of a drug in contravention of section 4(1), participation by the defendant in an enterprise involving such supply (or offer to supply), and knowledge by the defendant of the nature of the enterprise. Robert Goff LJ used the phrase “as the case may be” throughout the exposition to underline the distinct nature of the two offences. In R v Martin and Brimecome [2015] 1 Cr App R 11, this court held at paragraph 16 that the word “supply” in section 4(3)(b) is a broad term, rejecting a submission that the offence required a completed supply by delivery. At paragraph 11, the court noted that Hughes had drawn attention to the fact that there were three principal offences contained within subsection (3), namely those at subsections (a), (b) and (c). This analysis was endorsed in R v Abi-Khalil and Porja [2017] 2 Cr App R 4.
Lord Justice Gross, delivering the judgment of the court, held that the wording of section 4(3) as authoritatively explained in Hughes, Martin and Abi-Khalil was clear. Section 4(3) creates three separate and distinct offences. Section 4(3)(a) deals with supply or an offer to supply. Subsections 4(3)(b) and (c) broaden the ambit of the section by applying to those concerned in either the supply or an offer to supply of controlled drugs. This view was underpinned by Robert Goff LJ’s use of the phrase “as the case may be” throughout his exposition. It followed that there was no room for an either/or direction. When the issue went to whether a defendant was concerned with supply or an offer to supply controlled drugs, the count in question must relate either to subsection (b) or subsection (c). In the present case, Mr Coker was charged under subsection (b). The court accepted Mr Renvoize’s argument as to the true construction of the section and his criticism of the judge’s direction. It rejected Mr Harding’s submissions, observing that his construction ran the danger of rendering subsection (c) otiose and did not give effect to the wording “as the case may be” used by Robert Goff LJ in Hughes.
The court set out the elements of the offence under section 4(3)(b) which the prosecution must prove: that there has been the supply of a controlled drug to another in contravention of section 4(1); that the defendant participated in an enterprise involving such supply; and that the defendant knew the nature of the enterprise, namely that it involved such supply. These elements, subject to tailoring for the individual facts, are to be included in directions given to a jury when considering a charge under section 4(3)(b). There is no room for an either/or direction encompassing the separate offence of an offer to supply which falls under section 4(3)(c). The judge’s direction was therefore incorrect in the manner the court explained. The court expressed sympathy for the trial judge, noting that the treatment of this offence in Archbold (2019) at paragraph 27-41 was unduly compressed and that Blackstone (2019) at paragraph 19.49 wrongly, in the court’s respectful view, included the either/or formulation in its summary of the ingredients of the offence. The court drew the matter to the attention of the editors of both works for their consideration. The court added three further observations: while being concerned in supplying a controlled drug may well in general be preceded by being concerned in an offer to supply such a drug, where the prosecution elected to proceed under subsection (b) it was being concerned in the supplying which must be proved; no argument was addressed on the construction of subsection (a) and the court expressed no view on that provision beyond recognising it as one of the three principal offences within subsection (3); and nothing in the judgment dealt with the situation where the indictment contained separate counts, one under subsection (b) and another under subsection (c), as no such question arose in this case and no argument was heard upon it, though the court could not envisage a difficulty in such an indictment containing both counts as alternatives if the facts so warranted.
The court turned to whether the misdirection rendered Mr Coker’s conviction unsafe. Mr Renvoize submitted that there was a risk with regard to whether the jury had been unanimous. Mr Harding contended that on the facts of this case there was no such risk, pointing to all the evidence and the conviction on count 2 of possessing criminal property, namely the cash, knowing or suspecting it to represent the proceeds of criminal conduct. The court had no hesitation in concluding that there was no risk of the conviction being unsafe. The evidence as to the Zanco Wasp and blue Samsung phones, the cash and its location, the scales and the kitchen knife made for an unanswerable case against Mr Coker under section 4(3)(b). It was fanciful to suppose that the conviction was unsafe. The court accordingly dismissed the appeal against conviction.
As to the application for leave to appeal sentence on count 2, the court noted that this application hinged on the conviction appeal succeeding. It had not. The application therefore fell away and the court refused leave to appeal against sentence on count 2. The court expressed its gratitude to counsel for the way the matter was raised and dealt with before the judge and subsequently.
In short, the Court of Appeal clarified that section 4(3)(b) and section 4(3)(c) of the Misuse of Drugs Act 1971 create distinct offences requiring separate treatment in jury directions, but found the misdirection in this case did not render the conviction unsafe given the overwhelming evidence of drug supply.
Also cited as: [2019] 2 Cr App R 10 · [2019] 4 WLR 41 · [2019] Crim LR 542