Keith Borer Consultants Cannabis Update 2020

Part 1: Cannabis Cultivation Cases

Cannabis cultivation remains a prolific crime, from small, domestic set-ups to large, commercial ventures. For large-scale operations, the logic is that it is a low-risk, high-gain business with an insatiable customer base. Smaller-scale facilities may be more likely to produce cannabis for personal use. Whilst guidelines exist for the number of plants which constitutes such an approach, this can be misleading and will be explored in more detail below.

Typical Issues in Cannabis Cultivation Cases

Yield is still one of the biggest components of a cannabis case. Thus, before we think about what products could be made from a cannabis harvest, it should always be considered whether or not the Prosecution has:

  • correctly identified all pertinent features in such cases
  • made a fair assessment of the growing facilities and potential yield.

This is often not the case with the over-simplified approach taken, such as simply counting plants and multiplying by a yield figure.  The quality and significance of the evidence is very much related to the experience of the person making the assessment.

Here is a list of the main factors to consider which would likely impact the potential yield of a cannabis crop:

Are all the plants female or at least cutting-grown?

Issue: Only female plants produce skunk cannabis.  If grown from cuttings, the plants are most likely female, even if flowering is not apparent.  The presence of male plants could be detrimental to the scale and quality of the harvest, but some growers choose seeds to try different strains or to include male plants, for example, if crossbreeding experimentation was intended.  In such circumstances, gender can only be investigated by microscopic examination with a trained eye.

Will all the plants thrive?

Issue: Barring catastrophic events, well-established plants should thrive if properly cared for.  If recent cuttings form part of the crop, these cannot be considered viable entities until roots have formed. Such observations may or may not have been made and reported by the Prosecution expert.  Even with established plants, consideration has to be given to any apparent diseases or signs of failure, and the suitability of the growing arrangements for successful onward development.

Is there adequate space for the plants?

Issue: As cannabis plants grow, they take up more space. Grow-tents or domestic rooms have limited capacity.  As such, the available space has to be considered against the number of plants expected to mature in that area. Overcrowding could lead to a reduction in the yield per plant. Propagators can typically accommodate over a hundred juvenile plants/cuttings. Such a number would likely fill several domestic rooms. Are such facilities available? These factors are frequently not considered in reports that we see.

Is there adequate timing between crops?

Issue: This is linked to the space issue above.A cannabis plant has a typical indoor growing cycle of around 3-4 months.  Flowering and non-flowering plants cannot successfully occupy the same growing room. Dependant on the nature of the set-up, it is possible that some plants need to be transferred into different growing environments and if the space is currently occupied by other plants then the follow-on crop has been mistimed and there is nowhere for the plants to go.  This factor is rarely considered.

Is the lighting adequate for the suggested yield?

Issue: The type, number and power of the lights present all impact on the development and potential yield of cannabis plants.  Light is the only energy source available for green plants to grow and flower. In short, you only get out what you put in, so suggested yields may not be feasible in some circumstances of inadequate lighting. Equally greater yields may be expected if more lighting than typical is used.  The number of plants alone will not determine the likely yield, and the yield obtained may not be that typically expected depending on lighting.

Is the level of sophistication correctly assessed?

Issue: Most cannabis growing operations, especially domestic grows, are no more than adequate for purpose. Nonetheless we have seen experts suggesting a “high level” of sophistication, even when only expected equipment is present, and who also equate the level of sophistication with a commercial venture. The reverse may be more likely as it is the cannabis enthusiast who often has the more specialised equipment rather than the businessman who takes the more basic and economic approach.

Is the yield correctly valued?

Issue: Street values are typically applied without justification and grossly over-state the valuation, but this is a topic for another article.

Part 2: Cannabis Products

Cannabis oil products, whether overtly controlled or believed to be legal, are gaining ever-increasing popularity. KBC continues to provide advice and reports where sale, possession or even production of such materials forms part of the case.  Some of the concerns are discussed.

So, what’s new? The rise of cannabis products

What’s new is an explosion of interest in cannabis products rather than just in the cannabis harvest itself. Such products are based around extracting the drugs present in cannabis from the plant material to create a concentrated preparation or, in some instances, to attempt the production of a non-controlled CBD product. CBD, or cannabidiol, hailed by many as a panacea, is excepted from the controls of the Misuse of Drugs Act, but only when fully extracted from cannabis and its controlled components – which is easier said than done!

The cannabis products typically made include the following:

Cannabis oil/Rick Simpson oil – an extraction of the drugs into alcohol which is reduced to form an oil

Butane Honey oil (BHO) – a gas extraction of the drugs to form a highly-concentrated product

Shatter/wax – variants of BHO which have been subject to further processing

Rosin – an extraction using heat and pressure to recover resinous material containing cannabis drugs

CBD oil – a non-controlled product made by differentially extracting cannabis drug components.

The production of the above materials has formed the basis of defences in many cases which KBC have reported on over the past few years.  There are many factors which need exploring in such cases which may impact on mitigation, sentence and value of a cultivation operation.

The production of CBD oil and Rick Simpson Oil is sometimes cited for the self-medication of a range of health issues.  There is little formal research into the health benefits of cannabis or its active components, with a few notable exceptions. Nonetheless, the popular belief in this regard is well-established. The other products, such as BHO, are often produced only on a small scale by the cannabis experimenter or connoisseur.

Whilst all of above the products made tend to be highly concentrated, the amount produced would be only a small fraction by weight of the starting material. As such, a 2kg potential harvest from a growing operation would likely result in a few hundred grams of extracted oil.  This may impact on the overall view taken by the Court in respect of production for personal use or commercial venture, sentencing and valuation.

Whilst specialist equipment is available to make cannabis products, it is a common misconception that such equipment is vital. More often only basic household objects are used. Methodologies for production of these material are readily available on the Internet. As these approaches may be anecdotal or not scientifically accurate, however, they should be carefully evaluated.

KBC can help.  We have expertise in cannabis cultivation cases, cannabis product manufacture and can assess the validity of a stated methodology, comment upon potential product yield and offer opinion on the value of such materials.  Cases involving cannabis cultivation, extract production and use are often complex and easy to misinterpret.  If you have any questions about your cannabis-related case, please contact us for further advice.

About Keith Borer Consultants

Established in 1980, Keith Borer Consultants has grown to over 30 experts, covering all aspects of forensic evidence.  They are instructed by solicitors, barristers, insurance companies, review bodies and private individuals.  Drugs experts, Julian Dunnill and Richard Brown, can be contacted at the Durham office on 0191 332 4999, whilst Sarah Morley, based at the Huntingdon office, can be contacted on 01480 432 794.