Kenning, R. v

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.

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:

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.

The appellants all appeal against their convictions having been granted leave by the full court. Kenning and Fenwick have been granted bail.

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.

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.

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.

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.

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.

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).

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.

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:

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

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.

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.

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).

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:

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.

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:

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.

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.

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.

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.

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.

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.

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:

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.