Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE CHARLES
Between :
RAJAN MARWAHA | Appellant |
- and - | |
UK BORDER REVENUE AGENCY (CASH AND COMPENSATION TEAM) | Respondent |
Claire Andrews (under the public access scheme) for the Appellant
James Fletcher (instructed by the Government legal Department) for the Respondent
Hearing date: 29 June 2017
Judgment Approved
Charles J :
Introduction
This is an appeal by way of case stated. It raises and turns on the meaning and application of the definition of poppy straw in the Misuse of Drugs Act 1971 (the 1971 Act).
The question is whether that definition covers the poppy head and poppy heads and stalks imported by the Appellant for use in flower arrangements.
The first hearing of the appeal was before Mitting J who adjourned it to enable investigation into the travaux preparatoires to the Single Convention on Narcotic Drugs, 1961 (the 1961 Single Convention) which (together with – but no-one suggested that they were relevant in this case - the 1971 Convention on Psychotropic Substances and the 1988 Convention against the Trade in Narcotic Drugs and Psychotropic Substances) currently governs the relevant international obligations of the UK that are given effect to by the 1971 Act and the Misuse of Drugs Regulations 2001 (the 2001 Regulations). This investigation introduced material relating to the 1961 Single Convention and its predecessor the Protocol for Limiting and Regulating the Cultivation of the Poppy Plant, the Production of International Wholesale Trade in and Use of Opium, signed at New York on 23 June 1953.
The definitions of “opium”, “poppy” and “poppy straw” in the 1953 Protocol, and then in the 1961 Single Convention and the 1971 Act are in similar terms. The information relating to the 1953 Protocol and the 1961 Single Convention that was put before me was not put before the Crown Court or the District Judge who have dealt with this case. But the Crown Court was shown some extracts from the 1961 Single Convention which was included in its bundle of documents.
In view of submissions made without proper supporting material on behalf of the Respondent (the Border Agency) I gave the parties the opportunity to make further written submissions on, and relating to, the licensing system under the 2001 Regulations and, in particular on why it was asserted that that licensing system assisted in the identification of the underlying purpose of the relevant provisions of the 1971 Act, or why their purpose would be undermined or their implementation hindered if this appeal was to succeed.
The relevant definition of “poppy straw” in the 1971 Act is “all parts, except the seeds, of the opium poppy after mowing”.
The central issue is whether “mowing” in that definition:
has a wide meaning that covers all means by which the opium poppy (except the seeds) has been separated from the ground, or
has a narrower meaning that does not include a process that results in the heads, or the heads and stalks, of the poppies being available for use as flowers or in flower arrangements.
Both the Crown Court and the District Judge gave “mowing” the wider and so in their view the relevant purposive meaning. Neither identify the purpose they rely on in clear terms by reference to the licensing system put in place by the 1971 Act and the 2001 Regulations or otherwise.
The Border Agency argues that they were right and the Appellant argues that they were wrong and that mowing should be given its ordinary meaning with the result that the poppy heads and heads and stalks he tried to import were not “mown” and so are not “poppy straw”.
I agree with the Appellant.
The facts
I take these from the case stated and undisputed material. The Appellant appeared in person before the Crown Court.
The Appellant had imported from the Netherlands two consignments of dried poppy heads with a view to satisfying orders for decorative poppy heads in the United States of America. They were seized on 10 and 13 January 2015. The first consignment contained loose dried poppy heads with stalks and was listed as 6000 kg in 1004 boxes of “dried flowers”. The second consignment was listed as 5500 kg in 891 boxes of “dried flowers”.
On 15 June 2015, a summons was issued by the Border Agency seeking the condemnation of the two consignments pursuant to section 139 and Schedule 3 of the Customs and Excise Management Act 1979. On 4 April 2016, District Judge Dawson made an order of condemnation and the Appellant appealed against that order to the Crown Court. The record of the District Judge’s decision but not her reasoned ruling or judgment was before the Crown Court. The appeal was heard before His Honour Judge Goodin and two lay magistrates on 8 July 2016.
The Crown Court proceeded on the basis and in the case stated set out as a fact found that the Appellant was at all material times a trader in dried flowers. The Crown Court also accepted his representations that the consignments had been hand-picked by a team of about 8 people who harvested the seeds by hand from a specially adapted trailer. The seed heads were then sorted and dried. In some cases, the poppy seed heads with stalks attached had been cut and in some cases the seed heads had been broken off with no stalks attached. I comment that this is clear from the photographs in the bundle, and so would have been clear to anyone who opened the imported boxes, because the photographs show whole and undamaged heads some with and some without part of the stalk.
Before the Crown Court it was argued by the Appellant that the imported goods were not poppy straw but papaver gigantum. Evidence was given to the Crown Court by experts instructed by the Border Agency and by the Appellant based on samples of the consigned goods that had been analysed. On the basis of that evidence the Crown Court decided that the imported goods were of the species papaver somniferum. Unsurprisingly, this finding of fact is not challenged before me.
Like the District Judge, the Crown Court also found that the two consignments were within the definition of poppy straw contained in the 1971 Act. The Crown Court found that “mowing” meant harvesting, reaping, picking or other removal from the soil and to interpret mowing as requiring or excluding any particular means of harvest would make a nonsense of the definition of poppy straw. In the ruling given in the late afternoon the Crown Court also concluded that there could be no sensible doubt that the Appellant imported poppy straw however he might wish it otherwise.
The Crown Court therefore dismissed the appeal to it. The case stated raises the following questions for the opinion of the High Court namely:
Was the Court entitled to find that the goods imported were poppy straw within the meaning of the Misuse of Drugs Act 1971?
Was the Court entitled to interpret “mowing” as meaning, harvesting reaping, picking or other removal from the soil without requiring or excluding any particular means of harvest?
Was the Court correct to place weight on the opinion of forensic and botanical experts in order to determine the meaning of “poppy straw” when neither gave evidence on the means of cutting (save in the case of Mr Vernon to say that some stalks had been cut and some seed heads were broken from the stalk) or expressed expertise in the method of cutting the poppy heads?
I have seen a copy of the ruling or judgment of the District Judge. The Appellant was represented by Counsel under the direct access scheme before the District Judge and gave evidence to her. The District Judge was satisfied from the evidence of the Appellant, and from the documents, that the Appellant runs a genuine business trading in dried flowers on the international market. Also, in her opinion, the goods imported by the Appellant do not have the appearance of a rapidly harvested poppy crop for the use in the manufacture of drugs whether licensed or otherwise. The District Judge also records that the poppy heads had been dried and that the drying process rendered them bug free so that they could be imported without agricultural restriction issues and that she had seen the Appellant’s certificate authorising him to import plant material. Having set out a number of dictionary definitions of the word “mow” the District Judge said this:
Although not all definitions are in complete agreement, the common element seems to be the cutting of a crop or plants with thin stems by a hand implement or a machine. In this case I am satisfied from the evidence of Mr Vernon that at least some of the stalks had the appearance of being cut and from the evidence of the claimant that the means of harvesting was by a team of people, aided by a mechanically propelled trailer, pulled through the fields of poppies (a vegetative crop) who actively harvested the plants by severing them from their roots and placing them onto a conveyor belt for collection. Whilst this careful method is a far cry from the careless and quick harvesting that seems to be used by the drugs trade (legal or illegal) it is still in my judgement capable of amounting to “mowing” within the ordinary meaning of the word. -------------------------- The claimant appears to be running a genuine business. The value of his imports runs to tens of thousands of pounds. This seems to be no impediment to him applying for a licence to import the materials in which he wishes to trade. The horticultural experts in the case comment that opium poppies are often legitimately used in the floristry trade because of their striking appearance. However, the claimant admits that he did not have a licence to import the goods. For the reasons set out above I find on the balance of probability that the goods are poppy straw. Therefore, I am satisfied that the goods are liable to be, condemned.
Preliminary comment on that factual background
To my mind, it is clear that care must have been taken in obtaining and drying the poppy heads (with and without stalks) in the two consignments and that, absent such or similar care, they would not have been of use to a floristry supplier because their decorative quality would have been lost.
As was said without demur during the hearing as a matter of the ordinary use of language it would not be said that bunches of tulips or daffodils or poppies that could be used in flower arrangements had been mown. Rather, it would be said that had been picked or harvested as flowers.
It follows that if its ordinary meaning is given to the word “mow” the two consignments of poppy heads (with and without stalks) were not mown.
Accordingly, to succeed on this appeal the Border Agency needs to establish that a purposive approach has the result that a wider meaning should be given to the word or concept of mowing in the statutory definition.
The most relevant definitions and provisions
The 1953 Protocol defined “opium”, “poppy” and “poppy straw” as follows:
“Opium” means the coagulated juice of the poppy in whatever form including raw opium, medicinal opium, and prepared opium, but excluding galemcal preparations
“Poppy” means the plant Papaver somniferum L., and any other species of Papaver which may be used for the production of opium
“Poppy straw” means all parts of the poppy after mowing (except the seeds) from which narcotics can be extracted
Article 4 of the 1953 Protocol provided as follows:
CONTROL OF THE POPPY PLANT CULTIVATED FOR PURPOSES OTHER THAN THE PRODUCTION OF OPIUM
A Party which permits the cultivation and use of the poppy for purposes other than the production of opium shall, whether or not it also permits the production of opium:
(a) Enact all such laws or regulations as may be necessary to ensure
(i) That opium is not produced from poppies cultivated for a purpose other than the production of opium, and
(ii) That the manufacture of narcotic substances from poppy straw is adequately controlled;
(b) Transmit to the Secretary General copies of any laws or regulations so enacted; and
(c) Transmit annually to the Board, at a date fixed by it, the statistics of poppy straw imported or exported during the previous year for any purpose whatsoever.
The 1961 Single Convention defines “opium”, “opium poppy”, “poppy straw” and “drug” as follows:
“Opium” means the coagulated juice of the opium poppy
“Opium poppy” means the plant of the species Papaver somniferum L
“Poppy straw” means all parts (except the seeds) of the opium poppy, after mowing
“Drug” means any of the substances in Schedules I and II, whether natural or synthetic (and these include morphine and opium but not poppy straw).
Articles 25, 31 and 20 of the 1961 Single Convention provide as follows:
Article 25
CONTROL OF POPPY STRAW
1. A Party that permits the cultivation of the opium poppy for purposes other than the production of opium shall take all measures necessary to ensure:
a. That opium is not produced from such opium poppies; and
b. That the manufacture of drugs from poppy straw is adequately controlled.
2. The Parties shall apply to poppy straw the system of import certificates and export authorisations as approved in article 31, paragraphs 4 to 15.
3. The Parties shall furnish statistical information on the import and export of poppy straw as required for drugs under article 20 paragraphs 1 (d) and 2 (b)
Article 31
SPECIAL PROVISIONS RELATING TO INTERNATIONAL TRADE
4. (a) Every Party permitting the import or export of drugs shall require a separate import or export authorization to be obtained for each such import or export whether it consists of one or more drugs
(b) Such authorization shall state the name of the drug, the international non-proprietary name, if any, the quantity to be imported or exported, and the name and address of the importer and exporter, and shall specify the period within which the importation or exportation must be effected.
(c) The export authorization shall also state the number and date of the import certificate (paragraph 5) and the authority by whom it has been used.
(d) The import authorization may allow importation in more than one consignment
5. Before issuing an export authorization the Parties shall require an import certificate, issued by the competent authorities of the importing country or territory and certifying that the importation of the drug or drugs referred to therein, is approved and such certificate shall be produced by the person or establishment applying for the export authorisation. The party shall follow as closely as may be practicable the form of import certificate improved by the Commission.
10. Consignments of drugs entering or leaving the territory of a Party not accompanied by an export authorisation shall be detained by the competent authorities.
Article 20
STATISTICAL RETURNS TO BE FURNISHED TO THE BOARD
1. The Parties shall furnish to the Board for each of their territories in the manner and form prescribed by the Board, statistical returns on forms supplied by it in respect of the following matters:
(d) Imports and exports of drugs and poppy straw;
2. (b) The statistical returns in respect of the matters referred to in subparagraph (d) of paragraph 1 shall be prepared quarterly and shall be furnished to the Board within one month after the end of the quarter to which they relate.
The 1971 Act defines “medicinal opium”, “raw opium”, “opium poppy” and “poppy straw” as follows:
“medicinal opium” means raw opium which has undergone the process necessary to adapt it for medicinal use in accordance with the requirements of the British Pharmacopoeia, whether it is in the form of powder or is granulated or is in any other form, and whether it is or is not mixed with neutral substances
“raw opium” includes powdered or granulated opium but does not include medicinal opium
“opium poppy” means the plant of the species Papaver somniferum L
“poppy straw” means all parts, except the seeds, of the opium poppy, after mowing
Section 3 of the 1971 Act provides:
(1) Subject to subsection (2) below
(a) the importation of a controlled drug; and
(b) the exportation of a controlled drug,
are hereby prohibited.
(2) Subsection (1) above does not apply
(a) (b) to the importation or exportation of a controlled drug under and in accordance with the terms of the licence issued by the Secretary of State and in compliance with any conditions attached thereto.
The definition of “controlled drug” in Part 1 of Schedule 2 to the 1971 Act includes, as Class A drugs, “Morphine”, “Opium, whether raw, prepared or medicinal” and “Poppy-straw and concentrate poppy-straw”.
Regulation 4 of the 2001 Regulations provides that:
4. Exceptions for drugs in Schedules 4 and 5 and poppy-straw
(1) Section 3(1) of the Act (which prohibits the importation and exportation of controlled drugs) shall not have effect in relation to the drug specified in Schedule 5.
(2) The application of section 3(1) of the Act, insofar as it creates an offence, and the application of sections 50(1) to (4), 68(2) and (3) or 170 of the Customs and Excise Management Act 1979, in so far as they apply in relation to a prohibition or restriction on importation or exportation having effect by virtue of section 3 of the Act, are hereby excluded in the case of importation or exportation which is carried out in person for administration to that person of any drug specified in Part II of Schedule 4.
(3) Section 5(1) of the Act (which prohibits the possession of controlled drugs) shall not have effect in relation to
(a) any drug specified in Part II of Schedule 4;
(b) the drugs specified in Schedule 5.
(4) Sections 4(1) (which prohibits the production and supply of controlled drugs) and 5(1) of the Act shall not have effect in relation to poppy straw.
(5) Sections 3(1), 4(1) and 5(1) of the Act shall not have effect in relation to any exempt product
Schedule 5 does not include “poppy straw”.
Thus, Regulation 4 establishes that possession, production and supply of poppy straw are exempt and so not unlawful. But, as there is no exemption for importation of poppy straw its importation into, or its exportation from, the UK is prohibited, absent the relevant licences.
Section 49(1)(b) of the Customs and Excise Management Act 1979 provides that where:
(b) any goods are imported, landed or unloaded contrary to any prohibition or restriction for the time being in force with respect thereto under or by virtue of any enactment
those goods shall, subject to subsection (2) below, be liable to forfeiture
Subsection (2) did not apply in this case.
Section 139(1) of the Customs and Excise Management Act 1979 provides that any thing liable to forfeiture under the Customs and Excise Act may be seized or detained by any officer or constable or any member of Her Majesty’s Armed Forces or coastguard.
Comment on the approach taken by the 1953 Protocol, the 1961 Single Convention and the 1971 Act and the 2001 Regulations
The 1971 Act adopts the definition of poppy straw in the 1961 Single Convention which, in respect of its most material aspects for this case, adopted the 1953 Protocol.
A significant difference between the 1971 Act and the 1961 Single Convention is that by the 1971 Act poppy straw is defined and treated as a drug, whereas by the 1961 Single Convention it is not. This has the result that different and more limited obligations are agreed by the Parties to the 1961 Single Convention in respect of poppy straw. Those obligations do not include a range of obligations under the 1961 Single Convention to prevent and make criminal possession, production and supply of drugs. Also, they do not include an obligation to render poppy straw liable to seizure and confiscation but do include a power of detention if the consignment of poppy straw is not accompanied by an export authorization that can only be issued if there is an import certificate.
The obligations relating to poppy straw are limited to applying a system of import and export licences as provided by paragraphs 4 to 15 of Article 31 of the 1961 Single Convention (which apply to drugs as defined in it) and making statistical returns (which also apply to drugs as so defined).
The 1971 Act and the 2001 Regulations reach an equivalent result by a different route that starts from the inclusion of poppy straw within the definition of a controlled (Class A) drug but through the 2001 Regulations creates the result that the possession, production and supply of that Class A drug (poppy straw) is not unlawful and so restricts the impact of the legislation on that Class A drug (poppy straw) to the prohibition imposed by s. 3(1) of the 1971 Act on its importation and its exportation. That prohibition does not apply to importation or exportation under and in accordance with a licence issued by the Secretary of State.
Preliminary comment on the relevant underlying statutory purpose of the UK legislation
The combined effect of the 1971 Act and the 2001 Regulations means that the relevant purpose does not relate to the possession, production or supply of poppy straw (as a Class A drug). Rather it relates to the purpose underlying the licensing system for the importation and exportation of poppy straw as defined.
No points were made to me based on any differences in the detail of the licensing regime under the UK legislation and the 1961 Single Convention. Rather, both sides pointed to parts of the commentary on the 1961 Single Convention and the 1953 Protocol to support their arguments and thus both accepted and proceeded on the basis that their underlying purpose and effect informed the underlying purpose and meaning of the UK legislation.
Information obtained relating to the 1953 Protocol and the 1961 Single Convention
In a document headed: “Final Act of the United Nation’s Opium Conference held at United Nations Headquarters, New York, from 11th May to 18 June 1953. Done at New York, on 23 June 1953”, a resolution adopted by the United Nations Opium Conference in respect of Article 4 of the 1953 Protocol is recorded as follows:
Recalling the provisions of article 4 of the Protocol
Declares that it is understood that the control measures therein provided do not apply to poppy grown exclusively for ornamental purposes
Comment. Unsurprisingly, this was relied on by the Appellant to support the view, as it does, that the intention and purpose of the relevant part of the 1953 Protocol was that it should not apply to all parts of the poppy (except the seeds) for whatever purpose it was grown and however it was separated from the land and, in particular, that 1953 Protocol was not intended to apply to poppies grown for use in floristry.
Both sides relied on commentary on the 1961 Single Convention prepared by the Secretary General.
The Border Agency relied on a part relating to the definition of “poppy straw” and the Appellant on a part relating to Article 25.
The commentary on the definition of “poppy straw”:
points out that that the authors of the Single Convention appear to have used the term “mowing” because they thought only of the capsule and stem (particularly its upper part) as a source of “drugs” and that it may be assumed that they would have used a term other than “mowing” if they had thought of the roots, which must be dug out, as possible raw material for the manufacture of drugs,
asserts that the authors might have used words to make clear that all parts of the plant, except the seeds, after having been removed from the land on which they are grown, are included in the definition,
suggests that it is possible to understand the present text as including the roots because they are still part of the plant after mowing has taken place, although they have been dug out to be used for the manufacture of the drug, and
suggests that if it is found desirable to revise the Convention it may be advisable to modify the definition of “poppy straw” to remove any possible doubt that it also comprises the roots of the plant.
Comment. This commentary was relied on by the Border Agency as an indication that the underlying purpose of the 1961 Single Convention was to address all parts of the poppy (except the seeds) once separated from the ground. However, this commentary is not directed to the point in issue in this case because it is not addressing why the definition includes the concept of “mowing” and one can see why the roots (in the ground and out of the ground) can be said to be a part of the poppy after mowing if the poppies have been “mowed” however that description is interpreted.
So, the help from this passage is limited to an assertion that it supports a view that the relevant intention was to include the roots however the rest of the poppy was separated from the ground. But such an intention would have been achieved by simply referring to all parts of the poppy except the seeds without any mention of, or qualification by reference to, how it was removed from the ground.
Indeed, it can be said that the result argued for by the Border Agency could be so achieved and so it is difficult to see why the concept of “mowing” was included in the definition if it was not to limit the definition by reference to the method of its separation from the soil in which it was grown.
Inevitably, such separation must have occurred before any question of the exportation or importation of poppy straw would arise.
The commentary on Article 25, relied on by the Appellant includes the following:
until the discovery of an economic and feasible method for the extraction of morphine from poppy straw, the straw was an agricultural waste product which was burned, or at best used as stable litter or cattle fodder,
with the spread of the manufacture of morphine from the straw, the capsules and stems of the plant have become a marketable by-product of cultivation of the opium poppy whether undertaken for the seeds or for opium, and that while the cultivation of the poppy exclusively for its straw would still be uneconomical, the straw can now very often be sold by the cultivator for the manufacture of morphine,
the third draft of the Single Convention provided for the cultivation of the poppy for straw and for the straw itself the same regime as for opium. But the Plenipotentiary Conference found that so strict a regime would be neither justified nor practicable and was led to this view by the consideration that the straw, as such, was not liable to particularly dangerous abuse, and was not likely to be employed as raw material for the clandestine manufacture of morphine,
even with the present advanced methods of morphine extraction employed by legal manufacturers, the average yield of morphine is 0.2% of the quantity of straw used, which means that an average of 500 kgs of straw (which is voluminous and requires large transport and storage facilities) is needed to produce 1 kg of morphine while generally less than 10 kgs of opium are required for this purpose,
the manufacturing process for the extraction of morphine from poppy straw is a difficult one requiring complicated and expensive apparatus and access to water, and that a plant of the size needed for such activities could hardly be concealed from the authorities while the extraction of morphine from opium can easily be carried out with simple equipment in a small kitchen,
although the process of extracting morphine from poppies has been known for more than four decades, no clandestine manufacture of the drug from this raw material has been discovered, nor has any international illicit traffic of significance in the straw, and
the great role which poppy straw plays at present in the legal manufacture of morphine makes it, on the other hand, essential for the proper functioning of the national and international statistical accounting system needed for narcotics control that the amounts of poppies used for the manufacture of alkaloids (small quantities of codeine may appear as a by-product in the manufacture of opium from poppy straw) be made known to the authorities. And while rejecting the application of the full narcotics system to poppy straw the Plenipotentiary Conference therefore included a limited regime for poppy straw which requires Parties to furnish to the Board statistical data on the quantities of poppies which they use for the manufacture of drugs, and on those which they import or export.
That part of the commentary also confirms points I have made by reference to the terms of the 1961 Single Convention that:
the regime of the Single Convention applicable to poppy straw is generally based on the corresponding provisions of Article 4 of the 1953 Protocol, but (a) it requires, however, quarterly statistics on the international trade in the straw, while the Protocol provides for this information only on an annual basis, and (b) it incorporates some control measures provided in the 1925 and 1931 Conventions, and extends to straw the import certificate and export authorisation system of paragraphs 4 – 15, of Article 31 governing drugs,
poppy straw is not a drug for the purposes of the Single Convention and so cannot be the object of illicit traffic as that term is defined in the single Convention (the cultivation or trafficking in drugs contrary to the provisions of this Convention) and so the Parties seem not to be required to apply articles 35 to 37 (headed “action against the illicit traffic”, “penal provision” and “seizure and confiscation”) to the unauthorised import or export of poppy straw, and
generally speaking, it can be said that the Single Convention controls poppy straw only after it has arrived in a drug factory or entered the international trade.
Comment. In my view, together with the resolution recorded in respect of Article 4 of the 1953 Protocol this commentary on Article 25 provides support for the following points:
the 1961 Single Convention (like the 1953 Protocol) was not directed to poppies grown exclusively for ornamental purposes, and so was not directed to the poppy (apart from the seeds) however it was separated or removed from the land in which it was grown,
the concept of “mowing” was included in the definition of poppy straw to limit what was poppy straw,
the reason for this was that contrary to the Plenipotentiary conference poppy straw was not classified as a drug (morphine or opium) and its use was not regarded as liable to particularly dangerous abuse, and
its economic and feasible use was in bulk in the lawful manufacture of morphine and this prompted the need for proper information and statistics on the quantity of poppy straw that was so used and so returns and a licensing system directed to obtaining that information (Articles 20 paragraph 2(b) and 31 paragraphs 4 to 15).
In my view, the investigations triggered by Mitting J provides strong support for the view that:
the licensing and reporting obligations imposed on Parties to the 1961 Single Convention was not intended to apply to opium poppies (papaver somniferum) except the seed however they were separated from the land in which they were grown,
rather, the licensing and reporting system was directed to the legal and generally large scale manufacture of morphine from what had once been regarded as an agricultural waste product and the need for an international accounting system that provided data on the quantities of poppies used by lawful manufacturers of morphine from poppy straw, and so
the concept of “mowing” was continued within the definition of poppy straw to identify what had been regarded as the agricultural waste product and by so doing to limit the extent of the definition by excluding poppies (except the seeds) that had not been “mown” and so poppies that had been removed from the land for ornamental purposes, including floristry.
Is there a separate purposive argument based on the UK legislation?
If the 1971 Act is taken in isolation there might be because poppy straw is included within the definition of Class A drugs. In my view, correctly it was not argued that the 1971 Act should be looked at in isolation from the 2001 Regulations. But it was submitted to me during the hearing that in effect the Crown Court (and the District Judge) were directing their attention to the purpose of the licensing system and were correct in their view that the wide approach to the meaning of “mowing” furthered that purpose and that if the narrower approach urged by the Appellant was taken the licensing system would not serve its underlying purpose and would be difficult or impracticable to operate.
This submission did not go so far as adopting the unexplained view of the Crown Court that to interpret “mowing” as excluding any particular means of harvest would make a nonsense of the definition of “poppy straw”, but was along those lines. It also mirrored an unsupported and unexplained assertion in the skeleton argument that the approach advocated by the Appellant “would lead to an absurd loophole where prohibition on importation of poppy straw at the border would depend on the precise method [by which] the good were obtained from the soil at their place of origin. Such an interpretation of the legislation would lack clarity and would lead to confusion in its implementation.”
Although the Border Agency had had ample opportunity to explain and support this submission on purpose and effect by reference to the licensing system and its operation it had not done so with the result that it was in effect simply an unsupported assertion. In my view this submission or assertion is not self-evident and needs explanation because, for example, a cursory examination of the photographs shows that these poppy head and poppy heads and stalks had not been “mown” in the ordinary sense of that word and the material provided about the 1961 Single Convention provides support for the view that “mowing” was included to define poppy straw by reference to a means of removing it from the land and if that limitation to its meaning was not intended it is not easy to see why a means of removal from the land was included in the definition.
Counsel for the Border Agency was not in a position to further explain or support the submission before or after the luncheon adjournment and so took up the opportunity for the Border Agency to do so by way of further evidence or submission.
What was provided was a witness statement made by a Senior Executive Officer at the Home Office working in the Drugs and Firearms Licensing Unit whose Section’s primary responsibility is the licensing of companies to import and export controlled drugs and precursor chemicals.
This evidence describes the licensing system and makes the point that the process for applying for and getting a licence would be straightforward and inexpensive.
But it does not expressly address and so explain and support the written or oral purposive submission that was made and thus that if the Appellant was right the purpose of the licensing system would not be served or there would be an “absurd loophole”, lack of clarity or confusion in the implementation of the licensing system.
This silence supports the conclusion that there would be no such purposive failure and no such loophole, lack of clarity or confusion.
Also what the evidence includes supports the same conclusion because it confirms that no licence has previously been applied for by any importer of dried poppy heads (and no mention is made of any other seizures of dried poppy heads), only two pharmaceutical companies are identified as frequent applicants for licences for poppy straw, licences are granted to holders of National Drug Control System accounts, the relevant licensing page from GOV.Uk referred to, which was updated on 23 April 2017, contains nothing to suggest that an importer of dried poppy heads with or without stalks needs to apply for a licence to import controlled drugs.
The Border Agency has therefore failed to provide any or any convincing further explanation for its purposive argument on:
the meaning of the definition of poppy straw by reference to the 1961 Single Convention and the UK legislation, or by reference to the UK legislation alone on the basis that it could and was intended to comply with, and extend wider than, the obligations under the 1961 Single Convention, and
the lack of clarity, confusion and practical difficulties that would exist if “mowing” is not construed so as to include all methods of separation from the ground.
The further evidence also omits any reference to whether and if so how the international data system required by the 1961 Single Convention relating to the lawful manufacture of morphine from poppy straw would be operated if the Border Agency’s argument is right and so the requirements for licences for the import and export of poppy straw extended beyond those to whom they have been granted in the past and so to the consignments of poppy heads (with and without) stalks that the Appellant imported and were seized.
Conclusion on the first two questions posed
An appeal by way of case stated is an appeal to a superior court on the basis of a set of facts specified by an inferior court for the superior court to make a decision on the application of the law to those facts (see, for example, CPR PD 52E paragraph 1.1). As I have already indicated, the point of law that is determinative of the first two questions is one of statutory construction. So, whether, as those questions are posed, the Crown Court was entitled to find that the goods were “poppy straw” and to interpret “mowing” in the way it did turn on that point of law to which there is one answer. Correctly, it was not argued that this was a case in which a judicial review approach could be taken of upholding the conclusion of the decision maker on the basis that he applied the right criterion to the meaning of a word that has a range of meaning (see for example Reg v Monopolies Commission Ex p S Yorks Ltd [1993] 1 WLR 23 at 32 F/H).
In my view, the Crown Court reached the wrong conclusion on the meaning of the statutory definition for the reasons set out above. In summary, they are:
as a matter of language, the inclusion of the concept of mowing into the definition limits the width or extent of what is poppy straw,
as a matter of language, if the wide approach taken by the Crown Court is right there would be no need for any reference to mowing or any other means of removal from the land because before any issue of exportation and importation arise the poppies must have been separated from the land,
as a matter of the ordinary use of language, whole poppy heads (with and without stalks) have not been mown,
it is easy to see that the poppy heads (with and without heads) in issue were harvested with care and, as matter of the ordinary use of language, were not mown,
the wide approach taken by the Crown Court to the interpretation of the word or concept of mowing is not supported by the purpose or effect of the 1961 Single Convention, and
the wide approach taken by the Crown Court to the interpretation of the word or concept of mowing is not required to fulfil the underlying purposes of the UK licensing regime that applies to poppy straw or to avoid any lack of clarity, confusion or difficulties in its implementation.
I do not place weight on the ordinary meaning of “straw” because “poppy straw” is defined in the 1971 Act. However, I note that the ordinary use of that word links to the view that the 1961 Single Convention was addressing what had been regarded as an agricultural waste product.
Conclusion on the third question posed
To my mind correctly, the third question was not pursued with any vigour before me by either side because the determinative question is one of law. It is apparent that the Crown Court would have reached the same conclusion without placing reliance on the opinion of the forensic and botanical experts and, in any event, it is unclear to me what weight the Crown Court put on that evidence. However, in my view, the legal issue was not within the forensic or botanical expertise of those experts and so their comments or opinion on it could be of no relevance or assistance unless linked by the Border Agency to its purposive argument. It did not do this before me or, so far as I am aware, before the Crown Court.
Rather, this expert evidence was relevant and only relevant to, and was decisive on, the issue whether the poppies were papaver somniferum.
Overall conclusion
This appeal succeeds. On the correct interpretation of the statutory definition of poppy straw the two consignments in issue did not comprise poppy straw because the relevant poppies had not been mown and so the relevant poppy heads (with and without stalks) were not parts of the poppy after mowing. Rather, they had been harvested or picked with care in a way that preserved those heads for use for ornamental or decorative purpose, including floristry.