Introduction

This appeal arose from a series of importations and sales of CBD hemp products marketed as low‑THC cannabis. The appellant, Mr Patel, pleaded guilty to three counts of fraudulent evasion of the prohibition on importation of controlled drugs, contrary to section 170 Customs and Excise Management Act 1979 (CEMA 1979), and one count of possession of cannabis with intent to supply, contrary to section 5(3) Misuse of Drugs Act 1971 (MDA 1971). He received concurrent 14‑month sentences, suspended for 24 months. With leave of the Full Court, he appealed his convictions, advancing four grounds: that the material was not a controlled drug in light of R v Margiotta; that his pleas on the importation counts and the possession with intent count were vitiated by erroneous advice; and that his prosecution breached Article 7 ECHR owing to uncertainty in the law.

The case sits at the intersection of drug control law, EU free‑movement principles, and the law on impugning guilty pleas. It provided the Court with an opportunity to clarify the reach of Margiotta, the effect of Brexit on EU‑law defences, the evidential threshold for raising “low‑THC” arguments, and the proper application of Tredget/Boal when defendants seek to undo pragmatic guilty pleas.

Summary of the Judgment

• The appeal was dismissed on all grounds. The Court affirmed that Articles 34 and 36 TFEU ceased to have direct effect in England and Wales after 11pm on 31 December 2020 (para 61). Accordingly, EU free‑movement arguments do not assist for conduct after that date (counts 3 and 4, and count 5) (para 66).
• Margiotta was distinguished and confined to its facts. In particular, Margiotta turned on proved THC levels not exceeding 0.2%—an evidential feature absent here (the Crown conceded only “less than 1%”) (para 65). The Court noted that had the Irish High Court’s decision in Bogusas been cited, Margiotta might have been decided differently (paras 63‑65).
• The guilty pleas were neither equivocal nor vitiated by erroneous advice. The appellant had been properly advised about possible defences, including lack of knowledge under s170 CEMA and a s28 MDA defence, but persisted following a clear police warning (paras 67‑75). There was no realistic prospect that such defences would probably have succeeded as required by Tredget/Boal.
• The Article 7 ECHR argument failed: the law is clear that “cannabis” is controlled under the MDA irrespective of THC level; the appellant was explicitly warned his products were illegal; and reliance on a “0.2% THC myth” was not a basis to negate criminal liability (para 76).

Key doctrinal outcomes:

• EU free‑movement defences are unavailable post‑Brexit (para 61), and even for pre‑Brexit conduct, they are only potentially relevant where the defendant can prove the Margiotta‑type low‑THC factual predicate (para 65).
• “Cannabis” remains a controlled drug under the MDA regardless of THC content; a de minimis argument is foreclosed by Boyesen (paras 20, 24, 52, 76).
• Tredget/Boal principles strictly limit appeals after guilty pleas; “pragmatic” pleas remain binding unless the overlooked defence would probably have succeeded (paras 68‑75).

Background and Issues

Mr Patel informed Wiltshire Police in August 2020 that he intended to sell CBD hemp/oil products with “zero or low THC” and cited the widespread “0.2% THC” belief. No initial response was given. On 19 October 2020, customs seized approximately 1.3kg herbal material testing positive for THC. On 20 November 2020, PC Hemns warned Patel—explicitly and in writing—that cannabis and products containing THC are controlled (class B), that the 0.2% belief is a misconception, and that flowers and hash are illegal regardless of low THC (paras 4‑5). Patel nonetheless continued importing and selling. Further packages were seized; he was arrested on 14 January 2021 and more material found (paras 6‑7).

The indictment contained six counts; counts 2‑4 concerned importations between 20 October 2020 and 11 January 2021; count 5 concerned possession with intent to supply on 14 January 2021 (paras 8‑10). On 22 November 2022, Patel indicated guilty pleas to counts 2‑5 on a basis of plea that accepted suspicion about illegality post‑warning but claimed belief in compliance (para 13). He received a Goodyear indication, pleaded guilty, and was sentenced in February 2023 (paras 14‑16).

On appeal, Patel advanced four grounds (para 17): (i) Margiotta meant the herbal material was not a controlled drug; (ii) and (iii) guilty pleas were vitiated by erroneous advice, given putative defences (s170 knowledge; s28 MDA); and (iv) Article 7 ECHR breach due to legal uncertainty. The prosecution opposed each ground (para 18).

Detailed Analysis

Precedents and Authorities Cited

• MDA 1971, s2 and s37: Defines “cannabis” as any plant or part of the genus Cannabis, save for mature stalk, fibre from mature stalk, and seed after separation (para 20). THC level is not an element of the definition.
• MDA 1971, ss3, 4, 5: Prohibit importation (s3) and supply (s4); criminalise possession with intent to supply (s5(3)), subject to s28 (paras 21‑23).
• Boyesen [1982] AC 768: De minimis argument rejected—if the controlled drug is “visible, tangible and measurable”, possession is established. Usability is irrelevant (para 24). This undercuts any argument that low THC renders material non‑controlled for MDA purposes (paras 52, 76).
• MDA 1971, s28(2)-(3): Knowledge defences—an accused must prove they neither believed nor suspected the substance was a controlled drug; ignorance of the particular controlled drug is insufficient if it was nonetheless a controlled drug (para 25).
• CEMA 1979, s170(2) and Datson [2022] EWCA Crim 1248: For fraudulent evasion, prosecution must prove deliberate, dishonest evasion and that the accused knew the goods were subject to prohibition. A genuine mistake of law about the prohibition can, exceptionally, afford a defence (para 27). Patel’s post‑warning state of mind undermined such a defence (paras 70‑72).
• Tredget [2022] EWCA Crim 108 and Boal [1992] QB 591: Appeals after guilty pleas succeed only where a plea is equivocal or vitiated and the overlooked defence would probably have succeeded; or where a legal obstacle to trial existed; or where the defendant did not commit the offence. Clear injustice is the standard (paras 28‑29).
• EU law and CJEU decisions:
  • Hammarsten (C‑462/01): Industrial hemp cultivation constraints and free movement; context focused on agriculture and aid regimes (paras 30, 62).
  • Josemans (C‑137/09): Narcotic drugs (including cannabis) are generally prohibited from marketing across Member States except for strictly controlled medical/scientific channels (paras 32‑33, 44‑45).
  • BS, CA (C‑663/18): CBD with <0.2% THC not a “narcotic drug” within Single Convention; therefore potentially within Articles 34/36 TFEU, subject to public‑health justifications (paras 34‑35).
  • Margiotta [2023] EWCA Crim 759: Crown Court stay of proceedings upheld where defendants imported low‑THC cannabis (<0.2%) lawfully grown in Italy; on the facts, Articles 34/36 were engaged and the Crown adduced no Article 36 justification. The Court of Appeal stressed the unsatisfactory factual record and emphasised factual specificity (paras 36‑42).
  • Bogusas [2022] IEHC 621 (Irish High Court): Unauthorised trade in narcotic/psychotropic drugs lies outside Article 34; 0.2% cultivation threshold is not a measure of safety of non‑medicinal use of THC; Member States may justify restrictions under Article 36 on public‑health grounds. Activities in breach of the Single Convention are res extra commercium (paras 43‑45).

The Court’s Legal Reasoning

1) EU free‑movement defences and the status of Margiotta

• Post‑Brexit position is dispositive for later conduct. The Court “recorded [its] acceptance” that Articles 34 and 36 TFEU ceased to have direct effect after 31 December 2020 (para 61). Thus, for importations forming counts 3–4 and the possession with intent count (count 5), EU free‑movement arguments were simply unavailable (para 66).
• Pre‑Brexit, the factual threshold matters. For earlier importations (count 2, and potentially some part of count 3 depending on dates), Margiotta could only assist if the defence proved the same critical fact underpinning that decision: THC levels not exceeding 0.2% (para 65). Here, the Crown conceded only “less than 1%” and no admissible evidence established ≤0.2%. No application was made to adduce fresh evidence. This evidential deficit alone distinguished and defeated reliance on Margiotta (para 65).
• Doctrinal direction of travel: Josemans/Bogusas and the Single Convention. While not overruling Margiotta, the Court said it was “very regrettable” that Bogusas was not cited in Margiotta and considered that, if it had been, “this court in Margiotta may well have reached a different conclusion” (para 63). The Court highlighted that EU rules on the single market in hemp sit uneasily with domestic control of narcotics and psychotropic substances and that cases like Hammarsten and BS, CA arose in very different factual contexts (paras 62‑63). The implication is clear: arguments placing cannabis importation within Article 34 must overcome the baseline position in Josemans (general prohibition) and the Single Convention obligations; absent precise proof as to content and status, the MDA regime controls.

2) The MDA definition of cannabis and the irrelevance of THC level to liability

• “Cannabis” under s37 MDA includes any part of the plant other than the limited exclusions of mature stalk, fibre from mature stalk, and seed separated from the plant. Leaves and flowers—such as “CBD flowers”—are controlled. THC percentage is not an element of the offence (para 20).
• Boyesen forecloses de minimis/usability arguments: if the drug is “visible, tangible and measurable,” possession is made out (para 24). That principle, transposed here, defeats an argument that a low level of THC renders the herbal material non‑controlled (paras 52, 76).

3) Appeals after guilty pleas: Tredget/Boal applied

• The Court found the appellant had been “perfectly properly” advised on all matters other than the later‑emerging Margiotta point (para 69), had been warned in unequivocal terms by PC Hemns (paras 4‑5, 70), and had chosen to plead guilty for pragmatic reasons following a Goodyear indication (paras 14‑15, 72, 74).
• Even if Margiotta had been available at the time, further testing could well have shown THC >0.2% (para 73). It was therefore impossible to say a defence would probably have succeeded—a precondition to vitiating a plea under Tredget/Boal (paras 68‑75).
• The pleas were not equivocal: the appellant entered unqualified guilty pleas after advice; seeking sentencing on an agreed basis does not make a plea equivocal (para 74).

4) Article 7 ECHR (nullum crimen sine lege)

• The Court rejected the contention that the law was unclear. The MDA clearly criminalises importation, possession, and supply of “cannabis” as defined (para 76). The “0.2% THC” belief is a misconception for UK criminal law purposes, and Patel had been warned accordingly. Persisting in business without legal advice, licensing, or targeted testing did not reveal legal uncertainty; rather, it reflected a decision to disregard a clear legal position (paras 4‑5, 76).

Evidential and Procedural Observations

• Evidential threshold for low‑THC arguments: Defendants seeking to invoke Margiotta in historic, pre‑Brexit conduct must adduce reliable scientific evidence proving ≤0.2% THC. Concessions of “<1%” will not suffice (para 65).
• Consequences of guilty pleas for evidence preservation: Following plea, samples were destroyed “within a short time after the sentencing hearing” (para 73). This underlines the strategic importance—on both sides—of timely testing and preserving exhibits if a low‑THC defence is contemplated.
• Weight of clear police warnings: A contemporaneous warning (as here) significantly undermines both s170 knowledge defences and s28 MDA defences predicated on absence of belief or suspicion (paras 70‑72).

Impact and Significance

On drugs law and the CBD market:

• Clarifies the UK criminal law baseline: Cannabis remains a controlled drug regardless of THC content; low‑THC flowers are not exempt merely by reference to a “0.2%” figure. The familiar “0.2% myth” is a cultivation aid threshold within EU agricultural policy and has no automatic bearing on UK criminal liability under the MDA (paras 20, 52, 76).
• Licensing remains central: Absent a Home Office licence, importation/supply of plant material comprising leaves/flowers engages offences under MDA/CEMA. Pure CBD (without controlled cannabinoids) may be outside the MDA but is subject to other regimes; the presence of any controlled cannabinoid (intended or otherwise) likely brings the product within MDA control (para 60).

On EU‑law defences post‑Brexit:

• Articles 34/36 TFEU are no longer directly effective in the UK after 31 December 2020 (para 61). For conduct thereafter, EU free‑movement arguments cannot be relied upon in criminal prosecutions for cannabis importation/supply (paras 61, 66).
• For pre‑Brexit conduct (residual/historic cases), Patel sets a demanding evidential bar for defendants: only with clear proof of ≤0.2% THC and a proper BS, CA‑type analysis does Margiotta potentially bite—and even then, Bogusas/Single‑Convention considerations loom large (paras 62‑65).

On appeals after guilty pleas:

• Reaffirms finality and high threshold: The Court’s application of Tredget/Boal underscores that defendants who take a pragmatic plea in light of sentencing indications and contemporaneous warnings will rarely succeed in setting aside convictions unless a defence would probably have succeeded (paras 68‑75).
• Professional responsibility dynamics: The Court deprecated attempts to cast blame on former counsel where contemporaneous advice was adequate and strategic choices were the client’s (paras 67‑69).

Practical guidance for stakeholders:

• Defence: If a low‑THC argument is contemplated, secure independent, admissible testing showing ≤0.2% THC; preserve samples; appreciate that post‑Brexit such arguments will not avail for conduct after 31 December 2020; carefully evaluate risks of “pragmatic” pleas where samples may be lost.
• Prosecution: For historic conduct where EU arguments are raised, obtain precise THC quantification; be prepared to demonstrate public‑health justifications under Article 36 where appropriate (though now largely academic post‑Brexit).
• Commercial operators: Do not rely on informal “0.2%” beliefs; seek licensing where plant material is concerned; ensure rigorous supply‑chain testing; heed official guidance and explicit police warnings.

Complex Concepts Simplified

• “Cannabis” under the MDA: Any part of the cannabis plant—especially leaves/flowers—is controlled. Only mature stalk, fibre from mature stalk, and seeds (after separation) are excluded. THC percentage is not part of the definition.
• “0.2% THC”: An EU agricultural policy threshold for hemp cultivation eligibility, not a UK criminal law safe harbour. It does not de‑criminalise cannabis products containing THC.
• Articles 34 and 36 TFEU: Free movement of goods (Art 34) and public‑interest justifications (Art 36). After 31 December 2020, these provisions have no direct effect in UK courts. Pre‑Brexit, they could apply only in narrow, fact‑specific circumstances—especially where products are not “narcotic drugs” within the Single Convention and where health justifications are not shown.
• Single Convention / “res extra commercium”: International drug control treaties treat unauthorised narcotics as outside ordinary commerce; marketing is generally prohibited except under strict medical/scientific control. Bogusas applies this reasoning to limit free‑movement claims.
• Fraudulent evasion (CEMA s170): Requires deliberate, dishonest evasion of an import prohibition, knowing the goods are prohibited. Exceptional, genuine mistake of law may negate the mental element (Datson), but contemporaneous warnings make that difficult.
• MDA s28 defence: A defendant must prove they neither believed nor suspected the substance was a controlled drug. It is not enough to say they did not know which particular drug it was.
• Goodyear indication: A judge’s indication of the maximum sentence that would be passed on a guilty plea at that stage. It informs, but does not coerce, a decision to plead.
• Equivocal plea: A guilty plea is equivocal if accompanied by assertions inconsistent with guilt. Pleading guilty while seeking sentencing on an agreed factual basis does not, without more, render a plea equivocal.
• Per incuriam: A decision reached in ignorance of relevant authority. The Court did not hold Margiotta per incuriam but signalled that, had Bogusas been considered, the outcome might have differed (para 63).

Conclusion

Patel v R cements three key propositions in the criminal law of controlled drugs post‑Brexit:

• First, EU free‑movement defences no longer assist defendants for post‑31 December 2020 conduct; even for earlier conduct, they are fact‑sensitive and require rigorous proof that the products fall within the narrow bands contemplated by BS, CA/Margiotta—in particular, ≤0.2% THC (paras 61, 65‑66).
• Second, cannabis remains a controlled drug regardless of THC content under the MDA; de minimis arguments fail under Boyesen, and the “0.2% myth” has no traction in UK criminal liability (paras 20, 24, 52, 76).
• Third, appeals against conviction following guilty pleas face a high bar. Unless an overlooked defence would probably have succeeded, Tredget/Boal prevents setting aside convictions; explicit police warnings and the defendant’s own admissions of suspicion will usually be fatal (paras 68‑75).

While the Court did not overrule Margiotta, it decisively confined it to its facts and indicated that the reasoning in Bogusas and the Single Convention would likely have altered the analysis had they been ventilated. As Fortson KC presciently observed (Crim LR 2023, 676), Margiotta has a “short shelf‑life” in UK criminal proceedings. Patel makes that prediction good, re‑centering the MDA 1971 as the governing framework and reinforcing the finality of advised guilty pleas in drug importation cases.