The Primacy of Procedural Compliance over EU-Law Defences:
Dougall v HMA and the Necessity of a Compatibility-Issue Minute
Introduction
In Dougall v HMA ([2025] HCJAC 35) the Scottish Appeal Court
(High Court of Justiciary) was asked to quash Darren Dougall’s conviction
for importing, possessing and supplying cannabis and tetrahydrocannabinol
(THC). The appellant argued that, under European Union law in force at
the material time, hemp products containing less than 0.2% THC could not
lawfully be treated as controlled drugs; therefore, the relevant
provisions of the
Misuse of Drugs Act 1971 (MDA) and Customs and Excise Management Act 1979
(CEMA) were incompatible with Article 34 Treaty on the Functioning of
the European Union (TFEU). Relying on the English Court of Appeal
decision in R v Margiotta [2023] EWCA Crim 759, Dougall contended
that his prosecution constituted an unlawful restriction on
intra-EU trade in “industrial hemp.”
The Court dismissed the appeal, holding that:
(1) no compatibility-issue minute had been lodged timeously or intimated to
the Advocate General for Scotland; and
(2) in the absence of such a minute, the domestic statutory regime
prevailed and rendered the THC level irrelevant. The decision therefore
establishes a procedural precedent: an accused cannot rely on EU-law
incompatibility unless the issue is properly raised in advance in
accordance with the Criminal Procedure (Scotland) Act 1995 (s.288ZA) and
the compatible-issue rules.
Summary of the Judgment
- The appellant was convicted on four counts—three relating to cannabis
and THC, one to cocaine—after customs discovered imported plant
material labelled “tea”, later found to be cannabis.
- At trial Dougall attempted, belatedly, to introduce a
compatibility-issue minute asserting that EU rules exempted low-THC
hemp from control and, consequently, the prosecution contravened
Article 34 TFEU. The sheriff refused to receive the minute because it
was raised on the first day of trial without the required notice.
- On appeal, Dougall alleged misdirection: the sheriff told the jury that
THC levels were “irrelevant” and that cannabis is a controlled drug
“irrespective of strength.” These statements, he claimed, ignored
Margiotta.
- The Appeal Court (Lord Justice Clerk, Lord Matthews delivering the
opinion, and Lord Armstrong) held that in the absence of a duly
intimated compatibility-issue minute, only domestic law applied. Under
the MDA, cannabis is controlled regardless of THC concentration; the
sheriff was therefore correct.
- The Court further ruled that the jury were properly directed regarding
Dougall’s
s.28(3) MDA defence (lack of knowledge) and
the Datson criteria for CEMA importation offences.
Consequently, no miscarriage of justice had occurred.
Analysis
3.1 Precedents Cited
- R v Margiotta [2023] EWCA Crim 759 – Held that, under
EU law, hemp containing ≤0.2% THC is ordinary merchandise; UK
authorities could not criminalise its import absent a public-health
justification under Article 36 TFEU.
- R v Datson [2022] EWCA Crim 1248 – Set out elements of
fraudulent evasion under CEMA s.170(2). Relevance: an honest belief
that goods were not prohibited can defeat the mens rea requirement.
3.2 Legal Reasoning of the Court
- Procedural Bar – A compatibility-issue minute is mandatory
when an accused alleges that prosecution under domestic law is
incompatible with enforceable EU rights. The minute must be raised in
advance and intimated to the Advocate General (
s.288ZA
Criminal Procedure (Scotland) Act 1995). Dougall’s minute, produced
on the first day of trial and never intimated, was therefore
incompetent.
- Substantive Irrelevance of THC Levels under Domestic Law –
The MDA schedules criminalise “cannabis” simpliciter; they do not
create a potency threshold. Absent procedural access to EU law, the
court must apply the domestic definition. Since all parties agreed
the seized material was cannabis, the Crown had proved the
actus reus.
- Knowledge-based Defences – For supply offences, s.28(3) MDA
allows acquittal if the accused neither knew nor suspected that the
substance was a controlled drug. For importation, Datson
confirms that an honest belief that the goods are not prohibited is
relevant. The sheriff put both matters squarely to the jury.
- Jury Directions – The trial judge’s statement that THC levels
were “irrelevant” was accurate in law. Although EU law could
theoretically affect relevance, it was procedurally excluded. The
judge nonetheless told the jury that Dougall’s belief about legality
(including any reliance on EU law) could be considered when assessing
his knowledge—thus, if anything, erring in the appellant’s favour.
3.3 Impact of the Decision
The case cements a clear procedural rule in Scottish criminal practice:
EU-law or human-rights incompatibility arguments are inadmissible
unless raised timeously by a compatibility-issue minute and notified to
the Advocate General.
Substantively, the decision reins in potential reliance on Margiotta
within Scotland. While Margiotta remains persuasive authority
on the substantive EU law of hemp, it will not assist an accused who fails
to comply with compatibility-issue procedures. The ruling therefore:
- Protects prosecutorial certainty under the MDA despite ongoing debates
about low-THC cannabis.
- Signals that Scottish courts may be receptive to an
Article 36 TFEU/public-health justification if
properly argued. Hence, future litigants who wish to test
Margiotta in Scotland must follow the procedural rules and
anticipate a substantive rebuttal under Article 36.
Complex Concepts Simplified
- Compatibility-Issue Minute – A formal written notice
in Scottish criminal procedure asserting that applying domestic law in
the case would breach rights protected by EU law or the European
Convention on Human Rights. It must be lodged early and served on the
Advocate General so that the UK Government may intervene.
- Article 34 TFEU – Prohibits “quantitative
restrictions” and measures of equivalent effect between Member
States—basically a ban on unjustified impediments to free movement of
goods.
- Article 36 TFEU – Provides exceptions to Article 34,
permitting import restrictions justified on grounds such as public
health, provided they are not disguised protectionism.
- Cannabis vs. Hemp – Botanically identical.
“Industrial hemp” refers to cannabis plants bred to contain very low
THC (<0.2% under EU rules). Under UK domestic legislation, potency is
irrelevant unless the Home Office grants a specific licence.
- Section 28(3) MDA Defence – Allows an accused charged
with supply-related offences to avoid conviction by proving lack of
knowledge that the substance was a controlled drug.
- CEMA s.170(2) – Makes it an offence to be knowingly
concerned in fraudulent evasion of import prohibitions. Mens rea
requires knowledge that the goods were subject to any prohibition,
not knowledge of the goods’ precise nature.
Conclusion
Dougall v HMA does not resolve the substantive tension between
UK drug legislation and EU single-market rules. Instead, it emphasises
that procedural gateways control access to substantive
defences. An accused who seeks to invoke EU law must
scrupulously comply with compatibility-issue requirements; failure to do
so will leave the court no choice but to apply domestic law in its
unvarnished form.
The judgment therefore offers three key takeaways:
- The THC content of cannabis products remains irrelevant under UK law
unless EU compatibility is properly pled.
- Defence counsel must lodge and intimate compatibility-issue minutes
timeously, or risk forfeiting potentially decisive EU-law arguments.
- Future challenges to the criminalisation of low-THC hemp in Scotland
will need to confront not only Margiotta but also the
state’s likely reliance on Article 36 TFEU to justify restrictions on
public-health grounds.
By intertwining procedural rigour with substantive outcomes,
Dougall stands as a potent reminder that courtroom success often
turns less on the brilliance of legal theory than on timely procedural
compliance.