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

1. 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.
2. 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.
3. 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.
4. 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:

1. The THC content of cannabis products remains irrelevant under UK law unless EU compatibility is properly pled.
2. Defence counsel must lodge and intimate compatibility-issue minutes timeously, or risk forfeiting potentially decisive EU-law arguments.
3. 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.