Regina v Kenning

Factual and Procedural Background

On 15 May 2007, in the Crown Court at The City, the Appellant pleaded guilty to producing a controlled drug of Class C and possession of a firearm without a certificate. Subsequently, three appellants were tried on indictments charging conspiracy to aid and abet and conspiracy to counsel the production of cannabis, a controlled Class C drug. The appellants were convicted on various counts related to these charges and sentenced to different terms of imprisonment.

The appellants operated businesses selling hydroponic equipment and cannabis-related products. Undercover police visits to the premises recorded discussions about growing cannabis, including anti-detection measures. Police searches uncovered cannabis plants, drug paraphernalia, and an antique firearm at the Appellant’s home.

The prosecution faced difficulty proving aiding and abetting solely based on sales of equipment, as these could be used lawfully. Charges were brought based on conspiracy to aid and abet or counsel the production of cannabis. The defence did not challenge these counts pre-trial. After evidence, a submission of no case to answer was made, arguing that conspiracy requires an agreement to commit an offence by the conspirators themselves, which was not established. The trial judge rejected this submission and directed the jury accordingly. The appellants appealed against their convictions.

Legal Issues Presented

1. Whether an agreement to aid and abet or to counsel the production of a controlled drug constitutes a statutory conspiracy under section 1(1) of the Criminal Law Act 1977.
2. Whether the trial judge’s directions to the jury on the offence of aiding and abetting and counselling were legally sound.
3. Whether the evidence supported the conviction for possession of cannabis with intent to supply.
4. Whether the defective indictment on counts charging conspiracy to aid and abet or counsel invalidates the related convictions and the proceedings.
5. Whether a retrial is appropriate following quashing of convictions based on defective indictments.
6. Whether the court should exercise its powers to adjust sentences to facilitate the Appellant’s immediate release on remaining counts.

Arguments of the Parties

Appellants' Arguments

• The offence of conspiring to aid and abet is unknown to law and cannot constitute a statutory conspiracy under the Criminal Law Act 1977.
• A statutory conspiracy requires an agreement to commit an offence by the conspirators themselves, which was not established as none had agreed to cultivate cannabis.
• The trial judge’s directions on aiding and abetting and counselling were defective.
• The summing-up did not adequately address the facts concerning possession with intent to supply.

Prosecution's Arguments

• The indictment was drafted to circumvent difficulties in proving an agreement involving the primary offender.
• There is a recognised offence of conspiracy to aid and abet or counsel under the common law and section 1(1) of the 1977 Act.
• It is not necessary that the primary offence is actually committed for aiding and abetting to be an offence.
• Convictions on counts 1 and 2 were valid and the trial judge’s directions were correct.
• In the alternative, if convictions are quashed, a retrial should be considered.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Hollinshead [1985] AC 975	Whether conspiracy to aid, abet, counsel or procure an offence is legally possible under section 1(1) of the Criminal Law Act 1977.	The Court endorsed the Court of Appeal's conclusion that an agreement to aid and abet an offence cannot constitute a statutory conspiracy; the House of Lords left the issue open but did not overturn that conclusion.

Court's Reasoning and Analysis

The court examined the legal framework governing conspiracy under section 1(1) of the Criminal Law Act 1977, which requires an agreement to pursue a course of conduct that will necessarily amount to or involve the commission of an offence by one or more parties to the agreement.

The court analysed the nature of aiding and abetting as accessory conduct dependent on the commission of the primary offence by another person. Since the accessory acts alone do not constitute an offence absent the primary offence, an agreement to aid and abet does not satisfy the statutory requirement that the agreed course of conduct will necessarily amount to the commission of an offence by a party to the agreement.

The court cited academic authority from Smith and Hogan's Criminal Law and the Court of Appeal’s reasoning in Hollinshead, which concluded that an agreement to aid and abet an offence is not a conspiracy under the Act.

Accordingly, the court held that the indictments charging conspiracy to aid and abet or counsel were offences unknown to law. The judge should have upheld the submission of no case to answer on these counts. The directions to the jury were defective, rendering the convictions on these counts unsound and requiring them to be quashed.

Regarding the count of possession with intent to supply, the court found the judge’s directions adequate and the evidence sufficient to support the conviction. This count stood independently and was unaffected by the defects in the conspiracy counts.

The court considered whether the proceedings were a nullity due to defective indictments. It concluded that the proceedings relating to the conspiracy counts were nullities, but given the remaining valid counts, a retrial on the quashed counts was inappropriate. Fresh charges would be necessary for any further prosecution.

Finally, the court declined to exercise its powers under section 4 of the Criminal Appeal Act 1968 to adjust sentences to facilitate the Appellant’s immediate release, despite submissions regarding bail and home detention curfew eligibility.

Holding and Implications

The court held that:

• The convictions on counts charging conspiracy to aid and abet and conspiracy to counsel the production of cannabis are quashed.
• The indictment counts 1 and 2 charged offences unknown to law, and the trial judge’s directions on these counts were legally defective.
• The conviction for possession of cannabis with intent to supply (count 3) is upheld, as it was supported by sufficient evidence and proper directions.
• The proceedings relating to the conspiracy counts are nullities, but no retrial will be ordered on these counts; fresh charges would be required for further prosecution.
• The court declined to adjust sentences to allow immediate release of the Appellant on remaining counts.

The decision directly affects the parties by quashing specific convictions and confirming others, but it does not establish new precedent beyond reaffirming the legal position on conspiracy to aid and abet under the Criminal Law Act 1977.