Appeal against Conviction by Darren Dougall against HMA (High Court of Justiciary)

Factual and Procedural Background

The Appellant operated an online shop selling numerous products, many described as cannabidiol (CBD) products, which are not controlled drugs. On 31 July 2020, customs officers intercepted three packages addressed to the Appellant at Edinburgh Airport, sent from the USA and labelled as "tea". Scientific analysis revealed the packages contained cannabis. Warrants led to the seizure of a substantial amount of material from the Appellant's home, including cannabis, tetrahydrocannabinol (THC), cannabidiol (CBD), and some negative results. The Appellant was cautioned and charged on 8 September 2020, denying illegality by stating the material was industrial hemp, which he claimed was not illegal.

The Appellant was convicted on four charges: (1) fraudulent evasion of the prohibition on importation of cannabis contrary to the Customs and Excise Management Act 1979; (2) supplying cannabis contrary to the Misuse of Drugs Act 1971; (3) supplying THC contrary to the Misuse of Drugs Act 1971; and (4) possession of a small amount of cocaine, which is not the subject of this appeal.

During the trial, a compatibility issue minute was presented late, contending that scientific reports failed to differentiate hemp from controlled substances based on THC levels, which was argued to be contrary to EU law and Article 7 of the European Convention on Human Rights (ECHR). The sheriff refused to admit this minute due to its late presentation, a decision upheld on appeal. The Appellant relied on a statutory defence under section 28(3) of the Misuse of Drugs Act 1971, concerning knowledge and belief about the controlled nature of substances.

The trial judge directed the jury that THC levels were irrelevant to determining whether the material was cannabis under domestic law, and rejected the Appellant's EU law argument based on the case of R v Margiotta. The Appellant was allowed to advance his belief about the legality of the substances to the jury, who were instructed to acquit if reasonable doubt existed about his knowledge of the controlled nature of the drugs.

Legal Issues Presented

1. Whether, under EU law as applied in the UK at the material time, it was unlawful to criminalise the importation, possession, or supply of cannabis or derivatives with THC content below 0.2%.
2. Whether the Misuse of Drugs Act 1971 provisions criminalising such material constituted unlawful interference with the free market provisions of Article 34 of the Treaty on the Functioning of the European Union (TFEU).
3. The admissibility and timing of a compatibility issue minute raising EU law arguments under Article 7 ECHR.
4. The relevance of THC levels to the determination of whether substances are controlled drugs under domestic law and the impact on the Appellant's statutory defence under section 28(3) of the Misuse of Drugs Act 1971.
5. The correctness of the trial judge’s directions to the jury regarding the irrelevance of THC levels and the Appellant’s belief about the legality of the substances.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that under EU law, it was not an offence to import, possess, or supply cannabis or derivatives with THC content below 0.2%, relying on the case of R v Margiotta.
• The Misuse of Drugs Act 1971 criminalisation of such material unlawfully interfered with the free market provisions of Article 34 TFEU.
• The scientific evidence at trial failed to establish THC levels, which was critical to distinguishing lawful hemp from illegal cannabis.
• The Appellant contended that his defence based on his knowledge and belief about the THC levels and legality of the substances was undermined by the trial judge’s directions that THC levels were irrelevant.
• The late presentation of the compatibility issue minute was regrettable but raised a substantive point about the incompatibility of the prosecution with EU law and ECHR Article 7.

Respondent's Arguments

• The prosecution contended that it was only necessary to prove the substances were controlled drugs as specified, which was agreed.
• There was no live European law issue before the court as no compatibility issue minute had been properly lodged.
• The Appellant’s defence under section 28 of the Misuse of Drugs Act 1971 was properly before the jury, allowing him to present his belief that the substances were legal and that he had no reason to suspect otherwise.
• The trial judge was correct to direct the jury that THC levels were irrelevant under domestic law, as the legislation did not specify a THC threshold.
• The Crown relied on R v Datson to support that knowledge of the illegality of importation was required, but not knowledge of the precise nature or THC content of the goods.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Margiotta [2023] EWCA Crim 759	EU law interpretation that importation and supply of cannabis with THC below 0.2% was not a criminal offence under Article 34 TFEU.	The court acknowledged the decision but noted the late and incomplete presentation of compatibility issues in the instant case, limiting its application. The court also observed the original case did not address Article 36 exceptions.
R v Datson [2022] EWCA Crim 1248	Elements of offence under Customs and Excise Management Act 1979 section 170(2) require proof of knowledge of prohibition and fraudulent evasion, but not knowledge of exact nature of goods.	The court applied this to affirm that the Appellant’s knowledge of the illegality of importation was relevant, but knowledge of THC content was not required.

Court's Reasoning and Analysis

The court began by acknowledging the EU law argument based on R v Margiotta that cannabis or derivatives with THC content below 0.2% should not be criminalised due to free market protections under Article 34 TFEU. However, the court emphasized that the Appellant failed to properly raise a compatibility issue minute in a timely manner, which was essential to invoke EU law protections and the related rights under Article 7 ECHR.

The court noted that the prosecution and defence agreed the substances were controlled drugs under domestic law, and that the Misuse of Drugs Act 1971 did not require proof of THC levels for criminal liability. The absence of evidence on THC levels rendered any argument about them irrelevant for the purposes of the charges.

The court explained that the trial judge correctly instructed the jury that THC levels were legally irrelevant and that the Appellant’s belief about the legality of the substances was the critical factor for his statutory defence under section 28(3) of the 1971 Act. The Appellant was permitted to present his understanding to the jury, which was properly instructed to acquit if reasonable doubt existed about his knowledge or suspicion that the substances were controlled drugs.

While the court expressed some sympathy for the arguments under Article 36 TFEU, which were not raised by the Crown or properly before the court, it concluded that, without a timely compatibility issue minute, the case had to be decided solely on domestic law. The court found no miscarriage of justice in the trial judge’s directions or the verdict.

Holding and Implications

The court REFUSED THE APPEAL.

The direct effect of this decision is to uphold the Appellant's convictions under the Misuse of Drugs Act 1971 and the Customs and Excise Management Act 1979, confirming that under domestic law the THC concentration level is irrelevant to the classification of controlled drugs for the offences charged. The ruling reinforces the necessity of timely procedural compliance when raising EU law compatibility issues and affirms the scope of statutory defences based on the accused’s knowledge or belief. No new legal precedent was established beyond affirming existing principles and procedural requirements.