Summary of Judgment

Factual and Procedural Background

This is the written judgment of Judge Holroyde explaining the reasons for the dismissal of an appeal by the Appellant against convictions arising from his importation and sale of cannabis-derived products. The Appellant pleaded guilty to three counts of fraudulent evasion of the prohibition on importation of controlled drugs (s170, Customs and Excise Management Act 1979) and one count of possession of cannabis with intent to supply (s5(3), Misuse of Drugs Act 1971). Each offence attracted concurrent sentences of 14 months' imprisonment suspended for 24 months. With the leave of the full court the Appellant appealed his convictions and the court announced on 1 July 2025 that the appeal would be dismissed; the present document gives the reasons.

The material factual background (as set out in the opinion) can be summarised as follows:

• On 6 August 2020 the Appellant completed an online form to the Police stating an intention to start a mail-order business supplying cannabidiol ("CBD") hemp and oil products said to contain either zero or a low content of Delta-9-Tetrahydrocannabinol ("THC"). He asserted that stock had "less than 0.2% THC" and invited advice on any products he could not stock. The Police did not reply initially and the Appellant commenced trading via a website.
• On 19 October 2020 a Customs officer intercepted a package sent from a foreign country to the Appellant's business; it contained about 1.3kg of herbal material which tested positive for THC.
• On 20 November 2020 an officer (Officer Hemns) responded to the Appellant's August email, explaining that cannabis and products containing THC are class B controlled drugs under the MDA 1971, and warning that leaves and flowers are controlled parts of the plant even if some products claim low THC content. Officer Hemns warned that sale of flowers and hash below a stated 0.2% THC would still be covered by the MDA 1971 and could lead to prosecution.
• Despite that warning, the Appellant continued to import and sell similar products; additional intercepted packages contained herbal material.
• The Appellant was arrested on 14 January 2021; items found at his home included about 70.22 grams of herbal substance, cash and CBD products. When interviewed he denied importing or supplying illegal drugs and said products were "UK compliant".
• The Appellant was indicted on six counts: count 1 related to the 19 October 2020 seizure (1.3kg) and alleged contravention of s3(1) MDA 1971 and s170 CEMA 1979; counts 2–4 charged similar importation offences (each in excess of 1kg) with testing showing THC levels below 1%; count 5 charged possession with intent to supply (THC not tested); count 6 charged possession of criminal property (cash).
• The Appellant was represented by solicitors and counsel (Attorney Normanton). He waived legal professional privilege in relation to the advice he had received and initially pleaded not guilty. On 22 November 2022 he indicated willingness to plead guilty to counts 2–5 on a particular basis and sought a Goodyear sentence indication. His stated basis included a belief that low-THC products (he referred to "1%") were legal, that post-warning research and the fact others were selling such products reinforced that belief, that he was left with only a suspicion as to illegality which he tried to ignore, and that the material contained less than 1% THC and had no psychoactive effect.
• The proposed basis was accepted by the prosecution; the judge indicated that if the Appellant pleaded guilty then the total sentence would not exceed two years' imprisonment suspended. The Appellant pleaded guilty to counts 2–5; the prosecution offered no evidence on count 1 and count 6 was ordered to lie on the file. The Appellant signed an endorsement confirming that his decision to plead guilty was taken on the basis of the sentence indication and of advice and his own free will. Sentencing took place on 23 February 2023.
• The Appellant appealed by leave of the full court. The appeal advanced four grounds (summarised below) and the Respondent opposed each ground.

Legal Issues Presented

1. Whether, having regard to R v Margiotta and other European law authorities, the herbal material imported by the Appellant could be treated as lawful agricultural/hemp product (in particular where THC content was assertedly low) so that it was not a "controlled drug" for the purposes of the MDA 1971 and therefore not unlawful to import.
2. Whether the Appellant's guilty pleas to counts 2–4 were equivocal or otherwise vitiated because of incorrect legal advice such that a defence of lack of knowledge would probably have succeeded (applying the framework in R v Tredget).
3. Whether the Appellant's guilty plea to count 5 was vitiated for similar reasons because a defence under s28 MDA 1971 (lack of knowledge / belief about the nature of the substance) was likely to succeed.
4. Whether criminalisation of the Appellant's conduct breached Article 7 ECHR (the prohibition of punishment without law) because the law on CBD / low-THC cannabis was insufficiently clear for citizens to regulate their behaviour.

Arguments of the Parties

Appellant's Arguments

• Reliance on the decision in R v Margiotta: the Appellant submitted that if materials were proved to have THC content at or below the EU 0.2% threshold the imported plant material could be treated as goods within the internal market (arts. 34 and 36 TFEU) and therefore not a controlled drug for the purpose of the MDA 1971; the prosecution had not proved the THC level to exceed 0.2% and so the Appellant had a right to import low-THC cannabis.
• The Appellant argued that his guilty pleas to the importation counts were equivocal and entered after incorrect legal advice; he maintained he continued to believe the conduct lawful and that he faced a realistic defence of lack of knowledge which was likely to succeed.
• The Appellant made a similar submission in relation to count 5, contending that any suspicion arising from Officer Hemns' email had been dispelled by his subsequent research and that a defence under s28 would have been available.
• On Article 7 ECHR, the Appellant argued the statutory and regulatory position on CBD/low-THC products was uncertain and that criminalisation therefore infringed the prohibition on punishment without law.

Respondent's Arguments

• The Respondent submitted that domestic controlled-drugs law (MDA 1971) remained intact and was not overridden by the TFEU; Margiotta should be confined to its facts or treated as per incuriam given that the Irish High Court decision in Bogusas (not cited in Margiotta) had not been considered.
• The Respondent relied on R v Boyesen as authority that possession does not require "usability" and that tangible, measurable plant material may amount to a controlled drug whatever its THC level; a de minimis or minimal-THC argument was not available.
• The Respondent accepted that Regulation (EU) No 1307/2013 linked hemp cultivation to a 0.2% THC limit and that CJEU case law gives a narrow scope to art. 36 justifications, but submitted that in this case there was no evidential basis to invoke art. 34/36 because the Appellant could not point to admissible evidence that any imported material had THC not exceeding 0.2% (the prosecution had only conceded THC <1%).
• The Respondent further submitted that arts. 34 and 36 ceased to have direct effect in domestic law after 31 December 2020 (because of the Prohibition on Quantitative Restrictions (EU Exit) Regulations 2020 and the continued effect of retained EU law), so the Appellant could not rely on Margiotta in respect of imports after that date.
• On the issue of the guilty pleas, the Respondent relied on the account of Attorney Normanton that he had advised the Appellant about lack-of-knowledge defences (including s28(3)) and that those defences were undermined by Officer Hemns' email; Attorney Normanton accepted he had not been aware of the later Margiotta argument and that his advice would probably have differed if he had been, but the Respondent submitted that the Appellant could not show the defences would probably have succeeded and so the threshold for vitiating pleas (per Tredget / Boal) was not met.
• On Article 7 the Respondent submitted that the law was clear: cannabis is defined by the MDA 1971 without reference to a specific THC percentage and Home Office guidance warns that products containing controlled cannabinoids are likely to be controlled.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's reasoning followed a structured approach based on the statutory framework, the authorities cited by the parties, and the evidential record (or lack of it) before the court.

1. Effect of EU law after exit: The court accepted the Respondent's submission that arts. 34 and 36 of the TFEU ceased to have direct effect in domestic law after 31 December 2020. That conclusion meant that EU-law arguments would be of limited application to importations after that date and were unlikely to be available in future UK criminal cases.
2. Distinguishing Margiotta on the facts: The Appellant relied principally on Margiotta. The court analysed Margiotta, the related CJEU authorities (Hammarsten, Josemans, BS, CA) and the Irish decision in Bogusas. Although the court regarded Bogusas as being strongly supportive of the view that unauthorised narcotics trade does not engage art. 34, it did not need to determine whether Margiotta was per incuriam. Crucially, however, Margiotta had turned on specific factual findings that the imported material contained THC ≤ 0.2%. In the present case there was no admissible evidence establishing a THC level ≤ 0.2% (the prosecution only accepted THC <1%) and, because of the Appellant's guilty pleas, no further evidence was adduced or sought. On that factual basis Margiotta could not assist the Appellant and had to be distinguished.
3. Evidence and the consequences of guilty pleas: The court emphasised that, because the Appellant pleaded guilty, no further testing or evidential exploration occurred and no application to adduce fresh evidence was made to the court. The lack of evidential proof of a ≤ 0.2% THC level was decisive in distinguishing the present case from Margiotta.
4. Assessment of advice and vitiation of pleas (Tredget/Boal): The court addressed the submission that the guilty pleas were equivocal or vitiated by incorrect legal advice. It accepted Attorney Normanton's account that he had advised the Appellant about possible defences (including lack of knowledge and s28(3) where relevant) but that those defences were undermined by Officer Hemns' clear written warning. Attorney Normanton was not criticised for not advancing the later Margiotta point (which had not been made). Applying the Tredget categories and the Boal standard, the court held that it was not satisfied that any overlooked defence would "probably" have succeeded such as to amount to a clear injustice. The Appellant had been advised, had chosen to avoid a contested trial and had entered unqualified guilty pleas after a sentence indication; those pleas were not equivocal.
5. Article 7 and legal certainty: The Appellant's Article 7 argument (that the law was too uncertain for criminalisation to be permissible) was rejected. The court observed that the MDA 1971 plainly defined "cannabis" in terms that did not depend on THC being present at a particular percentage; the Appellant accepted the material was cannabis and had been expressly warned. Rather than acting because the law was uncertain, the Appellant chose to continue trading in the face of the warning.
6. Conclusion of analysis: On the totality of the legal principles, the evidential record and the Appellant's own admissions and choices, the court concluded that none of the four grounds of appeal succeeded. The Appellant had not shown that the convictions were unsafe despite the guilty pleas and the appeal was dismissed.

Holding and Implications

Holding (core ruling): APPEAL DISMISSED.

Direct consequences:

• The Appellant's convictions for three offences of fraudulent evasion of the prohibition on importation (s170 CEMA 1979) and one offence of possession of cannabis with intent to supply (s5(3) MDA 1971) were upheld.
• The sentence previously imposed — concurrent terms of 14 months' imprisonment suspended for 24 months — remains in force.

Broader implications identified by the court (as recorded in the judgment):

• The court accepted that arts. 34 and 36 TFEU ceased to have direct effect in domestic law after 31 December 2020; accordingly EU-law arguments of the type relied upon in Margiotta are unlikely to be available in future UK criminal prosecutions for importation occurring after that date.
• The court observed that Margiotta was a decision of limited application tied to its own factual findings (notably proof of THC ≤ 0.2%) and that the Irish decision in Bogusas, had it been fully considered in Margiotta, might have resulted in a different outcome. The court did not make a final determination on whether Margiotta was per incuriam.
• On the law relating to guilty pleas, the judgment reaffirms the high threshold for vitiating a plea based on alleged defective advice: the defendant must show that a defence which would probably have succeeded was lost and that a clear injustice resulted (Tredget and Boal).

In short, the decision upholds the convictions and sentences in this specific case. The court's reasoning emphasises the importance of the evidential record (particularly proof of THC levels where EU-law arguments are pleaded) and confirms the narrow circumstances in which a guilty plea may later be set aside.