When I was a kid I occasionally listened to Gardener’s Question Time – not out of choice I hasten to add. I never paid any particular attention to it, but I always thought that what it needed was someone to come along with their latest crop of skunk and distribute it round the Radio 4 audience.
Well, that hasn’t happened yet. Sadly. But we got close as we’re ever realistically likely to get when a “Patricia Hewitson, from Exmouth, contacted BBC Radio Devon’s gardening programme asking for help identifying ‘a weed’” that had been growing in her garden.
She emailed a couple of photos of the weed that turned out to be, er, weed. Fortunately for Ms Hewitson the police have decided to take no action against her with a Sgt Ryan Canning from the Devon & Cornwall Constabulary saying ““The lady has committed an offence although there are mitigating circumstances so we would not look to take it further although we would take it away.”
So all’s well that ends well…
It is illegal (s6 Misuse of Drugs Act 1971) “ for a person to cultivate any plant of the genus Cannabis” unless they are authorised by the Home Secretary – there are provisions for people engaged in research and the like to be permitted to grow cannabis if licensed.
Whilst it is absolutely right that someone in the position of Ms Hewitson should not be prosecuted for what was clearly an accident, we would disagree with Sgt Canning that she has necessarily ‘committed an offence‘.
There is a specific defence of ‘lack of knowledge’ contained in s28(2) Misuse of Drugs Act 1971. This states “it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged“.
Further, s28(3) states :
(3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused—
(a) shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but
(b) shall be acquitted thereof—
(i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or
(ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies.
In this case it is clear that Ms Hewtison had no idea that what was growing was cannabis. In those circumstances, it seems to us that she clearly falls into the defence in s28 without further ado and, therefore, she hasn’t committed an offence.
But, either way, the police have acted very sensibly in not taking this case on…