Pensioner not to be prosecuted for growing cannabis

Pensioner not to be prosecuted for growing cannabis

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Introduction

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…

 

The Law

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…

 

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

5 COMMENTS

  1. Thank you, Dan, for this admirably lucid and pertinent analysis.

    A while ago, when discussing “out of court disposals”, you had some commentary by an oddly defensive researcher by the rather suitable name of Adam from Keele who seemed incapable of conceiving of the possibility that the police could confound their investigatory powers with those of the judiciary (despite overwhelming evidence of undue overlap and even of a conscious attempt on the part of certain chief constables to arrogate to themselves a whole swathe of matters that are simply not proper for determination by the police in a democracy, such as “assault PC” charges – to give but one elementary example – where the conflict of interest is so blatant that it jumps up and bites even first year AS law pupils, but seemed to escape Adam and certainly escapes others, some of whom are deliberately seeking to rein in the irksome independence of judges who will insist on testing the facts). Strangely, I did wonder at the time from the tone of his comments whether Adam was not an ex-policeman, so dogmatic and judgemental did he appear.

    Anyway, back to Sgt Canning! He should be sent back to the classroom to take a beginner course in “The basic principles of justice in easy steps” (and Adam could do a lot worse than accompany him – along with Mr Grayling, who seems to become ever more out of his depth with each passing pronouncement).

    A few years ago I might have written that it beggared belief that a police officer could make such an assertion of established guilt on such a truly tenuous basis. Sadly, it is no longer a surprise at all.

  2. If weed can grow quite happily in back gardens why do people grow them in lofts under artificial lights? Just asking for a friend.

  3. That is one magnificent specimen!

    If I was deliberately growing cannabis in my garden, I would have emailed a mere *description* of the weed that was just growing there spontaneously, to *somebody* (not necessarily the BBC), and then adduced that email in evidence, to establish my s28(2) defence.

  4. So pleased that I am not incarcerated in the local gaol.
    My weed has caused much hilarity in my family, when asked by one of my younger relatives how I knew what it was, I replied …somewhat tongue in cheek, that I grew up in the swinging sixties!!
    So that was my moment of fame.

  5. How lovely to hear from the alleged miscreant herself!

    You are very gracious.

    I might have been rather less forgiving.

    Sgt Canning presumed to baldly announce to the world that you had committed an offence – properly a decision for a jury, a bench of magistrates, or a DJ(MC).

    Were he himself to be accused of misconduct, he would expect – and be entitled – to receive a fair hearing, and have the right to defend himself and his
    actions.

    I do in fact sincerely hope 1) that the Devon Constabulary apologised for defaming you (and maybe even paid you damages) & 2) that Sgt Canning was canned (sorry) or at the very least given a good dressing down for bringing the force not only into disrepute but ridicule too (after due process of course!).

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