In Martin, the legal interpretation of the word ‘supply’ in the context of ‘being concerned in the supply of a controlled drug to another’ was significantly altered, changing the way that it had been understood for the previous 29 years. In Martin, Lord Thomas of Cwmgiedd CJ stated that ‘the ‘word “supply” is a broad term. It does not by any stretch of the imagination result in a confinement to the expressions “actual delivery” or “past supply”. It refers to the entire process of supply.’ The drugs seized in Martin had not been supplied to their intended recipient due to their interception by the Police. In Martin it was argued by the Appellants that the case of Hughes[1] was established authority that for there to have been a supply then it had to have taken place. The decision in Martin meant that this interpretation was erroneous. The decision in Martin received comment in the Criminal Law Review[2] and in Archbold[3]. In Al-Khalil[4] it was argued that Martin was wrongly decided. However, Gross LJ clearly declared that Martin was correctly decided and dismissed the appeals.

Background

It is a common occurrence for the Police to stop a car containing several suspects, one of whom when searched has a significant quantity of drugs on them and the remaining suspects claim to have no knowledge or involvement. It is then highly likely that the suspect who was in possession of the drugs will be charged with possession with intent to supply. What happens to the other suspects depends entirely on whether the Police analyse the material that is available to them. It is not uncommon for one of the other suspects in the vehicle to be the main player who is responsible for the drugs who has given the drugs to the other suspect to hold. The suspect found with the drugs will often say at sentencing ‘I was asked to carry the drugs, I would have passed them on to someone else as I am not a dealer.’ The case of Martin was just such a case. Due to a thorough investigation by Hampshire Constabulary, the carrier of the drugs D and the other two suspects in the car M & B were all duly convicted.

Facts in Martin

The facts in Martin were that a traffic officer parked on a bridge over the A3 saw a car leave the southbound lane of the A3, travel towards the bridge upon which he was positioned and then instead of turning off, it re-joined the A3 via the slip road south of the bridge. Sensing that the driver may have seen his Police car and therefore taken avoiding action, he decided to follow the car. He noticed that the vehicle appeared to be driving in an erratic manner. The car drove into a service station and the Police Officer followed it and decided to carry out a stop check on the vehicle. When the car stopped, the three occupants (M, D & B) got out of it immediately. The driver, M went straight up to the Police Officer. The rear passenger D walked towards the shop before being stopped by a second Police Officer on a motorcycle. The front passenger B appeared unsteady on his feet with eyes dilated but did not smell of alcohol. A drugs search of all three suspects and their car took place but no drugs were found. B then started to walk towards the A3. M started making a fuss. Meanwhile, D walked towards the Police motorcycle. As no drugs had been found, all three were allowed to leave. M filled the car with fuel, paid and then left. One of the Police Officers then noticed a small piece of cling film under the front bumper of his Police car that appeared to have an immeasurable trace of a green herbal substance. He disposed of this but thought that it might be useful to move his car forwards in order to see whether there was anything else underneath it. He then discovered a plastic bag that contained a brown powder which subsequently was found to contain 116 grams of heroin valued at around £11,600. The CCTV from the service station showed that D must have dropped the package of heroin near the Police motorcycle before kicking it under the car. As a result of this discovery, the Police with other units managed to stop the car a short distance away where it had taken a southbound turn off the A3 on to a side road.

Subsequent cell site analysis and ANPR evidence showed that the car driven by M had doubled back to go past the service station, no doubt to see whether they could retrieve the package. Prior to the stop, the car had been in Leyton High Road, Waltham Forest and on the M25 before travelling down the A3 where it was then seen by the Hampshire Police. The Defendants all lived in the Portsmouth area.

Telephone analysis showed that D was a drug user, and that B had somehow lost his SIM card between the original stop and his subsequent arrest. M’s telephone had a text message on 6 May 2013 that stated ‘My pal got big food up the rd basicly. If I got Enuff placed il have a go, ye get me.’ A drugs expert stated that the text message meant that ‘the sender of this text appears to be telling the recipient that their friend has got a large amount of class A controlled drugs…if they get enough ‘placed’ they will ‘have a go’ which I interpret to mean that if they have enough customers or orders then they will commence dealing.’

M, who had previous convictions for the supply of drugs, denied involvement. B made no comment. All three Defendants were charged with possession with intent to supply. D pleaded guilty. M and B submitted that there was no case to answer and applied for their cases to be dismissed. As a result, the Crown changed the charge to one of ‘Being concerned with D in the supply of a class A drug to another.’ M and B applied to have this charge dismissed, but their applications were refused. Their case proceeded to trial and both M and B submitted that there was no case to answer on the basis that there had not been a supply. They cited Hughes as authority that there had to have been an effective supply for the offence of being concerned in the supply to have been engaged.

The trial Judge, HHJ Miller QC, dismissed their submissions by saying that:

‘It seems to me that there must be scope for this offence [being concerned in the supply] to cover the factual situation here. To direct the Jury to find the defendants not guilty on the basis that being in the middle of supplying is not being ‘concerned in supplying’ seems to me a nonsense, if participation and knowledge are satisfactorily proved.’

The essential allegation as set out by the Crown to the Jury in their closing speech was that:

‘the heroin was being supplied to others, it was being transported from wherever the three had got it from, probably London, to wherever it was going, probably Portsmouth. In other words, the supply chain was interrupted by the Police interception at… [a] Service Station…because of its quantity, it is clearly more than one person can use, it was going to be supplied to others…because of…[D]‘s guilty plea to possessing the drug with the intention of supplying it. That is good evidence that it was going to be supplied…all three men, by working as a team were protecting their valuable load of drugs.’

M and B both maintained that they had no knowledge and no participation in what D had been doing. In her summing up, HHJ Miller QC correctly broke down the offence of being concerned in the supply, in accordance with Hughes. M and B were duly convicted and appealed.

Legal framework

Section 4(3)(b) of the Misuse of Drugs Act 1971 states that:

‘Subject to section 28 of this Act, it is an offence for a person…(b) to be concerned in the supplying of such a drug to another in contravention of that subsection…’

The three subsections under section 4(3) expand the range of offences under section 4(1)(b). There is no mention in the Act of a supply being a successful and completed act or of it only being ‘an actual supply that has already taken place.’

The words ‘to be concerned in’ were considered in Hughes. The facts of that case are important as they set the background for the judgement in Martin and subsequently in Al-Khalil. In Hughes, H was accused of being concerned in the supply of a controlled drug in that he was meant to have paid a co-defendant T to acquire a drug from a chemist and then been passed the drug after it was obtained. However, when H was searched, no drug was found on him. The appeal centred on the failure of the trial judge to adequately explain the law, that for H to be guilty, he had to have been concerned with the supply of the drug to him. In the context of the evidence in that case, H had to have been supplied the drug.

In giving judgement in Hughes, Goff L.J. gleaned from the case of Blake and O’Connor[5], a case involving being concerned in offering to supply a drug contrary to section 4(3)(c), the following principle:

‘So the difference between (b) and (c) is that in (b) there has to be an actual supply in which the accused was concerned, whereas under (c) it is enough that there was an offer to supply in which the accused was concerned.’

It was these words ‘has to be an actual supply’ which established the apparent legal authority that actual supply meant a completed supply, and that without an actual supply, the offence of being concerned could not be established. It was this point that was taken on appeal in Martin and again in Al-Khalil.

Goff LJ went on to state in Hughes that:

‘it appears to us that, for an offence to have been committed contrary to subsection (b) or subsection (c), as the case may be, the prosecution has to prove (1) the supply of a drug to another, or as the case may be the making of an offer to supply a drug to another, in contravention of section 4(1) of the Act; (2) participation by the defendant in an enterprise involving such supply or, as the case may be, such offer to supply; and (3) knowledge by the defendant of the nature of the enterprise, i.e. that it involved supply of a drug or, as the case may be, offering to supply a drug.’

These words were to be subsequently read from the perspective that there had to have been an actual supply.

Of note in the judgement in Hughes, and overlooked by those who adopted the interpretation of ‘actual supply,’ was that Goff LJ emphasised the words of Everleigh LJ who gave judgement in the case of Blake and O’Connor[6], a case concerning section 4(3)(c) (being concerned in the making to another of an offer to supply):

‘that subsection (c) did not require a specific and close involvement on the making of the particular offer; indeed, it seems clear that the subsection has been particularly widely drawn to involve people who might be at some distance from the actual making of the offer.’

This interpretation of the words ‘being concerned in’ in relation to section 4(3)(c) could equally apply to section 4(3)(b), to involve people who might be at some distance from the actual supplying. It is hard to understand how it would have been Parliament’s intention to seek to criminalise those who operated at a distance in organising the supply of controlled drugs, only if they were successful in actually supplying those drugs, and not if they were unsuccessful due to Police intervention.

In Akinsete,[7] the Court of Appeal dismissed the appeals against conviction of two Appellants who had been convicted of being concerned in the supply of Class A drugs. Again, the factual background of Akinsete is important as there was no direct evidence that either man had supplied Class A drugs and there were no drugs or dealing paraphernalia found to suggest a future intention to supply class A drugs. Instead, there were telephones that contained text messages that suggested previous drug dealing by whoever the telephones had belonged to and a quantity of cash secreted in their car. In dismissing their appeals the Court of Appeal stated that:

‘the case of R v Blake and O’Connor (1979) 68 Cr App R 1 is important in the present context, because, although it related to an offence under section 4(3)(c), it was dealing with the question of the proper construction of the words “concerned in” in those two paragraphs. The court concluded in Blake and O’Connor that section 4(3)(c) did not require a specific and close involvement in the making of the particular offer; the subsection had been particularly widely drawn to involve people who might be at or some distance from the actual making of the offer; Blake had been rightly convicted on the evidence even if he was not aware of the particular offer of supply which was made in pursuance of the enterprise with which he was involved.’

In Akinsete, the Court of Appeal repeated the analysis of section 4(3)(b) and (c) as set out in Hughes, but then went on to say:

‘The words “concerned in” relate to the participation of the particular defendant in the enterprise. It is not necessary in respect of an offence that is charged under section 4(3)(b) for the prosecution to prove that the defendant himself physically supplied the controlled drug to another. His participation in the enterprise could take other forms. He could set up a meeting, be a middle man, provide the finance, or arrange the contacts and so forth.’

The Court was giving examples of how wide this section can be drawn to encompass the activities of those who are involved in the supply of drugs. Clearly, someone who sets up a future drug deal but does not attend it is concerned in the supply of drugs, just as much as the person who attends with the drugs. There was no suggestion that the activities had to result in an actual (completed) supply for the offence of being concerned in the supply to have been committed.

In their third ground of appeal in Akinsete, the Appellants had argued that:

‘the judge erred in giving his directions to the jury on the law by directing that an actual supply of drugs could be inferred from circumstantial evidence, when he should have directed the jury that there must be more than “mere inference”.’

The Court of Appeal rejected this argument and stated that:

‘there is no rule of law that there has to be direct evidence of a supply of drugs in a case brought under section 4(3)(b). The leading case of R v Hughes is not authority for such a proposition and the court were shown none that is. The prosecution can rely on circumstantial evidence.’

The Appellants in Martin cited the case of McGee[8] where it was held by Elias J. that:

‘it is necessary for the supply actually to take place on the premises.‘

McGee was an appeal concerning an offence under section 8 of the Misuse of Drugs Act 1971 which creates an offence for the occupier or manager of a property who knowingly permits drug production and drug dealing on their premises. Evidence of drug supply taking place elsewhere would not form part of that offence and the supplying had to have taken place on the premises. The Appellants argued that this was an example of where the word ‘supply’ meant an actual completed supply. The Crown responded that McGee was not an authority for narrowly construing the word supply in all other contexts as only meaning ‘a successfully completed act.’ Instead, it was only authority for saying that evidence of a successfully completed act of supplying drugs is essential to found a case contrary to section 8(b). The Court took the view that McGee:

‘…added nothing to the clear words of the statute.’

In Martin, the Crown submitted on appeal, that the word ‘supply’ in an offence under section 4(1) of the Misuse of Drugs Act 1971 can be interpreted widely by virtue of section 37(1) which states that ‘“supplying” includes distributing. That does not therefore restrict the meaning of the word supply. The Oxford Paperback Dictionary published in 1979 states that:

‘supply v. (supplied, supplying) 1. To give or provide with (something needed or useful), to make available for use. 2. To make up for, to satisfy, supply a need. supply n. 1. providing of what is needed. 2. a stock or store, an amount of something provided or available, the water-supply; an inexhaustible supply of fish.‘

The same dictionary states

‘distribute v. 1. to divide and give a share to each of a number, to deal out. 2. to spread or scatter, to place at different points, distributed his forces. distribution n.’

The Crown submitted that the word supply can be used in the past tense (a supply that has happened), the present tense (a supply that is happening) and in the future tense (a supply that will happen). In the context of the facts in Martin, by collecting a drug from person A at location 1 and taking it to person B at location 2, there is ‘supplying’ of person B with that drug which is consistent with all 3 tenses and uses of the word supply. The process of supplying person B starts with the collecting of the drugs from person A and continues until the drug reaches person B. At any given moment before the Police intercepted them, the Appellants were playing their part in a supply chain.

The Crown submitted that ‘supply’ can be a process and if it is interrupted then it does not annul that process. For example, the milkman who delivers pre-ordered milk to a house is ‘concerned in the supply’ of milk. If he drops a pint and it breaks on the path to the house and the customer does not get their pint, he was, up until the breakage, still concerned in the supply of milk. From the moment he takes possession of that milk at the dairy until the moment he delivers it or is unluckily interrupted, he is concerned in the supply of milk. Indeed, the person who takes the order over the telephone that results in the milkman trying to deliver the milk, regardless of whether it is actually delivered, is concerned in the supply of milk.

In giving his judgement in Martin, Lord Thomas CJ stated:

‘Was there, in this case, evidence of supply to another? Clearly there was evidence. First of all, there was the text message on 6^th May 2013 which discussed supply. Secondly, there was evidence of the journey to London to collect drugs. Thirdly, it was apparent from the quantity of the heroin (worth £11,600) that it was not for the use of one of the occupants of the car; it was for the use of others. ‘Did that, therefore, constitute supply to another? The word “supply” is a broad term. It does not by any stretch of the imagination result in a confinement to the expressions “actual delivery” or “past supply”. It refers to the entire process of supply. In the present case there was clear evidence that the drugs were en route from London to Portsmouth. They were being transported so that they could be delivered to others in the Portsmouth area. It seems to us that that falls plainly within the word “supply”. The case resolves itself with no more difficulty than that.’

Facts in Abi-Khalil:

The prosecution case was that C, acting as a middleman, had arranged for P and H to supply a kilogram of cocaine to A-K. Their activities were all observed by undercover Police Officers. All four were arrested before the drugs were supplied to A-K. A-K and P were both convicted of being concerned in the supply of controlled drugs to another. They appealed on 2 grounds, the first being that the case focussed on supply to A-K and not as indicted ‘to another’ as they were only concerned in supplying to A-K who was named on the indictment and ‘another’ had to be someone else. The second ground was that there was no supply as A-K not been supplied with the drugs. They submitted that Martin had been wrongly decided and was in conflict with previous authority.

On the first ground, the Crown responded that ‘to another’ reflected the fact that there was evidence that A-K was a street dealer and therefore would be involved in the supply of the cocaine to another. On the second ground, the Crown submitted that Martin was correctly decided.

Decision in Abi-Khalil:

Gross LJ giving judgement stated that:

‘It is helpful to say something as to the legal framework. As it seems to us, the following propositions apply:

(i) First, and as crisply summarised in Archbold at paragraph 27‑39:

“The person whom the defendant is alleged to have supplied, or been concerned in the supply of, may be a defendant charged in another count of the indictment, but may not be a co‑defendant in the same count … Adepoju [1988] Crim LR 378, Connelly, 156 JP 406, Reeves [2001] EWCA Crim 91.”

For the avoidance of doubt, we add that nothing said in R v Martin & Brimecome [2014] EWCA Crim 1940; [2015] 1 Cr App R 11 was intended to or did cast any doubt on this line of authority.

(ii) Secondly, as emphasised in Martin & Brimecome, the word “supply” has a broad meaning. At [16], Lord Thomas CJ said this:

“The word ‘supply’ is a broad term. It does not by any stretch of the imagination result in a confinement to the expressions ‘actual delivery’ or ‘past supply’. It refers to the entire process of supply…”

If fortification for this view is needed it may be noted that section 37 of the 1971 Act defines “supplying” as including “distributing” (see Archbold at paragraph 27‑127). The definition is therefore consistent with a broad construction focusing on the “entire process of supply”.

Further, and in addition to the arguments addressed to us, we have also considered the helpful commentary by Rudi Fortson QC at [2015] Crim LR 83, where some doubts are expressed as to the view taken by the court in Martin & Brimecome. We do not, with respect, share those doubts. There are obvious considerations of public policy supporting a broad construction of the word “supplying” in section 4(3)(b) of the Act with the additional attraction that, as the commentary observes, the law in both England and Scotland would then appear to be in alignment.

(iii) Thirdly, we are not dissuaded from this conclusion by anything said in R v Hughes (1985) 81 Cr App R 344. The issue in Hughes involved the words “concerned in” and the fact that the judge in that case had failed to direct the jury adequately or at all as to their true meaning. In Hughes there had been an “actual supply” and this court’s focus was on the other ingredients of the offence.

For our part, we cannot improve upon and respectively adopt the analysis of Lord Thomas CJ as to the observation of Robert Goff LJ (as he then was) in Hughes, set out at [11] of Martin & Brimecome, which reads as follows:

“11. The section was for these purposes authoritatively considered by a Court of Appeal presided over by Robert Goff LJ (as he then was) in R v Hughes (Robert) (1985) 81 Cr App R 344. It is not necessary to set out the facts. Suffice it to say that the Recorder had failed to explain the ingredients of the offence to the jury, and particularly the meaning of ‘concerned in’. In the judgment of the court given by Robert Goff LJ, he drew attention to the fact that there were three principal offences contained within subsection (3): under subsection (3)(a) the offence of supply or offering to supply to another; subsection (3)(b) to be concerned in the supply to another; and subsection (3)(c) to be concerned in the making to another of an offer to supply. In relation to the difference between (b) and (c) he said (at page 347):

‘So the difference between (b) and (c) is that in (b) there has to be an actual supply in which the accused was concerned, whereas under (c) it is enough that there was an offer to supply in which the accused was concerned.’

He referred to R v Blake and O’Connor (1979) 68 Cr App R 1. After setting out the issue in that case, and drawing the important distinction between ‘offer to supply’ and ‘supply’, so that no one else would fall into the error of failing to innumerate the matters that the Crown had to prove, he set out (at page 348) in straightforward terms the three elements that the prosecution had to prove, as follows:

‘ … for an offence to be shown to have been committed by a defendant contrary to subsection (b) or subsection (c), as the case may be, the prosecution has to prove (1) the supply of a drug to another, or as the case may be the making of an offer to supply a drug to another, in contravention of section 4(1) of the Act; (2) participation by the defendant in an enterprise involving such supply, or, as the case may be, such offer to supply; and (3) knowledge by the defendant of the nature of the enterprise, i.e. that it involved supply of a drug or, as the case may be, offering to supply a drug.’

It is particularly important to notice that the words of the statute were used in that quotation, and that the word ‘actual’ supply does not appear. So that no one else would fall into error, he set out the three ingredients.”

With respect to the observations in Archbold at paragraph 27‑41, we do not think that Martin & Brimecome “misrepresents” what was decided in Hughes or that there is any conflict between those two decisions. As demonstrated in Martin & Brimecome, in the key passage in Hughes, Robert Goff LJ used the words of the statute ‑ where the wording “actual supply” does not appear. As we do not see a conflict between Martin & Brimecome and Hughes it is unnecessary to decide what we could or should have done had there been such a conflict.

We were also referred by Mr Price to the decision of this court in R v Akinsete [2012] EWCA Crim 2377. The court there did use the wording “actual supply” but it was doing no more than repeating that which was contained in Hughes. The issue there was also not on the difference between any actual or completed delivery on the one hand and some potential delivery on the other but whether circumstantial evidence sufficed to demonstrate a supply. In our judgment, Akinsete takes the matter no further, as Lord Thomas CJ observed in Martin & Brimecome at [12].’

Conclusion:

Therefore, the case of Martin can be regarded as having buried the Hughes myth of there having to have been an actual (completed) supply before a suspect can be charged with being concerned in the supply of the drug to another. Instead, section 4(3)(b) can apply to anyone concerned in the drug supply chain, regardless of whether their role or participation was successful in any given transaction or operation.

If a car is stopped by the Police with three occupants, one of whom had a significant quantity of drugs and the other two occupants deny all knowledge, the holder of the drugs could be charged with possession with intent to supply to another or being concerned in the supply of a controlled drug to another, as he is part of a supply chain that runs between wholesaler and street dealer. The fellow occupants of that car, if it can be shown that they are lending assistance, by driving or providing security or being beneficiaries of the purchase of the drugs are at risk of being charged with the offence of being concerned in the supply of a controlled drug to another.

• [1] R v Hughes (1985) 81 Cr. App. R. 344 CA
• [2] [2015] Crim. L.R. 83
• [3] Archbold 17-41
• [4] R v Abi-Khalil (Tannous); R v Porja (Arben) [2017] EWCA Crim 17; [2017] Crim. L.R. 471
• [5] R v Blake and O’Connor (1979) 68 Cr. App. R. 1
• [6] R v Blake and O’Connor [1979] 68 Cr.App. R. 1
• [7] R v Akinsete and Prempeh [2012] EWCA Crim 2377
• [8] R v McGee [2012] EWCA Crim 613