Case No: 2012/021639
Neutral Citation Number: [2013] EWCA Crim 1150
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MAIDSTONE CROWN COURT
HH Judge Gold QC
T2011/7020
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 05/07/2013
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE OPENSHAW
and
MR JUSTICE GRIFFITH WILLIAMS
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Between :

	Omar Sadique	Appellant	
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	R	Respondent	

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Mr Michael Mansfield QC and Mr G P King for the Appellant
Mr A Walker for the Crown

Hearing dates : 11th June 2013
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Judgment
The Lord Chief Justice of England and Wales: 
1.	On 21 February 2012 in the Crown Court at Maidstone before His Honour Judge Gold QC and a jury Omar Sadique was convicted of assisting in the supply of controlled drugs of class A and class B contrary to s.46 of the Serious Crime Act 2007 (the 2007 Act).  He was sentenced to 8 years imprisonment.  Appropriate forfeiture orders were made.  
2.	The case against the appellant was that his national distribution business was used to supply cutting agents like benzocaine and lignocaine to drug dealers and to distributors of cutting agents. These were misused for the purposes of criminal drug supply. Of itself possession of these chemicals was not unlawful, and they could be lawfully sold.  The appellant’s defence was that he ran a legitimate business dealing in chemicals which he was perfectly entitled to supply, and he had no idea that they were being sold or supplied for misuse as cutting agents in the drugs trade.  However, no business records, client lists or delivery records were ever discovered or produced.  It has not been suggested that the verdict of the jury, as it applied to the facts of the case, is open to criticism.  The issue in the appeal against conviction is directed to the ambit of s.46 of the 2007 Act.
3.	Before considering the indictment on which the appellant was eventually convicted, we must begin by noting that in the first indictment, dated 4 May 2011, he was indicted with a number of counts of supplying class A drugs in the form of cocaine and a further count of supplying class B drugs in the form of amphetamine.  This indictment included in count 5:
“Statement of Offence
Encouraging or assisting offences of class A or class B drug supply believing one or more will be committed, contrary to s.46 of the Serious Crime Act 2007.
Particulars of Offence
Omar Sadique … between the 1st day of January 2009 and 6th day of July 2010 together with other persons unknown did an act, namely the supplying of chemicals and pharmaceutical agents, which act was capable of assisting the commission of one or more offences of supplying class A controlled drugs, namely methylamphetamine, and/or supplying of class B controlled drugs, namely amphetamine, and they believed that one or more of those offences would be committed and that their act would assist in the commission of one or more of those offences.”
In these particulars of offence the drugs for criminal supply were identified, but the chemical and pharmaceutical agents were not.
4.	The indictment was amended in July 2011.  Count 1, replacing former count 5 alleged
“Statement of Offence
Assisting in the supply of class A or class B controlled drugs, contrary to s.46 of the Serious Crime Act 2007.
Particulars of Offence
Omar Sadique and … between the 1st day of January 2009 and the 8th day of June 2010, did an act, namely the supply of benzocaine, lignocaine, hydrochloric acid, sulphuric acid and other chemicals and pharmaceuticals as cutting agents, which was capable of assisting one or more offences of supplying/being concerned in the supply of class A or class B controlled drugs, believing that one or more of those offences would be committed and that their act would assist in the commission of one or more of the said offences.”
This count identified the cutting agents, and the crimes which were encouraged or assisted, but not the particular drugs which were produced by use of the cutting agents.  This second indictment included a number of further counts, which need no attention.  
5.	During the course of a preparatory hearing for trial it was submitted on behalf of the appellant, and his co-defendants, that s.46 of the 2007 Act was incompatible with Article 7 of the European Convention of Human Rights. It was too vague and uncertain, and accordingly the count should be stayed as an abuse of process.  After the judge rejected the argument that it was “not possible” to arrive at a workable and intelligible interpretation of s.46, this court upheld his ruling.  S.46 was neither vague or uncertain.  It properly complied both with Article 7 of the ECHR, and was consistent with domestic jurisprudence summarised in R v Rimmington [2006] 1 AC 459.  The court also rejected a submission that the count was bad for duplicity, observing that in the light of the primary legislation (to which we shall come shortly) the argument was “hopeless”.   The court then went on to analyse what were described as the ingredients of a s.46 offence, and the occasions when the offence should be charged, and if so, the terms of the relevant count.  (See R v Sadique and another [2011] EWCA 2872.)  It is perhaps worth emphasising that this analysis was not necessary for the decision, and that the issues being addressed were procedural rather than substantive.
6.	In order to understand the observations of the court, we must first turn to the relevant statutory provisions.
7.	S.44 provides:
“Intentionally encouraging or assisting an offence
(1)	a person commits an offence if-
(a) he does an act capable of encouraging or assisting the commission of an offence; and
(b) he intends to encourage or insist its commission.
(2) but he is not to be taken to have intended to encourage or assist the commission of an offence merely because such encouragement or assistance was a foreseeable consequence of his act.”
8.	S.45 of the 2007 Act provides:
“Encouraging or assisting an offence believing it will be committed
A person commits an offence if
(a) He does an act capable of encouraging or assisting the commission of an offence; and
(b) He believes –
(i) that the offence will be committed; and
(ii) that his act will encourage or assist its commission”.
9.	Two distinct offences are created by these sections, both directed to encouraging or assisting the commission of an offence.  The legislation then creates a third distinct offence. 
10.	S.46 of the 2007 Act provides:
“Encouraging or assisting offences believing one or more will be committed
(1) a person commits an offence if –
	(a) he does an act capable of encouraging or assisting the 	commission of one or more of a number of offences; and
(b) he believes –
(i) that one or more of those offences will be committed (but has no belief as to which); and
(ii) that his act will encourage or assist the commission of one or more of them.
    (2) it is immaterial for the purposes of sub-section (1)(b)(ii)      	whether the person has any belief as to which offence will be 	encouraged or assisted.
    (3) if a person is charged with an offence under sub-section 	1(…)
(a) the indictment must specify the offences alleged to be the “number of offences” mentioned in paragraph (a) of that sub-section; but
(b) nothing in paragraph (a) requires all the offences potentially comprised in that number to be specified.
(4) in relation to an offence under this section, reference in this Part to the offences specified in the indictment is to the offences specified by virtue of sub-section (3)(a).”
Self evidently this third distinct offence is directed against lending encouragement or assistance to the commission of one or more offences.
11.	S.47(1) adds an important ingredient to s.46 by providing:
“If it is alleged under s.46(1)(b) that a person (D) believed that one or more of a number of offences would be committed and that his act would encourage or assist the commission of one or more of them, it is sufficient to prove that –
	(a)  one or more of a number of acts would be done which 	would amount to the commission of one or more of those 	offences; and
	(b) his act would encourage or assist the doing of one or 	more of those acts.”
This provision bears directly on the focus suggested by Mr Mansfield on the terms of s.46(1)(b)(i). “(but has no belief as to which)”.
12.	S.47(5) adds for consideration that:
“In proving for the purposes of this section whether an act is one which, if done, would amount to the commission of an offence –
	(a) …
	(b) if the offence is one requiring proof of the particular circumstances or consequences (or both), it must be proved that –
(i) D believed that, were the act to be done it would be done in those circumstances or with those consequences; or
(ii) D was reckless as to whether or not it would be done in those circumstances or with those consequences”.
13.	In accordance with s.49(2) D may also face multiple counts charged under s.44 or s.45, as appropriate, even if these would flow from a single act of encouragement or assistance.  
14.	We note s.57(4) of the 2006 Act which provides:
“For the purposes of this section, an offence is an alternative offence if –
	(a) it is an offence of which on a trial on indictment for the 	specified offence, an accused may be found guilty; or
	(b) …” and

15.	S.58 provides for the penalties on conviction.  S.58(1) provides:
“Penalty.
Sub-sections (2) and (3) apply if –
	(a) …
	(b) a person is convicted of an offence under s.46 by 	reference to only one offence (“the reference offence”)
(3) in any other case (that is other than murder) he is liable for any penalty for which he would be liable on conviction of the … reference offence.”
Importantly, S.58(4)-(7) deals with the problem of the defendant convicted under s.46 in the context of more than one offence, by providing that the maximum sentence available on conviction must be addressed by reference to the offence which has the longest term.
16.	In an article published in Archbold News, issue 9 November 2008, Professor John Spencer and Professor Graham Virgo presciently anticipated some of the problems to which this legislative structure would give rise.
“Having three new offences where only one would do creates complications not just in theory but in practice too, because it enabled defendants to argue that they have been charged with the wrong one: and so, in future, we can expect a body of case-law not only about what each of these offences means, but about what the relationship between them is”.
17.	It is hardly surprising that Professor Ormerod and Mr Fortson greeted the legislation with equal lack of enthusiasm.  In the Criminal Law Review for 2009 at p. 389 they addressed 
Serious Crime Act 2007 - Part 2 Offences by observing that it was 
“questionable whether all of these tortuously difficult offences in ss.44-46 are even necessary”.  
Referring specifically to the offence created by s.46 they observed that this is 
“the broadest, most complex and most controversial of the new offences.  It is introduced to deal with the problem encountered in secondary liability where D gives assistance and D is aware that P is likely to commit one of a number of offences, but is unsure which.  For example, D drives P to a public house, being unsure whether P is likely to commit robbery, murder, explosives offences or offences against the person”.  
The example was a direct reference to a situation which arose in DPP for Northern Ireland v Maxwell [1978] 1 WLR 1350 HL.
18.	We can now return to the observations made about s.46 in R v Sadique. After reciting the relevant legislative provisions, the court observed that s.46 “should only be used when the prosecution allege that D’s act is capable of encouraging or assisting more than one offence”, and continued that “… the indictment need only specify two offences and could specify any number greater than two”.  The court then explained s.46 in the context of a case in which it was alleged that the count in the indictment specified offence X, punishable by life imprisonment, Y, punishable by 14 years imprisonment, and Z, punishable by 10 years imprisonment.  In that context the court observed that:
“section 46 should only be used, and needs only to be used, when it may be that D, at the time of doing the act, believes that one or more of either offence X, or offence Y or offence Z will be committed, but has no belief as to which of one or ones of the three will be committed”.
In the case of a trial involving these issues, the court agreed with the prosecution that it “would be better practice to have a separate s.46 count for X, Y and Z, and indeed went on to say “that there should always be separate counts if D pleads not guilty” adding, however, that the failure to do so (that is to produce separate counts) “would not of itself affect the safety of the conviction”.  On this basis the observations of the court were directed not to issues of substantive law, but to process.  
19.	According to Professor Virgo, Encouraging or Assisting More Than One Offence (Archbold Review, March 13 2012) the effect of the judgment, which was addressing the issue of vagueness and uncertainty has, “if anything made the offence vague, uncertain and effectively redundant”.  The offence in s.46 was rendered “practically obsolete”. In issue 3 dated 12 April 2013 of Archbold News – “Enough is Enough” Professor Virgo returned to the impact of the decision which, he suggests:
“…drives a coach and horses through the s.46 offence, bears out my concerns about the drafting and comprehensibility of the legislation, which has made the task of the senior judiciary very difficult in making sense of the law …  The effect of their (the judges’) decision is to render that offence otiose.  Since each contemplated offence must now be charged as a separate count, the defendant can only be convicted if he or she believed that a specific offence would be committed; that is the same as the conditions for conviction under s.45.  It follows that a defendant who contemplates a number of offences being committed but does not believe any specific crime would be committed, cannot be guilty of assisting or encouraging an offence.  That is an unfortunate restriction on the ambit of liability and will cause problems in future …”.
20.	The problem, if we may say so, rightly identified by Professor Virgo arises, as it seems to us, from the starting point in the reasoning of the court, found at paragraph 49 of the judgment.  
“D cannot be convicted of count 1 (the other ingredients being satisfied) unless at the time of doing the act:
(a) Either 
(i) D believes that X will be committed; or
(ii) D believes that one or more of the offences specified in the indictment (X, Y and Z) will be committed but has no belief as to which; and
(b) D believes that his act will encourage or assist the commission of X; and
(c) D believes that X will be committed with the necessary fault for X.”
21.	We are concerned that in this analysis it appears that a reference to the offence created by s.45 of the Act has been included as an ingredient of the offence created by s.46. In this paragraph of the judgment (a)(i) “D believes that X will be committed;” repeats the precise language in s.45(b)(i) that D believes that the offence will be committed. S.45, of course, is directed to “an offence” or “the offence”.  However the entire thrust of s.46 is directed to the encouragement or assistance of offences in the belief that one or more of a number of offences will be committed.  As the offences created by ss, 44, 45 and 46 are distinct offences, we have concluded that the foundation for the analysis was flawed, and that we are not bound by obiter observations of the court directed to procedural matters relating to the indictment rather than the full ambit of the offence.  Indeed, if the purpose of the judgment was to render the offence in s.46 otiose or its effect was to drive “a coach and horses through the s.46 offence” this should and would have been addressed head on for what it would have been, that is, a decision which effectively dispensed with an offence newly created by statute.
22.	At the end of the judgment the court observed:  
“To avoid the problems which would arise if the indictment were not split into two counts, one for class A drugs and one for class B drugs, we hope that the indictment will be amended”.
Perhaps this observation underlines that the court was seeking to do no more than to indicate a practical approach to assist in the better management of the forthcoming trial rather than provide authoritative binding direction.
23.	The indictment was redrafted in accordance with these observations.  However when the matter returned to the Crown Court, Judge Gold was concerned that the new draft did not represent the best way of managing the trial.  He first wondered whether the better approach would be a single count, which would then be followed by an effective “special verdict”. Having considered this possibility with counsel, he accepted that this approach had been rejected by this court, and that he was required to be faithful to the decision.  However in view of the concerns he expressed, the prosecution amended the indictment again.  
24.	The Statement of Offence in count 1 now alleged “Assisting in the supply of controlled drugs class A and B” (our emphasis); The particulars of count 1, alleged:
“Omar Sadique … between the 1st day of January 2009 and 8th day of June 2010, supplied various chemicals to others, such supply being capable of assisting two or more offences of supplying/being concerned in the supply of controlled drugs of both class A and B, believing that such offences would be committed and that such supply would assist in the commission of one or more of those offences”.
Count 2 alleged “Assisting in the supply of controlled drugs class A”; count 3 alleged “Assisting in the supply of controlled drugs class A or B” (our emphasis) and count 4 alleged “Assisting in the supply of controlled drugs class B”.  The particulars of each offence were in identical terms save that the particulars in each count accurately reflected the Statement of Offence with which it was linked.  
25.	Judge Gold satisfied himself that the amendment, although involving an “expansion” in the number of counts, could cause no prejudice to the defendant, not least because it would only be possible for him to be convicted on one of the four counts, as the judge put it “depending on the view that the jury takes of the class of drugs that the defendant had in mind at the time the chemicals were supplied”.  He also rejected the suggestion that any defendant would suffer any prejudice because the specific chemicals were not named in the indictment.  None has been suggested.
26.	In due course, when summing up, the judge directed the jury that before they could convict the defendant of any of counts 1-4 they must be sure that
“1. D was involved with supplying chemicals to one or more other persons;
 2. Such supply was capable of assisting in the onward supply of class A or B drugs;
 3. D believed at the time of supply that the chemicals would be used in the onward supply of class A or B drugs; and
 4. D believed that the supply of chemicals would assist in the commission of that onward supply”.
With a minor and irrelevant change, the oral directions to the jury were to similar effect.  The appellant was convicted on count 1, that is by reference to class A and class B drugs.
27.	Mr Mansfield founded his submission on the observations made by Professor Virgo in 2012 that s.46 was at risk of becoming redundant.  Indeed Mr Mansfield suggested that its survival was limited to the cases where the defendant had no belief as to which of one or more of the offences (in the language of s.46) would be committed.  He underlined the words in sub-s.(1)(b)(i) “(but has no belief as to which)”.  He emphasised the importance of recognising as an essential ingredient of this offence that in accordance with sub-s.(1)(b)(i) the defendant must believe that one or more of the offences “will” be committed and that the defendant’s actions “will” encourage or assist in their commission.  This is not a question of possibilities.  The language of the paragraph is not “may” or “might”, but “will”.  
28.	The argument continued that the count on which the appellant was convicted was bad for duplicity.  Mr Mansfield suggested that in place of the four counts of an offence contrary to s.46 of the 2007 Act, the indictment should have contained two separate counts of offences under s.45 of the Act, one directed to class A drugs, and the second to class B drugs.  If necessary a very large number of separate s.45 specimen counts to cover each of the cutting agents as each was linked to the relevant class A or class B drug would be appropriate.  
29.	Mr Mansfield submitted that an indictment drafted in these ways would avoid confusion and convolution, and provided a sufficient level of specificity both for the purposes of the trial, and eventually the sentencing decision.  It would have been an accurate reflection of the Crown’s case that the appellant was assisting drug dealers in the supply of both class A and class B drugs.  Specific s.45 counts would have encouraged the particularisation of the class A or B drug which was being produced by the use of the relevant chemical, and with this material, focus could be directed to the question whether the appellant believed that there would be a supply of that drug following the provision by him of the chemical.
30.	As we have already explained, the 2007 Act created three distinct offences.  It is not open to the court to set one or other of them aside and the legislation must be interpreted to give effect to the creation by statute of the three offences.  It may well be that the common law offence of inciting someone else to commit an offence was less complex.  It may equally be that the purpose of the legislation could have been achieved in less tortuous fashion.  Nevertheless these three distinct offences were created by the 2007 Act, with none taking priority over the other two.  S.46 creates the offence of encouraging or assisting the commission of one or more offences.  Its specific ingredients and the subsequent legislative provisions underline that an indictment charging a s.46 offence of encouraging one or more offences is permissible. 
31.	This has the advantage of reflecting practical reality.  A defendant may very well believe that his conduct will assist in the commission of one or more of a variety of different offences by another individual without knowing or being able to identify the precise offence or offences which the person to whom he offers encouragement or assistance intends to commit, or will actually commit.  As Professor Virgo explains in his most recent article, the purpose of the s.46 was “to provide for the relatively common case where a defendant contemplates that one of a variety of offences might be committed as a result of his or her encouragement”.  We entirely agree.
32.	DPP v Maxwell [1978] 1 WLR 1350 provides a clear example of how the s.46 offence should operate.  Maxwell was a member of the Ulster Volunteer Force who agreed to drive his own car and lead a second car containing three or four other men to a remote public house.  Having guided them to the scene, he drove slowly passed the public house, and then returned home.  The car containing the gang of men stopped, one of the occupants got out, and ran towards the public house, where he threw a pipe bomb containing explosives into the hall way.  As it happened the attack failed.  He was convicted as an accomplice of doing an act with intent to cause an explosion by a bomb, and with possession of a bomb, both offences contrary to the Explosives Substances Act 1883.  On appeal to the House of Lords it was submitted that Maxwell could not properly be convicted of aiding and abetting the commission of these crimes because he did not know the form the attack would take, or of the presence of the bomb in the car containing the gang.
33.	The appeal was dismissed.  Maxwell could properly be convicted of aiding and abetting the commission of these offences provided he contemplated the commission of one of a limited number of crimes by the principals and intentionally lent his assistance in the commission of such crimes.  It was irrelevant that when he lent his assistance Maxwell did not know which of those particular crimes the principal intended to commit, or indeed the precise target or weapons which the gang would use.  In short, save that the broad purpose of the gang he led to the site was encompassed in the concept of terrorism, Maxwell did not know (or believe) which particular offence that gang was intent on perpetrating.
34.	In our judgment the ingredients of the s.46 offence, and the ancillary provisions, and s.58(4)-(7) in particular, underline that an indictment charging a s.46 offence by reference to one or more offences is permissible, and covers the precise situation for which the legislation provides.  Before the appellant in the present case could be convicted, the jury had to be satisfied that (a) he was involved in the supply of the relevant chemicals and (b) that, if misused criminally, the chemicals were capable of misuse by others to commit offences of supplying or being concerned in the supply of, or being in possession with intent to supply class A and/or class B drugs.  None of this would be criminal unless it was also proved (c) that at the time when the relevant chemicals were being supplied, the appellant believed that what he was doing would encourage or assist the commission of one or more of these drug related offences and (d) that he also believed that this was the purpose, or one of the purposes, for which the chemicals would be used by those to whom he supplied them.  If those ingredients were established, as the chemicals could be used for cutting agents for class A drugs or class B drugs, or both, it was not necessary for the Crown to prove that he had a specific belief about the particular drug related offence which those he was encouraging or assisting would or did commit.
35.	So far as the defendant in Maxwell’s position was concerned, s.46 remains apt to cover the encouragement or assistance he offered, not only when the explosive device was actually thrown (when he might equally have been convicted as an accomplice) but also if the plans were not brought to fruition, because of a sudden change of plan so that the device was hurled at a police officer rather than thrown into the public house, or even if the presence of a large number of police officers at the locality led the terrorist gang to drive away without any explosive being thrown at all.
36.	In our judgment count 1 of the indictment was appropriately charged and fell within the proper ambit of the s.46 offence created by the 2007 Act.  It was not bad for duplicity, nor defective for uncertainty.  It achieved the objective of every count in any indictment, that is, to give sufficient indication to the defendant of the criminal conduct alleged against him.
37.	We now turn to Mr Mansfield’s second ground of appeal, that the summing up was flawed.  He suggested that the judge’s directions meant that it was sufficient to justify a conviction if the jury believed that an offence arising from the supply of unlawful drugs might be committed by others. 
38.	In his directions the judge did not expressly refer in to the phrase in s.46(1)(b)(i), “but has no belief as to which”.  These words have to been seen in the context of  s.46(1)(b) that it is an essential ingredient of the offence that the defendant must believe that one or more offences would be committed.  The effect of the words so heavily relied on by Mr Mansfield underlines that the offence is directed to precisely the situation where, notwithstanding that the defendant is unable to identify which of one or more specific offences will be committed, he believes nevertheless that one or more offences will indeed be committed.  
39.	The context for the judge’s directions was that there was no dispute whatever that the appellant was involved in the supply of chemicals to others, and that what he supplied was capable of assisting in the manufacture of class A or class B drugs for sale.  The main issue at trial was whether at the time when he supplied the chemicals he believed that they would be used to assist in the commission of drug related offences, that is the manufacture of class A or class B drugs for onward supply.  In that context the jury was directed:
“If you are sure that D believed that any of the chemicals that they (his company) were involved in supplying were to be used to assist in the onward supply of class A or class B drugs then D has committed the offence”.
The jury was further directed that if satisfied that the ingredients of the offence were proved, that they should consider which of the four counts would properly reflect their findings about the nature of the drugs that the appellant believed that his activities would assist.  If they were sure that he was assisting in the supply of both class A and class B drugs, he would be guilty of count 1, and the remaining counts did not remain further consideration.  If he was acquitted of count 1, they would then move to count 2; if sure that he was assisting in the supply of class A drugs only, then counts 3 and 4 should be left.  If they were unsure in relation to count 2, they should move to count 3.  This required them to address the question whether the appellant believed that he was assisting in the supply of either class A or class B drugs, but if they had reservations about this count, they should then turn and consider count 4, a count limited to class B drugs alone.  In context, this represented sensible management designed to achieve a fair trial, and verdicts which correctly reflected the jury’s conclusions based on their assessment of the evidence.
40.	The appellant was properly convicted of this offence. The appeal against conviction will therefore be dismissed.
Sentence
41.	We were invited to consider sentence.  So far as the appellant is concerned, he was convicted in assisting in the supply of both class A and class B drugs.  He did so in the face of an earlier warning that the chemicals must not be misused for these purposes.  The business was prolific.  Chemicals were delivered nationwide for many months.  He played a significant part in the proliferation of drugs.
42.	Mr Mansfield asked us to bear in mind that the appellant’s business had been legitimate at the outset, and that he was a man of good character, from a hard working family.  We have reflected on these considerations, but we agree with the judge that this was a serious case of its kind.  The appellant used the front of his legitimate business to conceal his major involvement in the supply of drugs.  The case had proceeded as a trial.  The sentence was not excessive.  The application is refused.