Ben Douglas-Jones KC secures key victory in Patel v R Court of Appeal case

The Court of Appeal delivered a significant judgment in Patel v R, on Friday 5th September, with the successful respondent represented by Ben Douglas-Jones KC and Robin Shellard (5 Paper Buildings). The ruling dismisses an appeal against conviction for cannabis importation and supply, but its detailed reasoning highlights the intricate legal landscape at the intersection of domestic drug control and retained European Union law. The case provides crucial clarification on the legal status of cannabis products and the effect of Brexit on related legal arguments.

The Appeal: A Deep Dive into Legal Nuances

The appellant, Darshan Patel, had pleaded guilty to offences including fraudulent evasion of the prohibition on importation of controlled drugs and possession with intent to supply. Sentenced to concurrent terms of 14 months’ imprisonment, suspended for 24 months, Patel appealed his convictions, arguing they were unsafe despite his guilty pleas. The core of his appeal hinged on sophisticated arguments concerning the classification of cannabis under domestic and European law.

Central Legal Battlegrounds:

1. Controlled Drug Status vs. EU Free Movement: The primary contention revolved around whether the herbal material, despite its low THC content, constituted a “controlled drug” under the Misuse of Drugs Act 1971 (MDA 1971). This argument was deeply intertwined with the interpretation of retained EU law, specifically Articles 34 and 36 of the Treaty on the Functioning of the European Union (TFEU), which govern the free movement of goods. The appellant sought to rely on the decision in R v Margiotta and others [2023] EWCA Crim 759, which had considered the lawfulness of importing low-THC cannabis under these EU provisions.
2. Brexit’s Impact on Direct Effect: A critical element of the respondent’s argument, accepted by the Court, was that Articles 34 and 36 TFEU ceased to have direct effect in the UK after 31 December 2020. This temporal consideration was pivotal, affecting the applicability of EU-derived arguments to the appellant’s conduct, particularly for offences committed after this date.
3. The Margiotta and Bogusas Conundrum: The Court of Appeal meticulously examined the application of Margiotta, a case where the prosecution’s appeal against a stay of proceedings for similar offences had been dismissed. However, the Court in Patel distinguished Margiotta on its facts, noting that in Patel, there was no admissible evidence proving the imported material had a THC content below 0.2%, as there had been in Margiotta.

Significantly, the Court also highlighted the regrettable absence of the Irish High Court’s decision in Bogusas v Minister for Health and others [2022] IEHC 621 from the legal arguments presented in Margiotta. The Bogusas judgment provided strong support for the view that unauthorised trade in narcotic or psychotropic drugs does not fall within Article 34 TFEU, explicitly treating such activities as ‘res extra commercium’ (outside commerce). The Court implied that had Bogusas been considered, the outcome in Margiotta might have differed, further underscoring the complexity and evolving nature of this legal area.

4. Clarity of Domestic Law vs. Article 7 ECHR: The appellant also argued that the law regarding low-THC cannabis was insufficiently clear, thereby breaching his Article 7 European Convention on Human Rights right against punishment without law. The Court firmly rejected this, asserting that the MDA 1971 provides a clear definition of cannabis that does not depend on a specific THC level, and the appellant had received explicit warnings about the illegality of his actions.

The Court’s Conclusion

The Court of Appeal, comprising Lord Justice Holroyde, Mr Justice Choudhury, and Mr Justice Wall, unanimously dismissed the appeal. Their judgment clarified that:

• Articles 34 and 36 TFEU no longer have direct effect in England and Wales post-31 December 2020, limiting their utility for such appeals.
• The MDA 1971’s definition of cannabis remains the prevailing legal standard, and arguments regarding low THC content must be robustly evidenced.
• The “complexities” of EU law, while acknowledged, do not automatically render domestic law unclear for the purposes of Article 7 ECHR, especially where explicit warnings about illegal conduct have been given.

This judgment provides much-needed clarity for practitioners grappling with the legacy of EU law in criminal cases involving controlled substances, solidifying the domestic legal position on cannabis.