A belief by a defendant that he had taken reasonable steps to prevent drugs being supplied did not afford a defence to a charge of permitting premises to be used for supplying class A controlled drugs, contrary to section 8(b) of the Misuse of Drugs Act 1971. The defendant’s belief that the steps he had taken were reasonable was irrelevant: it was for the jury to judge his conduct.

The Court of Appeal, Criminal Division, so held in a reserved judgment dismissing appeals by John Terrence Brock and Ruth Avril Wyner against their convictions on November 17, 1999, at Cambridge Crown Court, before Judge Howarth and a jury, of permitting premises to be used for supplying class A controlled drugs between February and May 1998, contrary to section 8(b) of the 1971 Act, for which they were sentenced respectively to four and five years imprisonment.

Their appeals against sentence were allowed and terms of 14 months imprisonment were substituted in each case.

Mr Michael Mansfield, QC and Mr Karim Khalil for the appellants; Mr William Clegg, QC and Mr John Caudle for the Crown.

LORD JUSTICE ROSE, giving the judgment of the court, said that from January 1995 the appellant, Wyner, was director and the appellant, Brock, the project manager of a daytime drop-in centre which provided shelter, food, clothing, washing facilities, advice and medical care for the disadvantaged, particularly the homeless.

An undercover police operation between February and May 1998 revealed open and obvious dealing in drugs on and from the premises.

In consequence, eight people were arrested and prosecuted for supplying heroin. The case for the prosecution against the appellants was that it would have been obvious to anyone working at the premises that such activity was taking place, the project’s policy in relation to drugs was not enforced by the appellants as it should have been and they were unwilling to take reasonable steps, readily available to them, to stop the dealing happening.

The appellants denied being unwilling to prevent drug dealing taking place and said they did not permit it.

The issue for the jury was whether the appellants knew that the supply of heroin was taking place and whether they were unwilling to prevent it by taking all reasonable steps readily available to them to prevent dealing in heroin on the premises. The jury convicted both appellants.

Mr Mansfield submitted that the judge failed to direct the jury about the ambit of the term “knowingly” and the question of reasonable steps.

What was in issue was whether the appellants knew the nature or level of the dealing which was going on. What could be done was related to what you knew.

But the judge had directed the jury that once you knew you had to take all reasonable and effective steps to prevent dealing.

Mr Mansfield accepted that the judge had correctly directed the jury, in relation to “knowingly permit”, that a defendant had to have “either actual knowledge that the premises are being used for supply of drugs or knowledge of circumstances such that the defendant can be said to shut his or her eyes to the obvious”.

But the judge said: “You decide what steps were available to the defendant looking at the whole of the evidence. You the jury set the standard to be expected of a person in the position of this defendant aware as he or she was that supplying was taking place.”

Mr Mansfield was critical of that last passage because in contained no reference to what the defendant believed was reasonably available.

Mr Clegg accepted that the judge did not direct the jury to consider what reasonable steps were believed by the defendants to be available.

But, he submitted, the test of permitting was objective without any subjective element. A manager of premises was not required to take unreasonable steps but, if he failed to take reasonable steps to prevent the supply of heroin which he knew was taking place, he was guilty of permitting.

Their Lordships did not accept Mr Mansfield’s submission that “reasonable” had a subjective element.

A belief by a defendant that he had taken reasonable steps did not afford any defence. What the prosecution had to prove to establish the offence of “permitting” under section 8(b) was: (i) knowledge, actual or by closing eyes to the obvious, that heroin dealing was taking place; and (ii) unwillingness to prevent it, which could be inferred from failure to take reasonable steps readily available to prevent it.

A defendant’s belief that the steps that he had taken were reasonable was irrelevant. It was not for a defendant to judge his own conduct. That was for the jury.

In the present case it was not open to the appellants to shelter behind the existence of the confidentiality policy. The existence of that policy, its rationale and constraints, were factors for the jury to consider, when deciding whether the defendants had taken reasonable steps.

The judge was therefore correct at the end of his summing-up to direct the jury that “the law does not permit you to write or operate a private policy so as to exempt you from the law’s requirements”.

Nor was it a misdirection to say that writing or operating such a policy was evidence from which unwillingness to prevent the activity could be inferred.

The judge was also correct to direct the jury that, if they found a defendant did not take all reasonable steps within his or her power to prevent dealing, unwillingness and therefore permitting could be inferred.

But there was no direction anywhere in the summing-up that, in assessing what steps a defendant should reasonably have taken, regard had to be had to his or her level of knowledge of the dealing which was taking place. In their Lordships’ judgment there should have been such a direction.

The crucial question was whether, in the absence of such a direction, the convictions should be regarded as unsafe. In their Lordships’ judgment it was inconceivable that, if they had been given that further direction the jury’s verdicts would or could have been different and accordingly the appeals against conviction were dismissed.

The sentencing exercise in this case was particularly difficult. So far as was known, this was the first case in which persons running a refuge for the homeless had been convicted of permitting their premises to be used for the supply of drugs.

The offence had to be seen as serious for a number of reasons. First, class A drugs were involved; second, the supply was on many occasions and by several suppliers, although the appellants would not have known of every such supply; third, the appellants were both aware of police concern about drug dealing; fourth, refuges for the homeless were vital at a time when homelessness was a prevalent feature of society.

If such refuges became, as this refuge did, a focal point for the distribution of illegal drugs, local authorities, charitable foundations and others might well be reluctant or unwilling to provide the financial support without which such refuges were unlikely to exist. They had to be run in accordance with the law.

These appellants did not have the mitigation of a plea of guilty. On the other hand they did not stand to make any commercial or other gain from what happened.

Their conduct lacked the evil motive which was usually a feature of criminal behaviour: quite the contrary, they were caring for the unfortunate, doing a job which few would envy.

Both appellants were 49 years old and hitherto of impeccable character. They had dependent and loving families. They were spoken of in the highest terms by those who knew them.

The worry of these proceedings had now been hanging over them for two and a half years and they had spent approximately seven months in custody pending the hearing of this appeal.

In the light of those circumstances, each member of the court was satisfied that the level of sentence chosen by the judge was very significantly too high.

In their Lordships’ judgment, however, he was right to impose sentence of immediate imprisonment. The appropriate sentence would have been 18 months imprisonment, although a sentence longer than that might well be appropriate, if, in the future, others in the position of the appellants committed the same offence.

The case had to serve as a warning that no one, however well intentioned, could with impunity permit his premises to be used for the supply of class A drugs.

The appellants had served the equivalent of a 14-month sentence. In their Lordships’ judgment the public interest did not now require them appellant to be returned to custody for a further two months.

Accordingly, sentences of 14 months would be substituted in relation to each appellant.

Solicitors: Shelley & Co, Cambridge; Crown Prosecution Service, Cambridge.