• In the case of R v Sadique No. 2 [2013] EWCA Crim 1150; [2014] Crim L R 61, the court examined the mens rea of s.46 of the Serious Crime Act 2007 (encouraging or assisting crime) in considering D’s appeal against conviction
  • Whilst committing the offence, under s.46, D ought to have realised that he would have contributed to at least one or more offences, but without needing to understand what the precise offence would be

Facts of the Case

  • D operated a business for supply of chemicals and pharmaceutical agents nationally
  • Under the law, possessing chemicals was unlawful
  • D’s business had supplied drugs and D had been convicted of supplying class A and B controlled drugs as per s.46 of the Serious Crime Act 2007
  • D was sentenced to eight years’ imprisonment for supplying chemicals for misuse as cutting agents (e.g. benzocaine and lignocaine) in the trade of criminal drugs
  • D had previously been indicted on multiple counts on 4 May 2011 for supplying cocaine (Class A) and amphetamine (Class B), but in this case the chemical and pharmaceutical agents were not identified

Issues in R v Sadique No. 2 [2013] EWCA Crim 1150; [2014] Crim L R 61

  • As the offences were found under s.46 of the Serious Crime Act 2007 and not anywhere else in the statute, D appealed on the basis that indictment was duplicitous and uncertain, arguing that there existed flaws in the judge’s directions to the jury
  • In his appeal, D argued that he owned a legitimate business and that he was entitled to supply chemicals, without any awareness that they were sold as part of the drugs trade

Held by the Court of Appeal (Criminal Division)

  • Appeal dismissed – the Court of Appeal did not locate the existence of a per incuriam and believed the judge’s summary of the case for indictment was appropriate for encouraging one or more offences, as well as there was absence of duplicity as argued by D

Lord Judge (reading the judgement on behalf of the court)

The judges refused to acknowledge D’s insistence that he had a good character and the legitimacy of his business and gave effect to the seriousness of the offence

  • Lord Judge reported that the court considered DPP v Maxwell [1978] NI 42, [1978] 3 All ER 1140, [1978] 1 WLR 350’s treatment of the operation of the s.46 offence
  • The court also considered Professor John Spencer and Professor Graham Virgo’s article published in Archbold News (9 November 2008) on the problems with the relevant legislation
  • Although the judge in the lower instance court had not referred to the phrase “but has no belief as to which” s.46(1)(b)(i), his directions were designed to promote a fairer trial and a verdict to reflect the jury’s deliberations accordingly
  • “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.” [36]

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