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Transcript of Court Hearing for
the British Crown vs Mardle and Evans
by Mendip-Wordwave Partnership
Dec 2004
alt.drugs.mushrooms
The status of fresh, undried psilocybin-containing mushrooms in Britain has been in flux over the last several years. The following is a transcript from the court case in which a judge ruled that prosecution of a vendor under the current law would be an "abuse of process" because the laws are unclear. See Ananda Schouten's Overview and the Psilocybin Mushroom Law Vault for more information.


IN THE CROWN COURT Indictment No.: T20040193
AT GLOUCESTER
Crown Court Offices
Kimbrose Way Gloucester GL12DE
Tuesday 14th December 2004 Before
MISS RECORDER MISKIN
REGINA
-v-
DENNIS MARDLE & COLIN EVANS
MR PHILLIP WARREN appeared on behalf of the Prosecution MISS SUSAN
EVANS appeared on behalf of the Defendant
APPROVED JUDGMENT
Tape Transcript of Mendip-Wordwave Partnership (Official Shorthand
Writers to the Court)
5 Chinon Court, Lower Moor Way, Tiverton, Devon, EX16 6SS Tel:
01884259580 Fax: 01884250235



JUDGMENT
MISS RECORDER MISKIN: In this case the defendants are charged with
possessing a controlled drug of Class A with intent to supply contrary
to Section 5 (3) of the Misuse of Drugs Act 1971 and the particulars
are that on 25th March 2004, they had in their possession a quantity
of psilocin with intent to supply. The facts are really very
straightforward and there is no dispute about them. The defendants run
a shop in Southgate Street, Gloucester called Collectors Choice. They
sell among other things fresh magic mushrooms, which are probably,
although I have no positive evidence about this, imported from
Holland. On Thursday 28th March of this year, DC Crawford and Police
Constable Eudon, went to the shop where the mushrooms were advertised
for sale in the window. Mr Mardle was asked by the Detective
Constable, if he had magic mushrooms for sale and he said he had. It
is said that the police officer explained to him the law, although I
am not sure what exactly he said about that, be that as it may he
seized four individual bags of mushrooms, and a punnet of mushrooms
which Mr Mardle pointed out to him and which were stored in a fridge.
Mr Mardle also produced to the police officer, six bags of fresh
mushrooms from a cool bag behind the counter, which were also taken
away.

Mr Mardle and indeed Mr Evans, have consistently taken the line that
he or they, were doing nothing wrong and in support of that Mr Mardle
immediately produced to the police officer a Home Office circular and
a report from The Guardian. This Home Office circular features
prominently in this case and therefore I am going to read it aloud.
The one I have is dated 10th May 2002 and it says this,
"Hallucinogenic mushrooms (Psilocin). Thank you for your letter of
29th April asking about the legal status of psilocybin mushrooms. The
psilocybe mushroom, or "magic mushroom" is not controlled under the
Misuse of Drugs Act 1971, but it contains, psilocin a hallucinogen,
and psilocybin, an ester of psilocin which are controlled as Class A
drugs. It is of course, ultimately a matter for the courts to
determine whether or not a substance is controlled under The Misuse of
Drugs Act 1971 and whether a misuse of drugs offence has been
committed, for example, the unlawful production, supply or possession
of a controlled drug. We can therefore only give an opinion as to what
the law permits. There have been a number of court cases concerning
the status of psilocybe mushrooms. The courts have held that a person
is not in the possession of a controlled drug, solely by reason of his
being in possession of a naturally occurring substance, the mushroom,
containing that drug. The growing of psilocybe mushrooms and the
gathering and possession of them, do not contravene The Misuse of
Drugs Act 1971. It is however, an offence under the 1971 Act to
possess a "preparation" or "product" of the controlled drugs, psilocin
or psilocybin. The courts have held that where the mushrooms have been
prepared, for example by drying or by making into a powder, so that
"they have ceased to be in their natural state and have been in some
way altered by the hand of man," they constitute a "preparation" or
"product" of the class A controlled drug psilocin. The courts have
also held in the case of Regina v Hodder, that psilocybe mushrooms
that have been frozen and packaged, constituted
a product containing the class A drug psilocin .


In relation to your specific queries our view is as follows: queries 1
and 2 - it is not illegal to grow and pick psilocybin mushrooms and
eat them fresh. Queries 3 and 4 - it is not illegal to sell or give
away a growing kit as the mushrooms themselves are not controlled.
Query 5 - it is not illegal to sell or give away a freshly picked
mushroom, provided that it has not been prepared in any way. In the
light of the earlier court cases, this is query 6, it would be for the
courts to determine whether chilling mushrooms in a fridge constituted
altering them in any way. Then it is suggested that the recipient of
this letter may wish to seek legal advice as to the interpretation by
the courts of the term "prepared".
.,

It is I should say, in passing and as summarized in this Home Office
circular, an offence to possess a preparation or product of the
controlled drug psilocin or psilocybin and as I say, where the
mushrooms have been prepared for example, by drying them or making
them into a powder, so they have ceased to be in their natural state,
and have been in some way altered by the hand of man, they then
constitute a preparational product. It was held in Regina v Hodder,
that psilocybin mushrooms that had been frozen and packaged constitute
a product as this Home Office circular accurately says. I am going to
come back to Regina v Hodder because of one or two things said there
by the judge. The issue in this case, in substance is really this,
whether the fresh mushrooms which are kept in a fridge or cool bag and
are packed in punnets or otherwise, are a preparation or product. Now,
what I am concerned with here, at this very moment, is an application
by the defence to strike out, or stay this indictment as an abuse of
the process of the court.

I shall therefore go on to consider the evidence that I have heard,
and again there is really no great dispute about it. I heard evidence
from the following four men; Mr Bovey, Mr Onn, Mr Batts and Mr Bashel.
Starting with Mr Bovey, he is the owner of the Top Hemp Company and
has a similar business in Holland. He sells magic mushrooms, his
business in Holland is wholesale, the mushrooms that he sells are
fresh, they are sent by carrier service. They go from Belgium to the
East Midlands by air, and by lorry from there to Totnes. He told me
the mushrooms are packaged in boxes and cooling elements are placed on
them. I should again say in passing, that these mushrooms
unsurprisingly are like any other mushrooms, they deteriorate very
quickly and therefore, to prevent that happening, it is necessary to
keep them cool and this at least, keeps them fresh and delays the
process of deterioration. But I should also say, and I accept that the
prosecution have not entirely accepted this, but I have seen expert
evidence from Professor Dickson on behalf of the defence, this process
of cooling the mushrooms, does not have any chemical effect at all on
the nature of the mushroom. It remains in the same state, just like I
might add, tomatoes or any other kind of vegetables. Mr Bovey of
course, had to have his mushrooms passed through the Customs. He said
that on a number of occasions, he has had his mushrooms opened by the
Customs before being delivered. The reason he knows that is, because
the Customs leave a note to tell him that they have opened the goods
to look for prohibited goods, but, significantly they have not been
seized. I remark also in passing that it will be remembered that these
mushrooms are packaged in boxes and cooling elements are placed on
them and therefore it is fair to suppose that when the Customs examine
them, that is the state that they are in.

In cross examination, Mr Bovey said, he had dealings with the Home
Office before he set his business up and he referred to the circular
which I have just read out. It is a common feature of all the
witnesses I have heard that they have gone to considerable lengths to
make sure that they are not acting unlawfully before setting up their
respective businesses concerning magic mushrooms. Mr Bovey said that
the mushrooms were packed in boxes, for air freight, again as I say
with the cooling element in the summer. He said they rotted if they
were not cooled and he said the purpose of the cooling element is to
keep them fresh, not to make them last longer. I would observe also in
passing that in my judgment keeping food fresh and making it last
longer are not the same thing. I observe that over the years, many
techniques have been developed to make foods last longer, some of them
such as irradiation, which is one of the most recent, are highly
controversial.

I come now to the evidence of Mr Onn. He runs a business called King
Bong. Among other things he sells fresh magic mushrooms. Initially he
tells me they came from Holland. They were then, he said, bought by an
intermediary from Holland who then sold them on to him. He also wrote
to the Home Office and received the letter that I have read out. Again
he was concerned to ensure that what he was doing was not illegal, and
he told me that the mushrooms are carried in refrigerated vans and are
refrigerated on his premises on arrival. He says they now arrive in
punnets, sealed at source, and also in trays. He says that 95% of what
he sells, that is to say the fresh mushrooms, are wholesale. He also
tells me that he pays V AT
on them.

I now come to Mr Batts, he runs a business called East West. He has
sold fresh magic mushrooms since March of this year. He also checked
the legality, he went on to the internet to get the Home Office letter
I have referred to. He told me that they arrive in boxes with ice
packs, or they arrive in an ice box. He then puts them in a cooler.
With the thought that they were a food, he wrote to the Customs and
Excise to see if he had to pay V AT on them. He was told by them that
if the mushrooms were fresh, he had to pay VAT, which he has done ever
since. He said he has on a number of occasions walked through Camden
Town in London and seen fresh magic mushrooms advertised in shop
windows with police, apparently unconcerned, walking by. He said he
was arrested on 2nd July for attempting to supply magic mushrooms, but
the charges were dropped. 1 think it is relevant at this point, that 1
refer to the correspondence with the Customs which is attached to his
statement. The first is a letter of 29th June of this year, and Mr
Batts wrote to HM Customs and Exercise, saying this "1 would be
grateful if you could inform me of the V AT liability for magic
mushrooms, as it currently stands. We were charged 17.5% VAT from our
supplier and wish to know whether this is correct and whether we
should be charging this rate to our customers?". The Customs then
wrote back on 8th July, and, in effect, they ask for more information
before they can come to a decision to which he replies by saying
"thank you for your reply to my letter regarding the V AT liability of
magic mushrooms. The mushrooms in question are not dried they are
fresh in their, as picked state. Regarding our suppliers, details are
as follows, the Psychi Deli LOP, 21a Mauri Road, London N16 7BP. I
look forward to hearing from you soon." The Customs and Excise wrote
back this letter, "Thank you for your reply to my request for further
information regarding the correct V A T liability of psilocin cubensis
or magic mushrooms. I have consulted with a colleague who dealt with
an enquiry of a similar nature from your supplier, the Psychi Deli. At
the time a ruling from Customs and Excise Police Group was obtained.
Since I see no reason to think otherwise, I must conclude the ruling
given to the Psychi Deli applies also to you. That ruling was that the
supply of this product, magic mushrooms, is taxable, at 17.5% standard
rate as it does not qualify as a zero rated food stuff.


The Policy Group supplied the following explanation behind this
ruling, first the mushrooms are not eaten for their nutritive value,
they are solely eaten for the stimulant effect. Secondly, they are not
permitted for sale to under 18' s, something not customary of an
accepted food product other than alcohol. Third, there is a maximum
dosage recommended, again indicative of a chemical substance not a
food. Next it is evident from various magic mushroom websites that you
do not use it based on the amount required in a recipe you use amounts
based on what sort of trip you want. In these recipes the food stuffs
are used as a vehicle for consuming the drug as opposed to using it as
an essential ingredient. Accordingly the amount recommended to be used
in the recipes dictates how much you trip .as opposed to any culinary
reason. Next we consider that the answer to the question posed in
numerous tribunals, what would the average person or well informed V
AT payer knowing what it is, and how it is used consider it to be, is
that it is not a food stuff, but a drug with a psychoactive effect.
Food is, to take one of many typical dictionary definitions, "a
substance taken to maintain life and growth." This surely does not
apply to magic mushrooms, although dictionary definitions are not
conclusive when defining food for the purpose of the V AT Act, we must
consider the intention of the wording of the Act and food stuff does
not include magic mushrooms. I realise this is not the answer you may
have anticipated however, should you wish to discuss this further or
appeal against this decision please feel free to contact us again."
And they say finally, "I must emphasise that the advice given is based
on the information you supplied, if the nature of the transaction
changes in technical detail, or the relevant details provided were
incomplete or incorrect we will not be bound by this ruling" and it is
signed by a Mr Neil Crowther.


I now come to the witness Mr Mike Bashel. He runs a company called
Cactus Trading Wholesale, selling fresh magic mushrooms. He tells me
this is three quarters, at least, of his business. He says they arrive
in ordinary vans, they are picked on one day and received the next. He
says that he charges V AT on them and repays it to the Customs. He
says he took legal advice and he understood the position to be that
frozen mushrooms are unlawful, but fresh are alright.
I turn now to the law. Mushrooms naturally contain, as I have already
said, psilocin and its derivative psilocybin. Both these are drugs
that under Class A are controlled by the Misuse of Drugs Act 1971,
Part 1, Schedule 2. As I have already indicated if eaten in their
natural fresh state, they produce what is colloquially known as a
"high". It was held in Regina v Goodchild which concerned possession
of leaves and stalks of a cannabis plant, that there was no offence
committed where the relevant drug in, this case cannabinol derivative
THC, occurred naturally and is not a preparation or product, and I
would like just to read what Lord Diplock says. This is I may say the
case to which I do not have a reference. It does not matter vastly,
but I think we need to come back to it.

MISS EVANS: Your Honour, I have it, 67 Criminal Appeal
Reports 56.


MISS RECORDER MISKIN: I refer to the judgment of Lord Diplock, who
gave the main judgment in this case and this begins at page 60 and at
the bottom of the page beginning "My Lords, The Misuse of Drugs Act".
What he says is this "My Lords The Misuse of Drugs Act 1971 is a
criminal statute, it makes it an offence to be in possession of any of
a long list of drugs and makes the gravity of the offence depend upon
the class of listed drug into which the particular substance in his
possession falls. Most though not all of the listed drugs in the three
classes A, B and C are described by their precise chemical name and
are synthetic substances which do not occur in the natural state. In
the case of these drugs, there is no room for doubt or ambiguity, a
substance either is the described synthetic drug (or a preparation or
other product contained in the described synthetic drug) or it is not.
But there are some listed drugs which, although they can be
synthesised, also occur in the natural state in plants, fungi or
animals, and these include some of the most used narcotic drugs. It
would not in my view be a natural use of language to say for instance,
that a person was in possession of morphine when what he really had
was opium poppy straw, from which whatever morphine content there
might be in it, had not yet been separated, nor do I think it would be
an apt use of language to describe the poppy straw as a "preparation
or other product" containing morphine since this expression is
inappropriate to something that is found in nature as distinct from
something that is man-made.

Regarded simply from the point of view of language, the matter is in
my view put beyond doubt as respect the specific narcotic ingredients
found in opium poppies by the inclusion in the list as separate items
"opium" and "poppy straw", as well as morphine, the bane, codeine and
several other specified alkaloids which are or maybe constituents of
opium and of poppy straw. A similar indication of the meaning of
references in the Schedule to specific drugs by their scientific names
is to be found in the inclusion as separate items of "cocaine" itself
and "coco leaf' which contains cocaine and from which cocaine can be
extracted. I should conclude, therefore, that prima facie, a reference
in Schedule 2 to a specific drug by its scientific name, does not
include a reference to any naturally occurring substance of which the
specific drug is a constituent but from which it has not yet been
separated." And he then goes on to say "So prima facie, one would not
suppose that possession of natural occurring leaf and stalk of the
plant cannabis satifer of which cannabinol derivative THC was an
unseparated constituent could be charged under the Act of a cannabinol
derivative". At the bottom of that page, I shall miss out the bit in
between as it is not relevant, I would construe the Act in such a way
as to avoid this irrational and unjust result" and I think I ought to
read the paragraph before. "My Lord such inference as to the ambit of
enacting words that can be derived from the presence of a proviso or
the exception is notoriously a weak one since the proviso or exception
may have been inserted permajorem cautelam. In any event it must give
way whenever the consequences of applying it would be irrational or
unjust. In the instant case the consequence at the time that the
appellant was prosecuted would have been that he would be liable to be
convicted of the more serious offence of unlawful possession of a
Class A drug, whereas if what he had had in his possession had
included part of the flowering or fruiting tops of the cannabis plant
and so contained a greater concentration of cannabinol derivatives he
could only have been convicted of the lesser offence of possession of
a Class B, to wit cannabis itself."

This case, for the record, concerns somebody who was found in
possession of a stalk and leaves of the cannabis plant. He goes on, "I
would construe the Act in such a way as to avoid this irrational and
unjust result, a man should not be gaoled upon an ambiguity, I would
allow the appeal and quash the conviction of the appellant for the
offence of unlawful possession of a cannabinol derivative". Now the
next paragraph goes on to say that the definition of cannabis has now
been amended by Section 52 of The Criminal Law Act 1977 so as to
include the whole of the plant except the mature stalk and fibre
produced from it and the seeds. Thereby as Lord Diplock points out,
"obviating the necessity for any cases of this type in the future".
That if I may so, I find helpful and significant and it is as I say,
obvious from that, that the gap in the Act was filled by further
legislation.

Now, what the defence say in their abuse of process argument is this,
if I may read from the helpful skeleton argument. Before I go on to
the skeleton argument, I should just like to make this point, I have
references in both the defence and the prosecution's argument to EEC
law and both of these make reference either to the fact that the
writer knows little or anything about EEC law and secondly, in the
case of the defence that there is a need for reference to an expert.
The prosecution says in terms, that he is not learned in EEC law. Now,
this point has been made before, but I am going to make it again.
European Community law is part of our law, it has long fingers, it
penetrates every single area of English law. It behoves counsel who
are preparing cases to observe and take EC points where appropriate,
and if they are taken against them to make sure that they are familiar
with the relevant law. It is not good enough, in my judgment just to
say "well I do not know about this". If the matter is to be brought
before the court and the law is to be properly presented then some
study of the necessary provisions has to be made.

Now as I was just saying, I come to the defence skeleton argument, in
respect of the abuse of process. First of all, and I do not think that
there is any controversy about this, at page 3 of her argument, Miss
Evans at paragraph 10, starts with the general principle of the
court's power in respect of abuse of the process as set out in
Connolly DPP [1964] AC 1254 and she says, and as I say there is no
dissenstion from this, "the court has a general and inherent power to
protect its process from abuse. This power must include a power to
safeguard an accused person from oppression or prejudice" and she then
goes on to say, "that this has been defined in Hui Chiming' [1992] RAC
34 as something so unfair and wrong that the court should not allow a
prosecutor to proceed with what in all other respects, is a regular
proceeding". Her next point, and there is no contention about this, is
that the burden of establishing an abuse rests on the defendant and
the standard of proof is the balance of probability, that is to say
the civil standard. Perhaps I do not need to be told that how the
defendant discharges that burden on him must depend on all the
circumstances of the case, but I should refer to what Lord Lane said
in Attorney Generals reference (no. 1 of 1990)(1992) 95 CAR 296; that
stays should only be imposed in exceptional circumstances and it is
not possible to anticipate in advance all the infinitely variable
circumstances which may arise in future. Reference is then made to
Regina v Beckford [1991] CAR at page 94 and reference is
made to the judgment of Lord Justice Neil, "the Court of Appeal
identified two types of cases where proceedings may be stayed on the
basis that continuance would be an abuse of process, first where the
defendant would not receive a fair trial". That is not this case, nor
do I understand that to be the argument or, where it would be unfair
for the defendant to be tried. Now, in this context it seems to me
that I have to consider the case of Regina v Horseferry Road
Magistrates Court ex.p. BENNETT [1994] 1 AC 42, if I could just go to
that. This was a case notorious in its time, where somebody was
kidnapped from South Africa and brought to this country for trial and
the issue was whether the unlawfulness of his kidnapping or putting it
another way, the unlawfulness of the method whereby he was brought
into the country, made the trial procedure itself an abuse of the
process. At page 61, Lord Griffiths at letter H, says this, "your
Lordships are now invited to extend the concept of abuse of process a
stage further. In the present case there is no suggestion that the
appellant cannot have a fair trial, nor could it be suggested that it
would have been unfair to try him if he had been returned to this
country through extradition procedures. If the court is to have the
power to interfere with the prosecution in the present circumstances
it must be because the judiciary accept the responsibility for the
maintenance of the rule of law that embraces a willingness to oversee
executive action and to refuse to countenance behaviour, that
threatens either basic human rights or the rule of law. My Lords I
have no doubt, that the judiciary should accept this responsibility in
the field of criminal law. The great growth in administrative law
during the latter half of this century has occurred because of the
recognition by the judiciary and Parliament alike, that it is the
function of the High Court to ensure that executive action is
exercised responsibly and as Parliament intended. So also, should it
be in the field of criminal law, and if it comes to the attention of
the court, that there has been a serious abuse of power, it should in
my view express its disapproval by refusing to act on it". He then
goes on to consider the situation with regard to extradition and
refers here to Regina v Connolly to which I have already referred and
Lord Devlin's observation that "the courts cannot contemplate for a
moment, the transference to the Executive of the responsibility for
seeing that the process of law is not abused" and Lord Griffiths goes
on "The courts of course have no power to apply direct discipline to
the police or the prosecuting authorities, but they can refuse to
allow them to take advantage of abuse of power by regarding their
behaviour and as an abuse of process and thus preventing a
prosecution".

Regina v Bennett was followed in the case of Regina v Mullen [1999] 2
CAR 143 and I quote what Lord Justice Rose says at page 158 letter E,
"furthermore although abuse of process, unlike jurisdiction, is a
matter calling for the exercise of discretion it seems to us that
Bennett type abuse where it would be offensive to justice and
propriety to try the defendant at all, is different both from the type
of abuse which renders a fair trial impossible and from all other
cases where an exercise of judicial discretion is called for. It
arises not from the relationship between the prosecution and the
defendant but from the relationship between the prosecution and the
Court, it arises from the Court's need to exercise control over
executive involvement in the whole prosecution process not limited to
the trial itself' and again there is a reference to Connolly v DPP and
this time to Lord Morris at pages 206 and 1301, "a court must suppress
any abuses of its process and defeat any attempted thwarting of its
process".
The defendants case therefore is really this. It is summarised at page
6 of Miss Evans' skeleton argument. I hope she feels that I am not
showing any disrespect by not setting this out in full, but what she
says is, that the abuse is constituted in the following ways, first
the apparent acceptance of the executive thus far to allow the
importation and distribution of fresh mushrooms. She relies on the
evidence of the witnesses, I have already referred to, all of whom
checked with the authorities as to the lawfulness of their proposed
sale of magic mushrooms. Mr Bovey had the mushrooms inspected by the
Customs which were cooled in transit, and the Customs have never
suggested that this was other than a lawful importation.


Next she relies on the Home Office circular, I note and the point is
made by Mr Warren on behalf of the prosecution, that the Home Office
expresses reservations about whether refrigeration for chilling
mushrooms constitute either a preparation or a production. Now, what
is not disputed is this, the court has a general and inherent power to
protect its process from abuse and that is to be found in Connolly v
DPP. This includes in my judgment, a power to safeguard the accused
from oppression or prejudice and relying on Regina v Hui Chi Ming,
something so unfair and wrong, the court should not allow the
prosecutor to pursue what is in all other respects a regular
proceeding. The burden of proof is on the defendants, which they have
to discharge on a balance of probabilities. A stay should only be
imposed in exceptional circumstances, it is not possible to anticipate
in advance all the infinitely variable circumstances which may arise
in future and see Lord Lane in the Attorney General's reference 1992.
The situation here is this it seems to me, and I so find, that the
thrust of the prosecution case is that keeping mushrooms cool or cold
and packaging them is a process of preparation and production, such as
to make their sale and supply unlawful. If of course, the persons who
sold or imported these mushrooms were not allowed to chill them, I do
not think it is fanciful to suggest that it would have a dramatic
effect on the ability of such people to stay in business. I have to
say, that, I take the view that this is not the right way to go about
dealing with this matter. It seems to me this is a matter for
Parliament, but I will come back to that.

Those witnesses I have heard and the defendants themselves, went out
of their way to check the legality of what they were doing. I take the
view, the Home Office circular which deals with the cooling and
chilling point, is a fudge, to put not too fine a point on it. They
are being ultra cautious maybe, but I do not think the language is
very happy, because everybody is entitled to know exactly what is and
what is not a criminal offence. The Customs have consistently approved
the import and distribution of fresh mushrooms, a number of which have
arrived chilled, in the same way as they were found by the police in
this case, and V AT is charged on their sale. The prosecution, Mr
Warren, says that "the acceptance by Customs of the import of these
fresh mushrooms and the charging of V AT cannot amount to an estoppel
in relation to future prosecutions". In my judgment the real issue is
not whether there is an estoppel, it is whether the executive should
deal with those who trade in fresh mushrooms inconsistently and I do
not think they should. I refer again to what was said by Lord Diplock
in the case of Regina v Goodchild and similarly in the case of Regina
v Bennett and Regina v Mullen, in the passages I have just read out.

In my judgment, this is the sort of case that is referred to,
particularly by Lord Diplock in the case of Regina v Goodchild, and it
does seem to me that when he says a man should not be jailed upon an
ambiguity, I respectfully adopt that observation. It seems to me and I
so decide that this is a case where rightly or wrongly, Parliament has
left a gap very much like the case of Regina v Goodchild and it seems
to me that that gap ought really to be filled by Parliament and not by
decisions of these courts. The next point is the issue of V AT, I have
been referred to two European cases which I have found of assistance.
The first is a judgment in the case of Witzemann Hauptzollampt
Munschen-Mitte [1990] European Court Reports 1/1477 and this
observation was endorsed in the later case of Fischer [1998] STC 708.
The court held (this concerned V AT on gambling) "illegal imports or
supplies of narcotic drugs or counterfeit currency whose release into
the economic and commercial channels of the community, was by
definition precluded and which could give rise only to penalties under
the criminal law, were wholly alien to the provisions of the Sixth
Directive and did not give rise to any V AT debt". Whilst it may be
said that the remedy for the citizen is the repayment of improperly
applied VAT, the problem of the citizen's perception of whether they
are acting in an illegal or legal manner cannot be remedied when it is
later alleged they have committed a criminal offence. That latter
paragraph I have imputed to the European Court, but in fact I think it
is an observation of Miss Evans'. So that as I say the quotation ends
with the words "and did not give rise to any V AT debt."

The fact is that Value Added Tax is a European tax. This country is
subject to European law which is supreme and I must take notice of
what is said in this case and it does seem to me that this is a
powerful and persuasive argument for saying that if, the Customs and
Excise in this country impose V AT on these mushrooms coming in then
they do not take the view that these are either illegal, or within the
meaning of this case "a supply of a narcotic drug" and if they do not
take that view, then it is difficult for the citizen to know what his
position is. There is also an argument under Article 28 of the
European Community Treaty, again I would just like to read this out.
Article 28 says this "that quantities restrictions on imports and all
measures having equivalent effect, are to be prohibited between member
states." What this means is that anything which has the effect of
stopping the free movement of goods is to be prohibited between the
member states, it goes on "however, according to Article 30,
restriction on imports which are justified in particular, on the
grounds of the protection of health and life of humans, animals and
plants are authorised in so far as they do not constitute either a
means of arbitrary discrimination or a disguised restriction on trade
between member states".

Leaving aside the question of whether this is an arbitrary
discrimination or a disguised restriction, which has not really been
argued before me, I do take the view that this is an added reason why
the authorities in this case, have sent out conflicting messages.
Because if in truth, they took the view that fresh mushrooms which had
been chilled constituted a threat to health, then they could have
legislated to prevent that and they have not done so. That being so,
as I say, it seems to me to add force to the argument that this is
indeed an abuse. Finally I come to an argument in relation to Article
7 of the Convention on Human Rights and what Miss Evans says is this
"in the case of Regina v Handyside [1974] 17 Yearbook 228, the
European Commission held that Article 7 includes the requirement that
"the offence", or one might add 'an offence', "should be clearly
described by law but held it with sufficient if the legislation
provided, a general description which was then interpreted and applied
by the courts". Now that of course does not exactly fit this situation
but it does seem to me, that if one is looking at this legislation, it
is not enough again with respect, adopting the reasoning of Lord
Diplock in Regina v Goodchild for the legislation simply to say that
these two drugs are unlawful, but not specifically legislating in
respect of these products where they occur naturally.

Very much like Regina v Goodchild, it seems to me that if, that is
what the legislation intended, that is what they should have provided.
There is one further argument by the defence and that is in the
national newspapers, there have been various references to the
legality of selling fresh magic mushrooms. I have to say that I, to a
degree, go along with Mr Warren for the prosecution on this. I think
that newspapers are not always entirely reliable in what they report
and often Governments have reasons for not proceeding against
newspapers, but I do not say that I take no account of this point,
particularly since the report in the Guardian that I have seen, is in
fact a fair and accurate reflection of the law as it now stands ..
In conclusion, my view of the matter is this. It seems to me, that
following what Lord Diplock said in Regina v Goodchild that somebody
should not be jailed on an ambiguity. Having regarded the position of
the executive, namely that Customs and Excise charge VAT, that the
police take no action, certainly in parts of the country, against
magic mushrooms being sold fresh and openly and also the letter from
the Home Office, I think that proceeding now with this prosecution in
this way is an abuse of the process of this court. Accordingly I am
going to order that this indictment be stayed.

MISS EVANS: Can I ask that your Honour would make a
Defendants Costs Order and
might the defendants be discharged?





MISS RECORDER MISKIN: Yes, you may step down. Thank you both very much
indeed. Something tells me we shall be seeing this again, but
nevertheless the issues are not easy.

MISS EVANS: Your Honour might like to know that there is another case
in Canterbury which is almost identical that is to be heard in about
April, I think, and they have already expressed a view that they would
certainly like to see your Honour's judgment in this Gloucester case.

MISS RECORDER MISKIN: Very well, I will rise.
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Signed: Mendip- Wordwave Partnership