Court clarifies broad interpretation of supply in drug distribution charges under Misuse of Drugs Act 1971

Citation: [2023] EWCA Crim 1560
Judgment on

Introduction

In the case of R v Osman Omar Osman [2023] EWCA Crim 1560, the Court of Appeal, Criminal Division, tackled the legal interpretation of “supply” under section 4 of the Misuse of Drugs Act 1971. The court examined whether mere offers to supply controlled substances could be equated to the actual act of supplying them, as per the statutory provisions, while also considering precedents that have addressed similar issues.

Key Facts

Osman Omar Osman, the appellant, was convicted on three counts of being concerned in supplying controlled drugs contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. Evidence consisted of text messages found on a mobile phone in his car, which suggested that Osman was offering to supply drugs during the Glastonbury Festival where he worked as a steward.

The appeal centered around whether Osman’s actions of conveying offers to supply, as opposed to actual physical supply, sufficed to convict under the specific provision he was charged with. It also considered the possibly erroneous jury instruction by the trial judge regarding the application of the law to the facts of the case.

The key legal principles scrutinized in this appeal involved the understanding of “supply” within section 4 of the Misuse of Drugs Act 1971 and the comparison of two distinct offences under this section, namely:

  1. Section 4(3)(a): Supply or offer to supply a controlled drug.
  2. Section 4(3)(b): Being concerned in the supplying of a controlled drug.
  3. Section 4(3)(c): Being concerned in the making of an offer to supply such a drug.

These provisions establish different levels of involvement in drug distribution, with Osman’s charge falling under section 4(3)(b).

Precedents that informed this case’s judgment included R v Hughes [1980] 81 Cr.App.R 344, which elucidated the distinction between actual supply and the offer to supply, R v Martin and Brimecome [2014] EWCA Crim 1940, which defined broad interpretations for the term “supply,” and R v Coker [2019] EWCA Crim 420, emphasizing that charges must be specific to either supplying or offering to supply.

Outcomes

The Court opined that once the jury could be sure that Osman was responsible for sending the messages in question, the evidence showed he was actively concerned in the supply of drugs, thus meeting the criteria for section 4(3)(b). The Court distinguished the accused’s actions from merely making an abstract offer to supply, stating that Osman’s messages clearly indicated immediate availability and pricing for specified controlled drugs and directly led to an order for delivery (‘Bring the flake’).

It is worth noting that the Court acknowledged a misdirection by the trial judge who implied that it would suffice for the jury to find Osman was only concerned in making offers—whereas, for section 4(3)(b), the concern needed to be in the supplying of drugs. However, they concluded that the misdirection did not render the conviction unsafe since the correct application of law would have led the jury to the same verdicts.

Conclusion

In affirming the convictions, the Court of Appeal clarified the legal principle that “supply” in the context of section 4(3)(b) refers to a broad set of activities, not just the physical delivery of a drug, but also its entire distribution process. The case R v Osman Omar Osman affirmed the need for a detailed, fact-specific analysis when assessing charges of being concerned in the supply of drugs. This decision serves as a critical reference for legal professionals navigating the nuances of drug supply offences under the Misuse of Drugs Act 1971.