New Decision. Royal Courts Of Justice London. CBD flowers not narcotics. (CASE: UNCLE HERB.) German courts: CBD flowers are Narcotics. English Language Version.

From the Royal Courts of Justice London. Applying EU law to domestic UK law. Please note this judgement is incomplete. Some sections of legislation referred to by Justice Foxton have not copied completely. However, putting this aside it remains a very informative read. The Judgement is excellent and clear overall. If you read this judgement and then the judgement from Leipzig concerning Bunte Blüte ( Bundesgerichtshof) the level of legal reasoning from the London court is far superior and application of law to cannot be criticised. The leipzig decision really leaves one to scratch one’s head in disbelief and wonder exactly what’s going on in the German courts. This judgement came after the Leipzig decision and is perhaps the most recent and authoritative EU decision regarding CBD law. There is another excellent decision referred to by Justice Foxton- from Southern Ireland – Jenkins v DPP again excellent legal reasoning and a credit to the legal system. We will try to get these all online here in the blog section, complete, but they are easily found with a search engine. Please note sections of the below judgement have been made bold by us to emphasise relevant sections. The judgment was not released with bold.

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT IPSWICH
MR RECORDER DIJEN BASU KC
T20200445

B e f o r e :

LORD JUSTICE EDIS
MR JUSTICE JAY
and
MR JUSTICE FOXTON
____________________Between:

____________________

Louis Mably KC and Richard Evans (instructed by Crown Prosecution Service) for the Applicant
Eleanor Margiotta in person.
The other respondents did not appear and were not represented.

Hearing dates : 21 June 2023
____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

1. On 15 October 2020, the Respondents were each charged with:
2. By a final ruling dated 18 April 2023 (the Final Ruling), Mr Recorder Dijen Basu KC (the Recorder) stayed the prosecution, on the basis that, having regard to Article 34 of the Treaty on the Functioning of the European Union (TFEU), it was not a criminal offence for the Respondents to import and sell the Imported Material, having regard to its chemical composition.
3. The applicant (the Prosecution) now seeks permission to appeal that ruling on three grounds:
4. In 2019, the Respondents carried on business under the name “Uncle Herb” importing and selling vegetable material, namely the plant Cannabis sativa, from Italy where it was grown lawfully. The Imported Material included the “female” flowering heads of the cannabis plant.
5. On 21 September 2019, individuals at a delivery depot handling packages addressed to the Respondents noted the smell of cannabis emanating from the packages, and alerted the authorities. A police investigation followed, which established the following:
6. An indictment setting out the charges at [1] was preferred on 6 November 2020. In their Defence Statements, the Respondents put forward a number of defences, including that Cannabis sativa or hemp with a THC content of 0.2% was not a controlled drug, having regard to the provisions of EU law which were in force when the Imported Material was intercepted.
7. On 6 January 2021, and again on 8 April 2021, the Respondents applied to dismiss the charges on various grounds. Those applications were rejected, for reasons which were not placed before this court. However, on 4 October 2022, the Respondents issued a further application asking the court to stay the charges on the basis they constitute an abuse of process, raising grounds which overlapped with those previously raised on the application to dismiss. We understand that the Prosecution accepted that it was open to the Respondents to bring the abuse of process application on the basis on which they did.
8. It might well be thought that the Respondents’ essential complaint – that the matters with which they were charged did not disclose an offence known to English law – was one which was more appropriately advanced either by way of an application to dismiss, or as a defence at trial on the basis that there was no case to answer on the Prosecution’s evidence, rather than relied upon as rendering the prosecution an abuse of process. The Prosecution having been content for the Respondents to raise their objection through the medium of an abuse of process application, we have dealt with it on that basis. We should make it clear that, in doing so, we are not to be understood as accepting either that an application to stay for abuse of process is the appropriate means of pursuing an argument of the kind the Respondents raise, nor that, such an argument having failed to obtain a dismissal, it could nonetheless be put forward in support of the stay application. Finally, the procedural course followed, and the Prosecution’s approach to the abuse of process application as set out below, have had the result that the factual position against which the issues of law raised by the Prosecution are to be decided is neither as clear nor as comprehensive as would be desirable.
9. On 20 September, HHJ Levett ordered the Respondents to serve their skeleton argument in support of the abuse of process application by 3 October 2022, with the Prosecution’s response to be served by 24 October 2022. The Respondents served a substantial skeleton argument, supported by a large number of attachments and supporting material, by the stipulated date. The Prosecution sought and was given additional time for its response, but it had still not served that response when the application came on for hearing before the Recorder on 15 and 16 November. Prosecuting counsel attended the hearing on the understanding that the application was not listed for full argument, and was not in a position to assist the Recorder on the legal issues which the abuse of process application raised.
10. In these circumstances, the Recorder decided to hear the Respondents’ application and to issue a draft ruling setting out any points he was minded to accept, with the Prosecution then being afforded an opportunity to respond to and challenge the draft ruling. The draft ruling was provided to the Prosecution and the Respondents on 16 November, and it upheld the abuse of process application insofar as it alleged that the conduct alleged in the indictment was not unlawful, once regard was had to the position under EU law. The Prosecution served a response to the ruling on 6 December 2022, challenging the draft ruling. On 18 April 2023, the Recorder issued the Final Ruling.
11. We wish to pay tribute to the Recorder’s careful and comprehensive ruling. He summarised his conclusions at [63]:
12. We would note the Recorder’s observation that the Prosecution had not sought to justify the application of the MDA 1971 to the Imported Material on the basis of Article 36 of the TFEU, or to adduce evidence to support such a contention.
13. In characteristically clear terms, Lord Diplock explained the biological and chemical characteristics of the cannabis plant in DPP v Goodchild [1978] 1 WLR 578, 580 as follows:
14. The features of Cannabis sativa noted at [13] above are reflected in the United Nations Single Convention on Narcotic Drugs 1961 (the Single Convention), and in the MDA 1971 which was passed to give effect to the obligations of the United Kingdom as a signatory to the Single Convention (R v Taylor, [14] and [31]).
15. Taking the Single Convention first, Article 1:
16. It will be noted that the definition of cannabis is by reference to specific parts of the plant, either on their own or in combination with other parts, a definition which only applies if the resin has not been extracted. It will also be noted that the definition does not require any particular level of THC in the specified parts of the plant.
17. Article 2(1) provides:
18. Article 4 provides that:
19. Article 28 provides:
20. Finally, Article 30(1)(a) provides:
21. On 24 January 2019, the World Health Organisation recommended amending Schedule I to the Single Convention to clarify that CBD was not a narcotic drug, and removing cannabis from Schedule IV, which lists narcotics perceived as particularly dangerous. The amendments to Schedule IV were made in 2021.
22. As we have observed, the United Kingdom gave effect to its obligations as a signatory to the Single Convention through the MDA 1971.
23. Section 2(1) of that Act defines “controlled drug[s]” as those specified in Parts I, II and III of Schedule 2 to the Act.
24. Section 3 of the MDA 1971 prohibits the importation and exportation of a controlled drug, save where the drug is for the time being excepted from that prohibition or “in accordance with the terms of a licence issued by the Secretary of State and in compliance with any conditions attached thereto.”
25. Section 4 provides that, subject to regulations, “it shall not be lawful for a person—(a)  to produce a controlled drug; or (b)  to supply or offer to supply a controlled drug to another” and makes it a criminal offence to engage or be concerned in those activities.
26. Section 37 contains the following definitions:
27. Like the Single Convention:
28. For the purposes of determining the abuse of process application, the Recorder accepted that the Imported Material constituted a controlled substance, namely cannabis ([25] of the Final Ruling). There is no dispute that the Respondents did not have a licence to import or sell it. On that basis, viewed through the lens of the MDA 1971 (and subject to any defences), the Respondents’ activities were capable of giving rise to criminal offences. The Respondents argue that if the field of vision is widened to include EU law, that ceases to be the case.
29. This case is principally concerned with provisions of EU law addressing the common, or as it became known single, market in agricultural products. Articles 34 to 36 of the TFEU (previously Articles 28 to 30 of the Treaty of Rome) provide: [What is Article 34 of the TFEU – The free movement of goods is realised not only by the removal of fiscal barriers but also by the removal of non-financial obstructions. Articles 34 and 35 of the TFEU prohibits any form of quantitative restrictions on imports and exports and any measure having the equivalent effect of quantitative restrictions. Article 35 TFEU(ex Article 29 TEC) Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States. Article 36 of the TFEU allows Member States to impose restrictions equivalent to quantitative limits for non-economic reasons such as public morality, policy, or security. These exceptions should be narrowly interpreted and cannot lead to arbitrary discrimination or hidden trade barriers between Member States.30 Apr 2024
30. By Article 38 (previously Article 32):
31. Articles 39 to 44 set out the common agricultural policy. Annex I includes as Chapter 57:
32. The law of the EU has had to grapple with the multiple potential uses of the plant Cannabis sativa, seeking to apply the principles of the common market to hemp as an agricultural product, while acknowledging the status of cannabis as a narcotic.
33. Regulation (EEC) No 1308/70 of 29 June 1970 on the common organisation of the market in flax and hemp made provision for community aid in support of industrial hemp production. That Regulation was amended by Council Regulation (EEC) No 1430/82 of 18 May 1982. The recitals to the amending Regulation provided:
34. Article 4(1) of Regulation 1308/70 was amended (by Council Regulation (EEC) No 1430/82 of 18 May 1982) to add an additional paragraph to Article 4(1):
35. Regulation (EEC) No 618/71 was also amended by Regulation (EC) No 1420/98 of 26 June 1998, so as to provide:
36. 0.3% for the purposes of the grant of aid for the marketing years 1998/1999 to 2000/2001.
37. 0.2% for the purposes of the grant of aid for subsequent marketing”.
38. The CJEU’s decision in Hammarsten (Case C-462/01 of 16 January 2003) concerned a Swedish farmer who wished to grow a crop of industrial hemp. Section 1 of the (Swedish) Law on Narcotics 1968:64 prohibited the cultivation of narcotics without the necessary authorisation, and section 6 permitted the State to forfeit any narcotics grown in breach of Section 1. Further legislation limited the possession of narcotics to medical or scientific purposes or for reasons of public interest, and sections 4 to 8 of the Law on the Control of Narcotics 1992:860 provided that the cultivation of narcotics was subject to authorisation by the Swedish Medical Products Agency.
39. Annex 1 to the (Swedish) Regulation on the Control of Narcotics 1992:1554 provided that all parts above ground of cultivated plants of the cannabis species (with the exception of seeds) from which the resin had not been extracted constituted narcotics. Like the Single Convention and the MDA 1971, there was no specified THC content.
40. Mr Hammarsten applied for, but was refused, authorisation to cultivate Cannabis sativa. He proceeded to grow the crop anyway, and the plants were seized by the Swedish authorities who brought court proceedings to forfeit them. In response, Mr Hammarsten contended that the hemp seized came exclusively from plants which had a THC content which did not exceed 0.3%. He argued that the plants constituted “agricultural products” for the purposes of the Treaty of Rome, and that EU law permitted the cultivation of Cannabis sativa from authorised strains whose THC content did not exceed 0.3%/0.2% from 2001/2002. The Swedish Court (the Halmstads Tingsrätt) referred three questions to the CJEU:
41. In support of its argument, the Swedish Government pointed to the fact that cannabis was listed in Schedules I and IV of the Single Convention, and the irrelevance of the THC content to that classification. It contended that the cultivation of industrial hemp increased the risk of plants with a high THC content being grown because of the impossibility of distinguishing between the two without laboratory analysis, and because the THC content of plants can increase during their life.
42. In her opinion of 8 October 2021, Advocate General Stix-Hackl stated that the Single Convention did not apply to cannabis cultivated for industrial purposes. She expressed the view that the Swedish prohibition on the cultivation of industrial hemp interfered with the common organisation of the market in flax and hemp, and had an effect equivalent to the quantitative restrictions in Articles 28 and 29 (now Articles 34 and 35). For those measures to be justified under Article 30 (now Article 36), they must pursue an objective which is not covered by EU law, and the national rules must be consistent with the principle of proportionality. The Advocate General expressed the view (at [53]) that the first of those requirements was not satisfied because:
43. We note that this observation – that the Regulation has already addressed and answered the issue of the impact of cannabis on health, through the THC limits specified – does not appear to engage with the Swedish Government’s argument that a system of effective cannabis control could not practically be undertaken if its application depended on the THC level, given the impossibility of distinguishing between cannabis plants on that basis outside a laboratory.
44. The CJEU, in its judgment of 16 January 2003, held that the prohibition undermined the common organisation of the market in the hemp sector, because it deprived Swedish farmers of any possibility of claiming the community aid which was available, and that:
45. It rejected reliance on the Single Convention, stating that:
46. The CJEU concluded by holding that the limits of aid specified in Regulation 1308/70 to the growing of seeds with particular characteristics “preclude national legislation such as that in point in the main proceedings”. [36]
47. The specific enactments setting the framework for the cultivation, importation and sale of cannabis plants and their products have changed since the Hammarsten decision, although their broad effect has remained the same.
48. By Council Framework Decision 2004/757/JHA of 25 October 2004, minimum provisions as to the constituent elements of criminal acts and penalties in the field of illicit drug trafficking were established. Article 1 defined “drugs” as substances covered by the Single Convention, and a further United Nations Convention, the Convention on Psychotropic Substances 1971. This listed psychotropic substances in four schedules, none of which referred to cannabis or cannabis-derived products, although Schedule I included some isomers of THC. By Article 2(1)(a) of the Framework Decision, each Member State undertook to take the necessary measures to ensure that the intentional undertaking of various acts of manufacture, sale, distribution, delivery, importation and exportation of drugs without legal right was punishable.
49. Regulation (EU) No 1307/2013 of 17 December 2013 now sets out the rules for direct payments to farmers under the common agricultural policy:
50. Regulation (EU) 1308/2013 of 17 December 2013 now establishes the “common organisation of the markets in agricultural products”:
51. In BS, CA, BS and CA were directors of a French company which marketed an electronic cigarette which contained CBD oil imported from the Czech Republic, where the cannabis plants from which the CBD oil had been extracted had also been grown. They were convicted of an offence under Article R. 5132-86 of the Public Health Code which prohibited the production, manufacture, transportation, importation, exportation, possession, supply, transfer, acquisitor or use of:
52. The Decree of 22 August 1990 had been adopted pursuant to that derogation, authorising the importation, exportation and industrial and commercial use (fibre and seeds) of varieties of Cannabis sativa with a THC content which did not exceed 0.2%. This derogation was limited to CBD oil extracted from fibre and seeds, and did not apply to the CBD oil used in the electronic cigarettes which was extracted from the whole plant, including leaves and flowers. BS and CA were found guilty. On appeal the Court of Appeal of Aix-en-Provence referred the following question to the CJEU:
53. Advocate General Tanchev, in his opinion of 14 May 2020, began by considering whether Regulations No 1307/2013 and 1308/2013 applied to the product whose use had been held by the Marseilles Criminal Court to be unlawful – the CBD oil imported from the Czech Republic. He expressed the opinion that the Regulations were not applicable, because CBD oil was not a product referred to in Annex I of the TFEU and “therefore CBD oil does not come within the scope of Regulations No 1307/2013 and No 1308/2013” ([42]-[45]).
54. He also held that, even if the Regulations had applied, it would have been open to France to adopt legislation prohibiting the importation of CBD provided that it was appropriate for ensuring protection of human health and did not go beyond what is necessary to attain that objective ([61]). As we read the opinion, Advocate General Tanchev proceeded on the basis that, if Regulations No 1307/2013 and 1308/2013 had applied to the CBD oil, that would have been determinative that Article 34 applied, albeit leaving open the scope for the Member State to impose measures under Article 36:
55. It is also noticeable that, in contrast to Advocate General Stix-Hackl and the CJEU in Hammarsten, Advocate General Tanchev did not regard the application of Regulations Nos 1307/2013 and 1308/2013, with their reference to the need for the THC content of Cannabis sativa plants not to exceed 0.2%, as precluding legislation by a Member State which would be compatible with Article 36. He rejected the suggestion that the risks to human health posed or potentially posed were covered exhaustively by Regulation No 1308 ([54]), noting that the Recitals to Regulation No 1308/2013 were in different terms to those to Regulation No 1480/82 ([56]).
56. The Advocate General went on to consider whether Articles 34 and 36 of the TFEU applied to the importation of the CBD oil independently of any application of these Regulations. For this purpose, the Advocate General addressed the issue of whether CBD oil was to be treated as a narcotic drug, and hence a res extra commercium, which would not fall within Article 34 ([62]). The Advocate General’s conclusion was that CBD oil did fall within Article 34.
57. He accepted that narcotic drugs which were not distributed through controlled channels with a view to use for medical or scientific purposes did not benefit from Article 34 and the free movement of goods, referring in this connection to decisions on cannabis sold from a Dutch coffee-shop (Josemans, C-137/09, EU:C:2010:774) or a youth centre (Happy Family v Inspecteur Der Omzetbelasting C 289/86, 5 July 1988) ([[72]). However, he concluded on the evidence before the court that CBD oil was not a narcotic, noting:
58. The Advocate General considered whether the Decree of 22 August 1990 could be justified under Article 36. He noted that, on the evidence, CBD oil did not appear to possess any psychotropic effects, and there was no evidence that the French Government had carried out any comprehensive assessment of the risk of CBD oil in electronic cigarettes by reference to the most reliable and recent scientific evidence available, but stated that, ultimately, this was for the national court to determine ([83]-[84]).
59. The CJEU, in its judgment of 19 November 2020 agreed that Regulations Nos 1307/2013 and 1308/2013 did not apply to CBD oil, which did not fall within the definition of “true hemp” used in Annex I to the Treaties ([51]). The Court did not address the Advocate General’s alternative analysis based on the premise that Regulations Nos 1307/2013 and 1308/2013 did apply. However, the Court said nothing to challenge the assumption on which the referring court had raised the issue of their application – namely, if these Regulations applied, the Decree of 22 August 1990 would not be in accordance with EU law.
60. Like the Advocate General, the Court accepted that narcotic drugs which were not distributed through strictly channels strictly controlled by competent authorities for medical and scientific purposes did not fall within Articles 34 and 36 ([61]). The Court considered whether CBD oil fell within the Single Convention. It stated that “on a literal interpretation”, it “might” be concluded that CBD oil, having been extracted from the cannabis plant, constituted an “extract … of cannabis” ([71]), but noted that:
61. Having concluded that the CBD oil was not a drug for the purposes of the Single Convention, Articles 34 and 36 TFEU applied to it. The CJEU noted that a restriction hindering access by products originating in one Member State to the market of another Member State might nonetheless be justified by reference to one of the grounds of public interest in Article 36, but that “the provision of national law must be appropriate for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it” ([83]). It was for the French Government, taking account of international scientific research, to demonstrate that the Decree of 22 August 1990 satisfied these requirements.
62. There is no dispute that, at the time of the alleged offences, the TFEU and Regulations such as 1307/2013 and 1308/2013 had direct effect as a matter of UK domestic law, and therefore the force of law. Section 3(1) of the European Union (Withdrawal) Act 2018 continued their effect as “retained EU law”.
63. By section 6(1) of that Act, case law of the CJEU handed down prior to 11pm on 31 December 2020 remains binding on the courts of England and Wales. However, section 6(4) and (5A) permitted regulations to be made to determine the extent to which any UK court was bound by retained EU case law. Regulation 3(b) of the European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020/1525 provide that the Court of Appeal could depart from retained EU case law. Regulation 5 provided that, in deciding whether or not to do so, the court should apply the same test as the Supreme Court would apply when deciding whether to depart from its case law. That test is summarised in Practice Statement (HL: Judicial Precedent) [1966] 1 WLR 1234 as supplemented by case law.
64. After that lengthy background, we turn to the Prosecution’s Grounds of Appeal.
65. The Prosecution’s submissions on Ground 1 sought to distinguish the CJEU’s decision in BS, CA on the basis that a cannabis plant (whatever its THC content) did constitute a drug for the purposes of the Single Convention, and for that reason fell outside Article 34 TFEU, whatever its THC level might be. The effect of this submission was that, whilst it might be possible applying the interpretative rules set out in the Vienna Convention of 23 May 1969 on the Law of Treaties Between States and International Organisations to interpret the words “extracts of cannabis” as only not extending to CBD oil extracted from cannabis plants with a THC content not exceeding 0.2%, it was not possible to interpret the words “the flowering or fruiting tops of the cannabis plant” as meaning “the flowering or fruiting tops of the cannabis plant where the THC content of the plant exceeds 0.2%.”
66. It also contended that:
67. Whatever the merits of these points, based as they are solely on an analysis of Article 34 read in conjunction with the Single Convention and not on Regulations 1307/2013 and 1308/2013, in our view the Prosecution faces a more fundamental difficulty arising from the findings of fact made by the Recorder. In the Final Decision, the Recorder found that:
68. On the basis of those factual findings, which (for understandable reasons) there was no attempt to challenge on the application, in our view the CJEU decision in Hammarsten is directly engaged:
69. The conclusion that the application of Regulations Nos 1307/2013 and 1308/2018 to the Imported Material is determinative of the application of Article 34 is also supported by Advocate General Tanchev’s opinion in BS, CA, as we have set out at [53] above. Although the CJEU did not directly address that argument, the structure of their judgment is consistent with the view that the applications of those Regulations would be determinative of the application of Article 34 ([58] above).
70. We further note that this conclusion is also consistent with the decision of Ms Justice Egan siting in the High Court of Ireland, in an impressive ex tempore judgment in Jenkins v DPP, Ireland [2022] IEHC 291. Jenkins was a case in which the court was being asked to grant a stay of the criminal prosecution brought under the Irish Misuse of Drugs Act 1977 in respect of cannabis material imported into Ireland from a non-EU country. Obtaining a stay appears only to have required the plaintiff to establish an arguable case that the matters alleged to give rise to the offences with which he was charged did not disclose a criminal offence known to Irish law, once the provisions of EU were brought into account ([61]). However:
71. We are not persuaded that there is any material distinction between the MDA 1971 and the provisions of the Swedish “Criminal Law on Narcotic Drugs” and the “Law on the Control of Narcotics” considered in Hammarsten. Both permitted the cultivation, import, manufacture, export and sale of cannabis or cannabis plants with authorisation from the authorities for medical, scientific or public purposes. If the question is posed whether the MDA 1971 as it applies to the Imported Material has the effect of hindering the access of Cannabis sativa plants with THC levels not exceeding 0.2% to the UK market (applying the test in Austria v Germany C-591/17, EU:C:209:504, [121]), the answer can only be yes.
72. In these circumstances, we are satisfied that on the factual findings he made in the context of the application of Regulations 1307/2013 and 1308/2013, the Recorder was right to conclude that the importation of the Imported Material engaged Article 34 TFEU.
73. In reaching this conclusion, we are not to be interpreted as holding that Mr Mably’s submissions on Article 34 do not possess some force. If one were to put the Regulations entirely to one side, the focus would be on the relationship between Article 1 of the Single Convention (applying as it does to Cannabis sativa regardless of its THC content) and the exemption in Article 28.2 to the cultivation of industrial hemp exclusively for its flax and seeds. It is clearly arguable that the Imported Material does not fall within that exemption. In addition, there is some force in the contention that whereas CBD oil is capable of being envisaged as other than a cannabis extract for the purposes of the Single Convention, the same could not be said of the flowering heads of the plant itself. This is an issue on which a more extensive investigation of the history and terms of the Single Convention and the accompanying United Nations Commentary on the Single Convention on Narcotic Drug, 1961, might well have cast light. However, Mr Mably had no real answer to the brace of CJEU decisions which we have considered in some depth founded, as they are on delegated legislation which clearly had in mind the salient provisions of the Single Convention.
74. For these reasons we think it right to grant the application for leave to appeal on Ground 1, but to dismiss the appeal.
75. Mr Mably identified a number of reasons why it was said that a prohibition on the importation of cannabis plants which did not distinguish between plants depending on whether or not their THC levels exceeded 0.2% was justified by Article 36, on “grounds of public morality, public policy or public security [and] the protection of health and life of humans.”
76. The argument included points along the following lines:
77. We are far from saying these are negligible arguments. We note in this regard that the United Nations Commentary on the Single Convention stated that the definition of cannabis which it adopted was broader than that in the League of Nations Convention of 1925. The latter was confined to the dried or fruiting tops of the female plant, which were “particularly rich in the pharmacologically strongly active resin”. The Commentary explains:
78. However , it is right to note that Ms Margiotta had many points she wanted to make in response to any Article 36 argument. We also note the scope for debate as to the permissible ambit of any Article 36 argument (comparing the approaches in Hammarsten referred to at [41-44] above, and that of the Advocate General in BS, CA referred to at [53(1); 54]), as well as the requirements under EU law in order for establishing an Article 36 justification.
79. However, the Prosecution faces the fundamental difficulty that, while Ground 2 alleges that the Recorder erred in concluding that no Article 36 justification was made out, the reality is that no Article 36 argument was advanced before the Recorder, nor did the Prosecution seek to lay any evidential the groundwork for such an argument.
80. In these circumstances, and given the terms of section 67 of the CJA 2003, it would not be appropriate for this Court to seek to grapple with an argument of this kind for the first time on an appeal, nor would it be fair to the Respondents (who were first charged with these offences back in September 2019) to seek to do so.
81. For that reason, we refuse leave to appeal on Ground 2.
82. This point was very much a fall-back argument in Mr Mably’s submissions. He did not develop it either in writing or orally.
83. We have reached our conclusion on Ground 1 not solely by reference to BS, CA, but also by reference to the CJEU’s decision in Hammarsten. We have not found it necessary to consider the Article 36 argument, because the Prosecution did not raise that argument before the Recorder. Nor have we had the benefit of submissions on the history and scope of the 1961 Convention and the associated commentary which might will be material to any decision as to whether to depart from Hammarsten and BS, CA (cf [72] above). Further, we have been informed that Articles 34 and 36 no longer have direct effect as a matter of UK law, following the Prohibition on Quantum Restrictions Regulations 2020/1625. Finally, the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 emphasises the particular importance of certainty in the criminal law.
84. In these circumstances, we do not regard this case as an appropriate one in which to consider whether or not the court should depart from CJEU decisions forming part of retained EU law. In effect, this ground raises a different way of arguing Ground 1, in respect of which we have given leave to appeal. We refuse leave to argue it as a separate ground of appeal, but this would not prevent that argument from being advanced in support of any further appeal on Ground 1 if so advised.
85. We dismiss the appeal/application for leave to appeal and, pursuant to section 61(3) of the CJA 2003, order that the Respondents be acquitted on both charges in the Indictment.

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