Is the offence of possession of controlled drugs with intent to supply made out if the possessor only intends to supply the drugs when he arrives in a foreign country?

This question was considered by the Privy Council in the Bermudian case of Seymour v The Queen (CLW/08/08/9).

Section 5(1) of the Bermudian Misuse of Drugs Act 1972 prohibits the supply of a controlled drug to another, and section 6(3) makes it an offence for a person to have a controlled drug in his/her possession “which is intended… for supply in contravention of section 5(1)”.

The Privy Council held that the presumption against extra-territorial effect applies to the prohibition in section 5(1) and accordingly, a possessor of controlled drugs who intended only to supply them when he arrived in a foreign country would not be intending to make a supply which was prohibited by section 5(1) and, accordingly, would not be guilty of the offence contrary to section 6(3).

CLW comment

Whilst the decision turned on provisions of the local legislation, there seems to be nothing to prevent it being carried across to the Misuse of Drugs Act 1971.

The most cursory examination of the Bermudian statute reveals that it drew heavily on the United Kingdom Act of the previous year. As to the 1971 Act, the presumption of extra-territoriality applies equally to the prohibition on supply in section 4(1), and the prohibition on possession with intent to supply in section 5(3) is in effectively identical terms to section 6(3) of the Bermudian Act, referring crucially to “supply to another in contravention of section 4(1) of this Act”.

As to the Act not being extra-territorial, the provisions relating to “corresponding” laws in sections 20 and 36 would seem to be conclusive.

Exportation of a controlled drug is, of course, an offence, and it carries the same maximum penalty, but this may not be of much assistance to prosecutors where the possessor is nowhere near his exit point at the time of an arrest.

One difference between the legislation of the United Kingdom and that of Bermuda is that the latter has a specific offence of doing an act preparatory to the commission of an offence of exporting a controlled drug.

That clearly encompassed the conduct of the appellant in swallowing 19 wrapped pellets of heroin prior to embarking on a flight to the United States, a flight he never took because he became ill and admitted himself to hospital.