There are similar offences in sections 44-46 of the Serious Crime Act 2007 (“SCA”). Section 44 SCA criminalises intentionally encouraging or assisting an offence. Section 45 SCA criminalises encouraging or assisting an offence, believing it will be committed. Section 46 SCA criminalises encouraging or assisting offences, believing one or more of those offences will be committed. A UK-based operator of a cannabis seed business is potentially exposed to all of these inchoate offences, even though cannabis seeds are not themselves illegal. When, therefore, does selling something which is not itself illegal attract criminal liability because the circumstances of the sale are such that they constitute incitement to commit an offence? Case law provides some guidance.
In The Queen on the application of the United States of America v Gypsy Nirvana  EWHC 706, the US sought the extradition from the UK of a defendant accused of trafficking, exporting and importing marijuana seeds (and related money laundering). The District Judge at first instance found, and the Divisional Court on appeal agreed, that this conduct did not constitute a criminal offence contrary to UK law. Thus the “double criminality” rule of extradition was not satisfied, i.e. had the defendant trafficked, exported or imported marijuana seeds in the UK, he could not have been prosecuted in the UK. The defendant was therefore discharged from the extradition proceedings.
“it is not illegal to offer for sale or supply the paraphernalia associated with smoking cannabis and nor is it illegal to offer for sale or supply the equipment necessary to grow the plant, books which explain how cannabis may be grown or, indeed, cannabis seeds. As a result, there are a number of shops and other outlets which offer these goods for sale but it is obviously very important that these premises do not overstep the line and incite the commission of an offence.”
Arguably, this is a narrow and artificial application of the dual criminality rule. It is well-established that the analogue offence under UK law does not need to be on all fours with the offences alleged in the requesting state. Extradition practitioners will be aware that, in practice, the UK courts often adopt a purposive (some might say creative) approach to finding a UK offence which maps onto the conduct alleged by the requesting state.
But in Gypsy Nirvana, unlike in Marlow or Jones, it seems that there was no evidence that the defendant had said or done anything which could be construed as positive encouragement or advice as to how the seeds should be cultivated. The evidence in the US extradition request proved only that the defendant had sold the seeds. Even the widely and elaborately drafted inchoate liability provisions of the SCA (which postdate Marlow and Jones) could not stretch wide enough to capture the conduct of which the defendant was accused. These provisions could not be used to close the deliberate lacuna in UK law that the mere selling of cannabis seeds is lawful, unlike the position under US law.
Cannabis sativa L. is cultivated in most regions of the world. In 2013, the Brazilian Federal Police (BFP) reported 220 tons of marijuana seized and about 800,000 cannabis plants eradicated. Efforts to eradicate cannabis production may have contributed to the development of a new form of international drug trafficking in Brazil: the sending of cannabis seeds in small amounts to urban centers by logistics postal. This new and increasing panorama of cannabis trafficking in Brazil, encouraged the chemical study of cannabis seeds cultivated in greenhouses by gas-chromatography coupled with mass spectrometry (GC-MS) associated with exploratory and discriminant analysis. Fifty cannabis seeds of different varieties and brands, seized by the BFP were cultivated under predefined conditions for a period of 4.5 weeks, 5.5 weeks, 7.5 weeks, 10 weeks and 12 weeks. Aerial parts were analyzed and cannabigerol, cannabinol, cannabidiol, cannabichromene Δ9-tetrahydrocannabinol (THC) and other terpenoids were detected. The chromatographic chemical profiles of the samples were significantly different, probably due to different variety, light exposition and age. THC content increased with the age of the plant, however, for other cannabinoids, this correlation was not observed. The chromatograms were plotted in a matrix with 50 rows (samples) and 3886 columns (abundance in a retention time) and submitted to PCA, HCA and PLS-DA after pretreatment (normalization, first derivative and autoscale). The PCA and HCA showed age separation between samples however it was not possible to verify the separation by varieties and brands. The PLS-DA classification provides a satisfactory prediction of plant age.
Keywords: Cannabis sativa L.; Chemical profile; Chemometric analysis.
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