Neutral Citation Number: [2008] EWCA Crim 2082

No: 200802794 A3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Wednesday, 3rd September 2008

B e f o r e:

LORD JUSTICE LAWS

MR JUSTICE JACK

SIR CHARLES GRAY
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R E G I N A

v

JOSEPH JOHN LUNN

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Mr D Small appeared on behalf of the Appellant
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J U D G M E N T
1.	MR JUSTICE JACK:  This is an appeal against sentence by leave of the single judge.  The appellant, Joseph Lunn, is aged 48 and was the manager of the Havelock Tavern Public House in Saltley.  On 17th March 2008 in the Crown Court at Birmingham he was convicted, following a trial before His Honour Judge Maxwell, of permitting the public house to be used for smoking cannabis, and was sentenced to imprisonment for 30 months.  He received a concurrent sentence of 3 months for the possession of cannabis. 
2.	On 27th April 2007 as part of an operation to target the smoking of cannabis in public houses, the police went to the Havelock Tavern.  They parked 50 yards away and as they approached the public house they could smell cannabis.  They entered.  The smell of cannabis in the pool room was particularly strong.  The appellant was arrested and a search found a small quantity of cannabis in his bedroom, hence the count for possession of cannabis.  When interviewed, the appellant said that shortly before the police arrived he had thrown out a gang of Asian men following argument.
3.	The appellant had previously appeared before the courts on three occasions between 1977 and 2005, including in 1997 a sentence of 4 years for robbery.  His previous convictions are not, however, relevant to the appropriate sentence in the present case.
4.	The judge set out the basis on which he was passing sentence as follows: 
"You were the manager of a licensed house, a public house, and your responsibilities in running a public house are very much higher than the responsibilities of an ordinary member of the public to prevent the smoking of cannabis.  You have a public duty, because you were the manager of a public house.  If a private individual allows his own home to be used for the smoking of cannabis, that is a serious matter, but if the manager of a public house allows the public house to be used for the smoking of cannabis, that is much more serious.  I look at the circumstances.  
On 27th April 2007, police officers came to the road where your public house was situated and the evidence is quite clear, that the smell of cannabis from your public house was so strong that it was immediately apparent to the officers when they parked their car fifty yards away.  As the police officers walked the fifty yards from their car to your pub, the smell got stronger and stronger.  When they went into the pub, the smell of cannabis in the pool room was very strong indeed and there was evidence, immediate evidence, that cannabis had been supplied in the pub and smoked in the pub.  
When the police searched the premises, they found evidence relating to the pool room, they found some cannabis in your bedroom, a small quantity in your bedroom, and they also found a substantial quantity in the private room at the back of the pub in the staff living room.  The police officers were asked [in evidence] if it was possible that this cannabis had been smoked by a group of people whom you had just evicted and the police officers replied that that made no sense at all, such was the intensity of the smell of the cannabis that it could only mean that people had been smoking there all day long.  That degree, that intensity of cannabis smoke could not have been caused by a group of people who had been smoking for a short time . . .  
I cannot accept the proposition that you had taken serious steps to prevent cannabis smoking, which had been going on for many hours.  
It is argued that you had taken active steps to discourage cannabis smoking, that you had attended a local forum with the police.  The police confirmed that you did attend one meeting, but that you did not do anything significant to participate in that meeting.  It is argued that there were posters displayed.  Posters are no use unless you, the manager, take steps to enforce the message that drug smoking is not permissible on licensed premises, or at all . . .  
The trial started on 13th March, and a fortnight before the trial commenced, those officers went to your public house for a reason that had nothing to do with drugs.  They went to the public house in response to a report that there had been an assault . . . but when they got to the pub at 7 minutes past 11 they found that the door was locked.  There were people in the pub and they knocked on the door.  Someone looked out and shouted 'It's the police'. The curtains opened and then closed again and the police could see people running around inside the pub and it took several minutes before the doors were opened.  The police repeatedly knocked on the door and shouted 'Open the doors', but the doors remained closed until you yourself opened them and when the police went into the pub, there was a strong smell of cannabis and there was evidence of cannabis smoking.  There were Rizla papers, there were broken down cigarettes.  It was obvious that there had been smoking going on, but the five minutes or so that the police had been kept waiting was sufficient to dispose of most of the evidence. 
There were only two police officers at that time and it was impossible, in the circumstances, for them to carry out any arrests or carry out any proper investigation and you were never charged with the matter on 1st March, but it was adduced in evidence in the trial and it demonstrated your attitude towards cannabis smoking in the pub, even though you were on bail and were due to face a trial in a fortnight, you were continuing to allow your pub to be used for the smoking of cannabis.  
Now I say at once, you are not to be punished for what happened on 1st March, because you have never been charged with that.  The significance of the 1st March evidence is solely the light that it throws on what had happened on the previous occasion, 27th April 2007.  I am sentencing you for that day and that day alone, but I look at what happened on that day in the light of what happened subsequently and I am forced to the conclusion that you . . . as a manager were perfectly prepared to allow your pub to be used for the purpose of smoking cannabis . . . " 
5.	The section in question here is section 8 of the Misuse of Drugs Act 1987 which carries a maximum of 14 years' imprisonment.  We agree with the judge that where the manager of a public house permits it to be used for the smoking of cannabis, that will normally be substantially more serious than permitting a private house to be so used.  One important reason why it is more serious is that it involves drug taking effectively in public, in an environment which makes it seem an acceptable activity so that others may be encouraged to share in it and take it up.  Further, and equally important, the use of drugs is frequently associated with dealing in drugs.  Conversely, although the Act makes no distinction in maximum penalty, permitting the smoking of cannabis will often be less serious than offences under section 8 relating to Class A drugs.
6.	We have not been referred to any case in this field involving public houses and it does not appear that any such case has been reported.  Twelve cases relating to the use of premises are collected in Current Sentencing Practice at section B11‑1.2G.  They relate to both cannabis and Class A drugs.  As with most offences, a variety of circumstances give rise to a variety of sentences.  In Morrison [1996] 1 Cr.App.R(S) 23, the appellant allowed young people to use his home to smoke cannabis.  There was no evidence that he actively encouraged them to do so.  His appeal against a sentence of 12 months following a plea of guilty was dismissed.  In Downing [2003] 1 Cr.App.R(S) 33 the appellant had both permitted her house to be used by her son to supply cannabis and had supplied cannabis herself.  Her appeal against a sentence of 18 months following a plea of guilty was dismissed.  These sentences may be seen as equivalent to 18 months and 27 months following trial.  The sentence here was 30 months.  We do not, however, think that anything other than the most general comparison is appropriate.
7.	It has been submitted to us today by Mr Small on behalf of the appellant that the sentence was manifestly excessive and that the judge failed to take account of the fact emphasised in the Pre‑Sentence Report that the appellant was no longer the manager of the Havelock Tavern and so there was little chance of further offending.  We do not think that this can carry very much weight in the circumstances with which we are concerned.  The judge further considered that the author of the report had not fully understood the circumstances of the offence.  It was suggested to us by Mr Small that in those circumstances the judge should have asked for a further report.  We do not agree.  The judge had the views of the author and it was for him to take account of them against the background of the facts as they had been found by the judge rather than by the author of the report.
8.	Mr Small has further submitted that the judge did not take sufficient account of the evidence that he had heard from the bar staff at the public house.  They had been instructed that, firstly, the use of drugs should be reported to the appellant and that those persons should then be evicted.  The judge in his very full sentencing remarks set out his reasons for concluding that the appellant permitted the smoking of cannabis in his public house and did not take proper steps to prevent it.
9.	We have carefully considered the facts of this case as found by the judge following the trial over which he had presided.  We do not think that in the circumstances the sentence was excessive and the appeal must be dismissed.