Force
Policy to Destroy Evidence (Cannabis Plants)
Since
cannabis was reclassified to Class C, we at IDMU have
noticed a worrying trend amongst the various police
forces of destroying all cannabis plants other than
the "sample"plants sent for forensic analysis,
stating that if was "force policy"to do so.
Forces which have recently quoted such a policy include
South Yorkshire, Merseyside, Greater Manchester and
Avon & Somerset.
We
are alarmed at this development, and the effect this
will have on persons charged with offences concerning
cannabis plants. We have 15 years experience of dealing
with cannabis production/cultivation cases and preparing
expert reports in this area. On most occasions have
been able to inspect the bulk of plants stored by the
police, normally in locked garages, and in at least
one force a purpose-built dry-room at force headquarters.
Our normal practice during an inspection of exhibits
has been to select a number of plants from the bulk
of plants, which are then stripped, separated into leaf
and flower material, and then weighed for an independent
determination of yield. This allows us to assess whether
the Crown's sample plants were indeed representative
of the crop. Obviously, if the bulk of plants has been
destroyed, it is impossible to verify or challenge the
Crown yield upon which the prosecution case is based.
In
a recent Merseyside case (seizure Jan, trial Nov 2005),
despite inadequate photographic evidence, the "sample"
plants sent for forensic examination appeared clearly
unrepresentative of the bulk of plants present, leading
to a gross overestimation of potential yield. In court,
defence counsel sought to have the case thrown out due
to destruction of the core evidence in the case, thus
preventing the defendant from having a fair trial. However
at Liverpool Crown Court HHJ Holloway ruled that the
dispute over yield was a matter for evidence, and refused
to stay proceedings using his judicial discretion. The
police had argued that preservation of the plants was
impossible due to health and safety considerations.
The
practice of destroying evidence (plants) seems to be
a recent innovation following the reclassification of
cannabis, a similar case arose recently in South Yorkshire
where the Crown were unable to rely on yield extrapolations
from a single sample plant.
We
recognise that in large scale cultivations it may be
impractical to preserve all of the plants in a viable
state. This is why we have made the compromise recommendations
below.
In
the interests of justice we would urge the following
action, if you are a solicitor acting for a defendant
arrested in circumstances which could lead to charges
of unlawful cultivation or production of cannabis, or
possession with intent:
1.
The police be served with a written notice requiring
the preservation of all plants, or sufficient plants
from the bulk to make a reasonable selection, until
trial proceedings have been concluded:
(a) It
is important that such a notice be served immediately
upon arrest, as plants may well be destroyed before
a defendant is charged following a lab report.
(b) Plants
should be cut off at the base of the stem above
the roots, and placed in paper sacks. Root systems
of sample plants may be preserved separately under
appropriate labels, remaining root samples may be
destroyed if necessary, however any plant labels
should be retained.
(c) Where
less than flowering 20 plants have been seized,
all should be preserved
(d) Where
more than 20x flowering plants have been seized,
to minimise any decomposition:
(i)
plants over 100cm tall should be placed in individual
paper sacks,
(ii)
plants 60-100cm tall can be placed 2 to a sack,
(iii)
plants 40-60cm tall can be placed 3 to a sack,
(iv)
plants 20-40cm tall can be stored 5 to a sack,
and
(v)
plants under 20cm tall can be stored 10 to a sack.
(e)
Paper sacks containing plants should be stored in
a well-ventilated area, allowing them to dry out naturally,
and must not be enclosed in plastic or other impermeable
materials.
2.
As defence solicitor you should be permitted to select
sacks containing up to a total of 10x flowering plants
from each significant cultivation batch to be preserved
for defence examination and yield determination. This
would be equivalent to a ¬Bÿ sample in drug testing
cases. The remaining sacks of plants may then be destroyed
if deemed necessary.
3. If the
defendant is not charged with production or possession
with intent, (e.g. cultivation and/or simple possession
only) and/or if the matter is dealt with early by
way of plea, and/or there is no dispute as to yield,
destruction of plants may be permitted at an earlier
stage in proceedings.
4.
In any event, destruction of plants or other evidence
should never be undertaken without leave of the court.
