Controlled Drugs and Psychoactive Substances

Question 1

Why are some drugs controlled?

Answer 1

because of their harmful effects on the human body, in particular the brain, and the fact that many people find the psychoactive effects of these substances enjoyable and therefore hard to resist.

Question 2

What act are psychoactive substances covered under?

Answer 2

Psychoactive Substances Act 2016

Question 3

Give some examples of Class A, B and C drugs.

Answer 3

Class A: Ecstasy, heroine, cocaine, crack cocaine, magic mushrooms, crystal meth, LSD.

Class B: Cannabis leaves, cannabis resin, spice, mephedrone, amphetamines and barbiturates.

Class C: Khat, tranquillisers, anabolic steroids and some painkillers.

Question 4

What is the definition of a psychoactive substance?

Answer 4

Any substance (other than controlled drugs, alcohol or tobacco) which is capable of producing a psychoactive effect in a person who consumes it (s 2(1)(a) of the Psychoactive Substances Act 2016).

Question 5

In recent years, many new psychoactive substances (NPS) (legal highs) have been manufactured.

Why may have this occurred and what are some examples?

Answer 5

Perhaps with a view to circumnavigating the controlled drugs legislation.

Spice (a synthetic cannabinoid), GBL (gamma butryolacetone) and GHB (gamma hydroxybutyrate).

Question 6

In recent years, many new psychoactive substances (legal highs) have been manufactured.

Is it an offence to carry an NPS?

Answer 6

No, except in a custodial institution (s 9 of the PSA 2016), but there are dedicated police powers to stop and search for substances.

Question 7

In order to commit the offence of unlawful possession, a person must:

Answer 7

(s 5(2) of the Misuse of Drugs Act 1971)

…unlawfully have a controlled drug in [his/her] possession.

Proof of the possession has two elements:

1. Control
2. Knowledge of the existence of the substance

Question 8

Control of a substance is indicated by the rights the person has over the substance, and generally amounts to ownership. It would include:

Answer 8

• Items found on a person (eg jacket pocket).
• Items found in a person’s property
• Items a person has ordered and paid for but has not received yet.

…knowledge of the existence of the substance is also required.

Question 9

Some exemptions permit possession of a controlled drug.

Where are these exemptions provided and who may have access to them?

Answer 9

Under the Misuse of Drugs Regulations 2001 and made by the Home Secretary Under s 7 of the Misuse of Drugs Act 1971.

Doctors, pharmaceutical trade, patients who have been prescribed them.

Also, police officers police support employees, customs officers and postal workers are allowed under Regulation 6 to possess drugs whilst acting in the course of their duties.

Question 10

What is the intervention model for the unlawful possession of cannabis and khat?

Answer 10

Helps provide a justifiable and proportionate response, and the intention is to send out the message that the substances are harmful and illegal.

There are three levels of intervention:

1. Cannabis or khat warning
2. PND
3. Arrest/ charge

Question 11

Under the intervention model, PNDs and warming can only be used if the person:

Answer 11

Is aged 18 years or over and has verifiable personal details.

Is not vulnerable.

Is competent enough to grasp meanings of officer’s questions and can reply to questions coherently.

Is not under the influence of alcohol or drugs at the time the warning of PND is issued.

Possesses an amount that is deemed for personal use.

Is not in possession of any other drug.

Admits the possession of cannabis or khat.

Question 12

What additional factors must be taken into account when considering the intervention model?

Answer 12

Aggravating factors

Location: is it in a hotspot? Is it around children?

Smoking in public?

Being a repeat offender?

Question 13

What can be used to check if a suspect has received a relevant warning or a PND?

Answer 13

The PNC

Relevant warning or a PND can only be used once UNLESS it was issued before January 2009 when the law changed.

Question 14

How to issue a warning for possession of cannabis and khat?

Answer 14

There is no formal group of words for a cannabis or khat warning, but the terms ‘cannabis warning’ or ‘khat warning’ should be used.

The officer should tell the suspect that the warning will not amount to a criminal record of conviction but will:

• Be recorded and added to local police databases for future reference.
• Produce a record of a detected crime for the purposes of statistics as a recordable crime; and
• Lead to the issuing of a PND or arrest if he/she is found in unlawful possession of cannabis or khat in the future.

Question 15

Possession of small amounts of cannabis or khat: practical aspects…

Answer 15

Establish whether there is any lawful excuse for possession.

Any evidence of a more serious offence such as intent to supply.

Drugs should be seized and secured.

Incident should be recorded as a PNB entry.

The recording requirements must also be satisfied, and stop and search forms will need to be completed.

Intelligences reports and crime reports can be completed later.

Question 16

Under what new legislation can cannabis based products be prescribed by doctors for medicinal use?

Answer 16

(SI 2018/1055 The Misuse Of Drugs (Amendments) (Cannabis and License Fees) (England, Wales and Scotland) (Regulations 2018).

Question 17

Preventing unlawful possession under s 5 of the Misuse of Drugs Act 1971 is defined as:

Answer 17

(a) knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of preventing another from committing or continuing to commit an offence in connection with that drug and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to destroy the drug or to deliver it into the custody of a person lawfully entitled to take custody of it; or
(b) that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of delivering it into the custody of a person lawfully entitled to take custody of it.

Question 18

Defences are available under s 28 of the Misuse of Drugs Act 1971.

What two main issues do these relate to?

Answer 18

Whether the suspect knew or believe the substance to be a controlled drug

Whether he/she was entitled to possess that particular drug (s 28(3)(b)(i) and (ii).

Question 19

Offences involving Class A, B or C drugs penalties?

Answer 19

Triable either way and the penalty is imprisonment and/or a fine.

A: Summary offence = 6 months, indictable offence = 7 years.

B: Summary offence = 3 months, indictable offence = 5 years.

C: Summary offence = 3 months, indictable offence = 2 years.

Unlawful possession of cannabis can also be dealt with by issuing a PND for £90.

Question 20

What is a Controlled Drug?

Answer 20

Drugs are “controlled” by the state and are categorised according to the harm that they do, both to individuals and to society as a whole. There are three classes of drugs under the Misuse of Drugs Act with scaled penalties on conviction:

Class A – e.g. ecstasy, heroin and cocaine; highest harm, up to 7 years imprisonment

Class B – e.g. amphetamine, cannabis leaves; moderate harm, up to 5 years imprisonment

Class C – e.g. Khat, valium; lower harm, up to 2 years imprisonment

Question 21

What are New or Novel Psychoactive Substances (NPS)?

Answer 21

Substances that produce similar psychoactive effects to controlled drugs and can be just as harmful as controlled drugs, with users often equating “legal” to “safe”, even though this is not true.

Not covered under the Misuse of Drugs Act. However, the introduction of the New Psychoactive Substances Act 2016 (NPS) has made the production, importation and supply of certain substances unlawful.

Whilst the act has no possession only offence, it does seek to tackle possession in a custodial institution

Question 22

All legislation relating to the unlawful possession and supply of controlled drugs comes from where?

Answer 22

the Misuse of Drugs Act 1971.

This act seeks to prevent the tremendous harm that drugs do to communities across Britain and it will become one of your most commonly-used pieces of legislation.

Question 23

The Offence of ‘Unlawful Possession’

The main offence is contained in s5 (2) of the Misuse of Drugs Act and is remarkably simple in its scope. It says that:

Answer 23

“It is an offence for a person to [unlawfully] have a controlled drug in his possession.”

The word unlawfully has been inserted because there are certain occasions where a person is legally able to possess controlled substances.

The three points to prove are:

• that the possession is not lawful
• that the substance is a controlled drug,
• that the suspect had the substance in their possession.

Question 24

How can the Offence of ‘Unlawful Possession’ be proven?

Answer 24

1. That the possession is not lawful
2. That the substance is a controlled drug,
   - Proof that the substance is a controlled drug will come from forensic examination, presumptive testing or the use of an expert witness.
3. That the suspect had the substance in their possession.
   - To establish possession, it must be evidenced that the accused had custody or control of the substance AND knowledge of its existence (not necessarily the nature of it).

The substance can be a very small amount, but it must be visible, tangible and measurable.

Question 25

Custody or Control discernment

Answer 25

A suspect does not have to have the drug ‘on him/her’ in order to be in control of it.
- It could be sufficient for drugs to be found in a suspect’s bedroom or vehicle to show that they had control over it.

Control can also be constructive, which means that more than one person can be in control of the same drugs. - Imagine raiding a property to find a group of people all smoking crack cocaine; all of them could be said to have some degree of control over the drugs.

Simply put, custody is something within arm’s reach, control is being able to control it, and constructive control is not hands on but organising or paying for it i.e. having a controlling interest.

Question 26

Does a suspect have to know the substance was of a particular type or even a controlled drug?

Answer 26

No - It does not have to be proven that he knew the substance was of a particular type or even a controlled drug.

If, for example, a suspect is stopped and found in possession of kitchen herbs (which he admits and knows he possesses), he still commits an offence if the substance turns out to be cannabis.

If a suspect is found delivering packages which he knows contains something, if that something turns out to be cocaine, he will commit the offence.

Question 27

Certain defences can be raised by those accused of being in possession of controlled drugs, outside of the lawful exemptions already mentioned.

They are found in s5(4) of the Misuse of Drugs Act which states that:

Answer 27

“the accused, knowing or suspecting [the substance] to be a controlled drug, takes possession of it for the purpose of preventing another from committing or continuing to commit an offence in connection with that drug and:

as soon as possible after taking possession, they take all such steps as are reasonably open to them to destroy the drug or deliver it into the custody of a person lawfully entitled to take custody of it.”

Question 28

Example of defence that can be raised by those accused of being in possession of controlled drugs…

Answer 28

A parent finding drugs in their child’s bedroom who immediately flushes them down the toilet, or takes them straight to a police station, will therefore be able to raise this defence.

However, if the same parent put the drugs in their bag intending to take them to the police station next week would not be able to raise this defence, as they did not take these steps as soon as possible.

….In short, if people are going to be in possession of drugs, they have a very short window of opportunity in which to act.

Question 29

Further defences glossed over by your handbook because, in practice, they are rarely used.

Answer 29

The defence found in s28(2) states that the accused would have no reason to know, suspect (or reason to suspect) some fact alleged by the prosecution; this is to prevent the offence being one of strict liability.

The other defence found in s28(3) states that the accused would have no belief, suspicion, nor reason to suspect that the substance was a controlled drug.

There is a further very rarely used defence under s.28(3) where the accused can state that he would have been entitled to possess the controlled drug, had the drug been what he thought it was.

An example of this might be a methadone user, with prescription, finding that his supply of methadone (a Class A drug) has in fact been swapped for GHB, a Class C drug.