Essential Legislation Flashcards
Penalty on persons found drunk
s 12 of the Licensing Act 1872
Every person found…
- Drunk in any highway or other public place, whether a building or not, or on any licensed premises.
- Drunk while in charge on any highway or other public place of any carriage, horse, cattle, or steam engine.
- Drunk when in possession of any loaded firearms.
…shall be guilty of an offence.
Penalty:
Summarily – 1 month imprisonment and/ or fine.
Drunk in charge of children
s 2 of the Licensing Act 1902
It is an offence for a person to be drunk ‘while having charge of a child under the age of 7 years in any highway, public place, or licensed premises’.
The suspect must be the only person with the child, or alternatively, everyone in a group with the child must be drunk.
Penalty:
Summarily – 1 month imprisonment and/ or fine.
Controlled drinking zones
Under what legislation can a local authority designate an area as a ‘controlled drinking zone’ to help control anti-social behaviour?
s 235 of the Local Government Act 1972
It is an offence to fail to comply with a request to surrender alcohol or to cease drinking.
Note the Home Office advice that ‘it is not appropriate to challenge an individual consuming alcohol where that individual is not causing a problem’ (Home Office, 2009b).
Triable summarily and the penalty is a fine, often imposed through a penalty notice.
Staff managing or working in places where alcohol is served have a legal responsibility to try to prevent drunkenness and disorder.
People with these responsibilities are listed in s__ of the Licensing Act 2003, and are referred to here as responsible staff. They include:
s 140(1) of the Licensing Act 2003
- The holder of a premises license
- The designated supervisor of a licensed premises
- Any person who works at the premises in a capacity which authorises him/her to prevent disorderly conduct.
- Any member or officer of a club (with a club premises certificate) who has the capacity to prevent disorderly behaviour; and
- The user of a premises with permitted temporary activity, at the permitted time.
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Penalty is a fine.
Obtaining alcohol for a person who is drunk
s 142(1) of the Licensing Act 2003
(1) A person commits an offence if, on relevant premises, he knowingly obtains or attempts to obtain alcohol for consumption on those premises by a person who is drunk.
Penalty is a fine.
Failure to leave licensed premises
143(1) of the Licensing Act 2003
(1) A person who is drunk or disorderly commits an offence if, without reasonable excuse—
(a) He fails to leave relevant premises when requested to do so by a constable or by a person to whom subsection (2) applies, or
(b) He enters or attempts to enter relevant premises after a constable or a person to whom subsection (2) applies has requested him not to enter.
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s 143(4) of the Licensing Act 2003
- Force can be used to encourage compliance.
Right of entry to investigate offences if there is reason to believe that an offence under the Licensing Act 2003 is being committed or about to be?
s 180(1) of the Licensing Act 2003.
Reasonable force can be used (s 180(2))
For premises (or any other place) with a club premises certificate, there is a similar power of entry (as s 180(1) of the Licensing Act 2003), if there is reasonable cause to believe that…
- An offence, relating to supplying a controlled drug has been committed, or is about to be, or is being committed at the moment (s 97 (1)(a))
- A breach of the peace may occur (s 97 (1)(b))
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Reasonable force may be exercised for this power (s 97(2)).
Alcohol cannot be legally sold to a person under the age of 18. It is an offence to:
s 146(1) of the Licensing Act 2003- sell alcohol to a person under 18 in any place.
s 147(1) of the Licensing Act 2003- knowingly allow the sale of alcohol on relevant premises to an individual aged under 18.
Penalty is a fine.
Alcohol cannot be legally sold to a person under the age of 18.
A further more serious offence is committed if…
s 147A of the Licensing Act 2003
On two or more occasions (within three consecutive months) alcohol is unlawfully sold on the same licensed premises to a young person under 18.
Penalty is a fine.
Arrest without warrant: constables
s 24 PACE 1984 (Code G)
(1) A constable may arrest without warrant –
- Anyone who is about to commit an offence
- Anyone who is in the act of committing an offence
- Anyone whom he has reasonable grounds for suspecting to be about to commit an offence
- Anyone whom he has reasonable grounds for suspecting to be committing an offence.
(2)
If a constable has reasonable grounds for suspecting an offence has been committed, he may arrest without warrant, anyone whom he has reasonable grounds to suspect of being guilty of it.
(3)
If an offence has been committed, a constable may arrest without a warrant –
• Anyone who is guilty of the offence
• Anyone whom he has reasonable grounds for suspecting to be guilty of it.
(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.
(5) The reasons are—
(a) Name
(b) Address
(c) To prevent the person in question—
(i) Causing physical injury
(ii) Suffering physical injury;
(iii) Causing loss of or damage to property;
(iv) Public indecency
(v) Causing obstruction
(d) Child/ vulnerable person safety
(e) Prompt and effective investigation
(f) Disappearance
Drunk and disorderly behaviour in a public place
s 91(1) of the Criminal Justice Act 1967
It is a summary offence for any drunken person to display ‘disorderly behaviour’ in any highway, public place, or licensed premises.
Penalty:
Summarily – 1 month imprisonment and/ or fine.
Confiscation of intoxicating liquor.
s1 The Confiscation of Alcohol (Young Persons) Act 1997
(1) Where a constable reasonably suspects that a person in a relevant place is in possession (can be nearby) of alcohol and that either:
i) he is under 18 or
ii) he intends that any of the alcohol should be consumed by a person under the age of 18 in that or any other relevant place or
iii) a person under the age of 18 who is, or has recently been, with him has recently consumed alcohol in that or any other relevant place
Then that person may be required to surrender anything in [his/her] possession which is reasonably believed to be alcohol or a container for such liquor.
Failure to surrender and refused consent to search provides the officer with the power to detain.
Penalty:
Summarily – 1 month imprisonment and/ or fine.
Offence of persistently possessing alcohol in a public place (under 18s)
s 30 of the Police and Crime Act 2009.
(1) A person under the age of 18 is guilty of an offence if, without reasonable excuse, the person is in possession of alcohol in any relevant place on 3 or more occasions within a period of 12 consecutive months.
(2) “Relevant place”, in relation to a person, means—
(a) Any public place, other than excluded premises, or
(b) Any place, other than a public place, to which the person has unlawfully gained access.
Penalty is a fine.
What is the definition of a psychoactive substance?
s 2(1)(a) of the Psychoactive Substances Act 2016
Any substance (other than controlled drugs, alcohol or tobacco) which is capable of producing a psychoactive effect in a person who consumes it.
Producing a psychoactive substance
s4 of the Psychoactive Substances Act 2016
(1) A person commits an offence if—
(a) The person intentionally produces a psychoactive substance,
(b) The person knows or suspects that the substance is a psychoactive substance, and
(c) The person—
(i) Intends to consume the psychoactive substance for its psychoactive effects, or
(ii) Knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by some other person for its psychoactive effects.
Supplying, or offering to supply, a psychoactive substance
s5 of the Psychoactive Substances Act 2016
(1) A person commits an offence if—
(a) The person intentionally supplies a substance to another person,
(b) The substance is a psychoactive substance,
(c) The person knows or suspects, or ought to know or suspect, that the substance is a psychoactive substance, and
(d) The person knows, or is reckless as to whether, the psychoactive substance is likely to be consumed by the person to whom it is supplied, or by some other person, for its psychoactive effects.
(2) A person (“P”) commits an offence if—
(a) P offers to supply a psychoactive substance to another person (“R”), and
(b) P knows or is reckless as to whether R, or some other person, would, if P supplied a substance to R in accordance with the offer, be likely to consume the substance for its psychoactive effects.
Possession of psychoactive substance with intent to supply
s7 of the Psychoactive Substances Act 2016
(1) A person commits an offence if—
(a) The person is in possession of a psychoactive substance,
(b) The person knows or suspects that the substance is a psychoactive substance, and
(c) The person intends to supply the psychoactive substance to another person for its consumption, whether by any person to whom it is supplied or by some other person, for its psychoactive effects.
Possession of a psychoactive substance in a custodial institution
s9 of the Psychoactive Substances Act 2016
(1) A person commits an offence if—
(a) The person is in possession of a psychoactive substance in a custodial institution,
(b) The person knows or suspects that the substance is a psychoactive substance, and
(c) The person intends to consume the psychoactive substance for its psychoactive effects.
Psychoactive Substances Legislation
s2: Definition of a psychoactive substance
s4: Producing a psychoactive substance
s5: Supplying, or offering to supply, a psychoactive substance
s7: Possession of psychoactive substance with intent to supply
s9: Possession of a psychoactive substance in a custodial institution
Possession of a controlled drug
(s 5(2) of the Misuse of Drugs Act 1971)
In order to commit the offence of unlawful possession, a person must unlawfully have a controlled drug in [his/her] possession.
Penalties:
- 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.
Certain defences can be raised by those accused of being in possession of controlled drugs….
s5(4) of the Misuse of Drugs Act which
(a) That, 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 and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to deliver it into the custody of such a person.
Supplying a Controlled Drug
s 4(3) of the Misuse of Drugs Act
It is an offence to unlawfully…
(a) to supply or offer to supply a controlled drug to another (supply can even just mean passing a joint)
(b) to be concerned in the supplying of such a drug to another; or
(c) to be concerned in making an offer to supply a controlled drug to another
Penalties:
- A: Summary offence = 6 months, indictable offence = Life imprisonment.
- B: Summary offence = 6 months, indictable offence = 14 years.
- C: Summary offence = 3 months, indictable offence = 14 years.
Possession of a controlled drug with intent to supply is an offence under what legislation?
s 5(3) of the Misuse of Drugs Act 1971
It is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of this Act (can be class C even if they thought it was Class A etc).
Penalties:
- A: Summary offence = 6 months, indictable offence = Life imprisonment.
- B: Summary offence = 6 months, indictable offence = 14 years.
- C: Summary offence = 3 months, indictable offence = 14 years.
Far more serious than the simple possession of illegal drugs is the supply and distribution of them, and it is predominantly these suppliers who are the target of police operations.
There are a number of offences relating to the supply of illegal drugs, including some useful ‘catch all’ offences. The main offences covered here are:
- Importation of controlled drug (s 3(1))
- Production of a controlled drug (s 4(2))
- Supplying a controlled drug (s 4(3))
- Possession with intent to supply (s 5(3))
- Cultivation of Cannabis (s 6)
Production of controlled drugs
s 4(2) of the Misuse of Drugs Act 1971
(a) It is an offence to produce a controlled drug in contravention of subsection (1)…or;
(b) to be concerned in the production of such a drug in contravention of that subsection by another (doesn’t count just letting people use your kitchen for example).
Penalties:
- A: Summary offence = 6 months, indictable offence = Life imprisonment.
- B: Summary offence = 6 months, indictable offence = 14 years.
- C: Summary offence = 3 months, indictable offence = 5 years.
Cultivation of Cannabis
s6 of the Misuse of Drugs Act 1971
(1) Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person to cultivate any plant of the Genus Cannabis.
Penalties:
- Indictment – 14 years and/ or a fine.
- Summary – 6 months and/ or a fine.
Occupier or manager of premises used for controlled drug offences legislation
s 8 of the Misuse of Drugs Act 1971.
Occupier doesn’t have to be tenant or owner, but has to have sufficient control over the premises that he/she could prevent drug related activities.
In practice, this is often taken to be someone who has the right to deny a person entry to the premises. There is no requirement for the ‘occupier’ to have any legal connection to the premises.
a) Producing or attempting to produce a controlled drug.
b) Supplying, attempting to supply or offering to supply a controlled drug to another.
c) Preparing opium for smoking.
d) Smoking cannabis, cannabis resin, or prepared opium.
There must be evidence for one of these to have occurred.
You will see that this leaves several gaping holes for offenders to slip through. There is nothing preventing the preparation and smoking of crack cocaine, nor even injecting heroin. Thankfully, the main purpose is to trap those who manage premises where drugs are produced or supplied
The legal import and export of controlled drugs requires a license and is covered under what legislation?
s 3(1) of the Misuse of Drugs Act 1971.
The Misuse of Drugs Act 1971 provides a number of specific enforcement powers…
s23 Misuse of Drugs Act 1971
(1) […] Power to enter the premises of a person carrying on business as a producer or supplier of any controlled drugs and to demand the production of, and to inspect, any books or documents relating to dealings in any such drugs.
(2) If a constable has reasonable grounds to suspect that any person is in unlawful possession of a controlled drug … the constable may—
(a) Search that person, and detain him for the purpose of searching him;
(b) Search any vehicle or vessel in which the constable suspects that the drug may be found, and for that purpose require the person in control of the vehicle or vessel to stop it;
(c) Seize and detain, for the purposes of proceedings under this Act, anything found in the course of the search which appears to the constable to be evidence of an offence under this Act.
(3) Reasonable grounds to believe controlled drugs on premises or documents pertaining to such, can execute warrant…
There is a general defence available under sXX of the Misuse of Drugs Act 1971 to a defendant charged with certain drug offences…
s28 Misuse of Drugs Act 1971
- It shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of a controlled drug.
s28(3)(a) Prevents defendants just using defence that they thought one drug was another type.
Applies to…
- Production of a controlled drug (s 4(2))
- Supplying a controlled drug (s 4(3))
- Possession of a controlled drug (s 5(2))
- Possession with intent to supply (s 5(3))
- Cultivation of Cannabis (s 6)
- Offences connected with Opium (s 9)
Under what new legislation can cannabis based products be prescribed by doctors for medicinal use?
(SI 2018/1055 The Misuse Of Drugs (Amendments) (Cannabis and License Fees) Regulations 2018.
Under what legislation is it an offence to knowingly acquire possession or be concerned in transporting, storing or concealing drugs, or be concerned in any fraudulent evasion or attempted evasion of restriction?
s 170 of the Customs and Excise Management Act 1979
Penalties:
- A: Summary offence = 6 months, indictable offence = Life imprisonment.
- B: Summary offence = 6 months, indictable offence = 14 years.
- C: Summary offence = 3 months, indictable offence = 5 years.
