Misuse of Drugs

Question 1

Classification

Answer 1

Drugs that are subject to the provisions of the Misuse of Drugs Act 1971 are listed in parts I, II and III of sch. 2 to the Act.

The divisions are made largely on the basis of each substance’s potential effects on both the person taking it and society in general. The list of controlled drugs is large, and for full details reference should be made to sch. 2 to the Misuse of Drugs Act 1971. Examples of some of the more commonly encountered drugs include:

• Class A—this class includes heroin (diamorphine), methadone, cocaine, LSD, ‘Ecstasy’ (MDMA) and ‘crystal meth’ (methylamphetamine). It also includes fungus (of any kind) which contains psilocin (such as ‘magic mushrooms’).
• Class B—this class includes cannabis, cannabis resin, codeine, ketamine and ritalin (methylphenidate).
• Class C—this class includes valium (diazepam), khat (the leaves, stems or shoots of the plant of the species Catha edulis) and GHB (gamma hydroxybutyrate).

If the charge alleges possession of one particular drug, then that drug must be identified.

Note that although a substance may appear in sch. 2 to the Act, there may be restrictions on the occasions where possession is treated as an offence (see para. 2.2.3.7).

It is not necessary, when prosecuting an offence, to distinguish between the various chemical forms in which a drug exists (i.e. as a salt, ester or other form) (R v Greensmith [1983] 1 WLR 1124).

A defendant’s admission may, in some cases, be relied upon to prove his/her knowledge as to what a particular substance is (R v Chatwood [1980] 1 WLR 874).

Question 2

Temporary Class Drug Orders

Answer 2

The Home Secretary has the power, under the Misuse of Drugs Act 1971, to make any drug subject to temporary control.

Temporary class drug orders can be made if the following two conditions are met:

(1) the drug is not already controlled under the Act as a Class A, B or C drug;
(2) the ACMD (Advisory Council on the Misuse of Drugs) has been consulted and determined that the order should be made, or the Home Secretary has received a recommendation p. 356from the Advisory Council that the order should be made, on the basis that it appears to the Home Secretary that:
	(a) the drug is being, or is likely to be, misused; and
	(b) the misuse is having, or is capable of having, harmful effects.

The order will come into immediate effect and will last for up to 12 months, subject to Parliament agreeing to it within 40 sitting days of the order being made. The order enables the government to act to protect the public against harmful new psychoactive substances while expert advice is being prepared.

Such a drug will be referred to as a ‘temporary class drug’ and will be a ‘controlled drug’ for the purposes of the Misuse of Drugs Act 1971, and other legislation such as the Proceeds of Crime Act 2002, unless otherwise stated. With the exception of the possession offence, all the offences under the Misuse of Drugs Act will apply including possession in connection with an offence or prohibition, under ss. 3, 4 and 5(3) of the Act, i.e. possession with intent to supply.

Offences committed under the Act in relation to a temporary class drug are subject to the following maximum penalties:

• 14 years’ imprisonment and an unlimited fine on indictment; and
• six months’ imprisonment and a £5,000 fine on summary conviction.

Simple possession of a temporary class drug is not an offence under the 1971 Act; however, law enforcement officers have been given the following powers to enable them to take action to prevent possible harm to the individual:

• Search and detain a person (or vehicle etc.) where there are reasonable grounds to suspect that the person is in possession of a temporary class drug.
• Seize, detain and dispose of a suspected temporary class drug.
• Arrest or charge a person who commits the offence of intentionally obstructing an enforcement officer in the exercise of their powers.

Question 3

Cannabis

Answer 3

The Misuse of Drugs Act 1971, s. 37 states:

‘cannabis’ (except in the expression ‘cannabis resin’) means any plant of the genus Cannabis or any part of any such plant (by whatever name designated) except that it does not include cannabis resin or any of the following products after separation from the rest of the plant, namely—
(a) mature stalk of any such plant,
(b) fibre produced from mature stalk of any such plant, and
© seed of any such plant,
	‘cannabis resin’ means the separated resin, whether crude or purified, obtained from any plant of the genus Cannabis.

Keynote

Cannabis is a Class B drug. Therefore cannabis, cannabis resin, cannabis oil, cannabinol and its derivatives, any preparations or other product containing these substances and any substance which is an ester or ether either of cannabinol or of a cannabinol derivative are also Class B drugs. As cannabis and cannabis resin are both in the same class for the purposes of the 1971 Act, there would be no duplicity if a person is charged with possessing either one or the other in the same charge (R v Best (1980) 70 Cr App R 21).

Question 4

Possession

Answer 4

‘Possession’ is a neutral concept, not implying any kind of fault, blame or guilt. This is the key feature to recognise before considering specific offences under any legislation. There p. 357↵are two elements to possession; the physical element and the mental element (R v Lambert [2002] 2 AC 545).

Question 5

Custody or Control

Answer 5

The physical element involves proof that the thing is in the custody of the defendant or subject to his/her control. For example, if X has a wrap of cocaine in his jacket pocket, X has control of the wrap of cocaine (although mere custody does not mean that X is in ‘possession’ at this stage).

This approach is enlarged by s. 37(3) of the Misuse of Drugs Act 1971 which states that: ‘For the purposes of this Act the things which a person has in his possession shall be taken to include anything subject to his control which is in the custody of another’.

Example

X buys a controlled drug via the internet, directing that it be sent by post to his home address. X is in possession of that drug from the time it arrives through his letterbox (R v Peaston (1979) 69 Cr App R 203).

Question 6

Knowledge of Possession

Answer 6

Knowledge of Possession
The second element involves that the defendant knows that the thing in question is under his/her control. He/she need not know what its nature is, but as long as he/she knows that the thing, whatever it is, is under his/her control, it is in his/her possession.

Example

X and Y are walking along a street. X is going through his pockets looking for his wallet and, as he is searching for the wallet, he hands Y several tablets of Ecstasy and asks him to hold onto them while he continues searching. Y has no idea that the tablets he takes hold of are a controlled drug.

• Y has control of the Ecstasy tablets (they are in his hand);
• Y has knowledge of the presence of the Ecstasy tablets in his hand;
• Therefore Y has possession of the Ecstasy tablets.

Nobody is suggesting, at this stage, that Y is guilty of an offence. Of course, Y could rightly be arrested on suspicion of possessing a controlled drug but arresting on suspicion that a person has committed an offence and proving guilt in relation to it are two different things. Indeed, Y’s lack of knowledge about what the tablets are may afford him a defence (see para. 2.2.9). But the fact remains that ignorance of, or mistake as to the quality of, the thing in question does not prevent the accused being in possession of it.

What if the thing is inside a container, e.g. a box, a bag or a cigarette packet, and the person claims not to have known the thing was inside the container? In such cases, the common law makes the same requirements; you need to show that the person had custody of the container together with a knowledge that it (the container) contained something.

Example

X is given a packet of cigarettes by Y. X believes the packet contains cigarettes only. The packet does contain several cigarettes but also contains a wrap of cocaine. X does not know about the wrap of cocaine and puts the pack of cigarettes into his pocket.

• X has custody of the pack of cigarettes (they are in his pocket);
• X has knowledge of the presence of the pack of cigarettes (X put them there);
• X knows that the pack of cigarettes contains something;
• therefore X has possession of the wrap of cocaine.

Nobody is suggesting X is guilty of an offence but he is in ‘possession’ of the wrap of cocaine.

In R v Forsyth [2001] EWCA Crim 2926, the defendant argued that there was a distinction between a person carrying something in a container and a person carrying something inside something else in a container. In that particular case, the defendant was found in possession of a box which contained a safe; inside the safe was a significant quantity of a controlled drug. The defendant argued that this type of possession should be differentiated from the situation where someone simply had possession of a box with drugs in it. The Court of Appeal ruled that there was no difference and the issues of proof were the same.

A person does not possess something of which he/she is completely unaware as there would be no knowledge of possession. If a drug is put into someone’s pocket without his/her knowledge, he/she is not in possession of it (Warner v Metropolitan Police Commissioner [1969] 2 AC 256).

Question 7

Joint Possession

Answer 7

To show that two or more persons are in possession of a controlled drug requires more than a mere ability to control it (R v Kousar [2009] EWCA Crim 139). Mere knowledge of the presence of a drug in the hands of a confederate is not enough; joint possession must be established (R v Searle [1971] Crim LR 592). In Searle, it was stated that this could be established by asking the question ‘do the drugs form part of a common pool from which all had the right to draw?’ In R v Strong (1989) The Times, 26 January 1990, the prosecution put the case on the basis that there was joint possession; that is, each of the co-accused had control of one or more of the packages of cannabis. The Court of Appeal followed Searle, and said that what was being looked for was whether each person had the right to say what should be done with the cannabis. Mere presence in the same vehicle as the drugs, and knowing they were there, was not sufficient.

Further issues that can arise from this view of ‘possession’ were highlighted in Adams v DPP [2002] EWHC 438 (Admin), where a small quantity of controlled drugs were found in the defendant’s home during the execution of a search warrant. There was no proof that the drugs were owned by the defendant or that she was specifically aware of their presence but she did know that her home was used by various people who were highly likely to bring controlled drugs into it. She was convicted of possession. In hearing her appeal, the Administrative Court held that where knowledge of possession of drugs was limited to the fact that a visitor had brought drugs into the defendant’s home intending to take them, that was not sufficient evidence from which it was appropriate to infer that she had control over the drugs.
The court also held that giving consent (explicitly or impliedly) for the use of a controlled drug did not of itself constitute possession. Similarly, an inference that the defendant knew whose drugs had been found in her home did not amount to evidence of control over the drug itself even though she may well have been able to exercise control over what actually took place in her home.

Question 8

Points to Prove for ‘Possession’

Answer 8

Once ‘possession’ has been proved, it is then necessary to prove that what the defendant possesses is, in fact, a controlled drug. If this is established, then the defendant has a case to answer in relation to the offence of possession of a controlled drug.

Example

X is subject to a stop and search procedure under s. 23 of the Misuse of Drugs Act 1971 (see para. 2.2.17.1). During the search, several packets containing cannabis resin are found in X’s coat pocket.

In order to prove ‘possession’ of the cannabis for the purpose of the possession of a controlled drug offence, you must show:

• that X possessed the cannabis (X has custody/control of it and he knows it is in his possession); and
• that the contents of the packets are a controlled drug.

Question 9

Quality

Answer 9

In the above example, you would not have to show that X knew what the resin was. That is, you do not need to show that X knew the quality of what he possessed to prove that X ‘possessed’ it.

If the defendant admits to knowing that the cannabis resin was there but thought it was chocolate, he is in possession of it (R v Marriott [1971] 1 WLR 187).

Therefore, if a defendant had a packet of cigarettes with him and admitted to knowing that he had them, he would be in possession of a controlled drug if one cigarette was shown to have contained cannabis. The fact that the defendant thought they contained tobacco would be irrelevant to the ‘possession’ concept (R v Searle [1971] Crim LR 592) (although he may have a defence under s. 28: see para. 2.2.9).

Question 10

Quantity

Answer 10

The quantity of a controlled drug, however, may be so small that the defendant could not possibly have known about it; therefore it could not be ‘possessed’.

The House of Lords suggested that if something is ‘visible, tangible and measurable’ that may be sufficient (R v Boyesen [1982] AC 768). If the amount recovered is too small to support a charge of possession, it might be used to prove earlier possession of the drug (R v Graham [1970] 1 WLR 113 and Hambleton v Callinan [1968] 2 QB 427 where traces of a controlled drug in a urine sample were held to be possible evidence of earlier possession of that drug).

Quantity is not only relevant to the fact of possession, it is also relevant to the intention of the person in whose possession the drug is found. Larger quantities (particularly if they are also divided into smaller amounts) may indicate an intention to supply and may be proof of that intention in some circumstances.

Question 11

Possession of a Controlled Drug

Answer 11

Where the controlled drug involved is a fungus containing psilocin (a Class A drug) or an ester of psilocin (commonly known as magic mushrooms), possession will not be unlawful in certain circumstances. In summary, those circumstances are generally where the fungus is growing uncultivated and it:

• is picked by a person already in lawful possession of it (e.g. the landowner on whose land the mushrooms are growing) for the purpose of delivering it (as soon as is reasonably practicable) into the custody of a person lawfully entitled to take custody of it and it remains in that person’s possession for (and in accordance with) that purpose; or
• it is picked by anyone either for the purpose of delivering it (as soon as reasonably practicable) into the custody of a person lawfully entitled to take custody of it or destroying it (as soon as is reasonably practicable) and it is held for that purpose.

Possession of cannabis or khat can be dealt with under the Penalty Notice for Disorder (PND) Scheme. PNDs cannot be issued for any other drug-related offences other than possession of cannabis or cannabis derivatives. PNDs may be issued to any adult found in possession of cannabis for personal use; they are not appropriate for offenders under the age of 18.

Possession of a ‘temporary class drug’ (see para. 2.2.2.1) is not an offence under this section (s. 5(2A)).

Question 12

Possession of Controlled Drug—Misuse of Drugs Act 1971, s. 5

Answer 12

• Triable either way
• Class A (seven years’ imprisonment and/or a fine on indictment; six months’ imprisonment and/or prescribed sum summarily)
• Class B (five years’ imprisonment and/or a fine on indictment; three months’ imprisonment and/or a fine summarily)
• Class C (two years’ imprisonment and/or a fine on indictment; three months’ imprisonment and/or a fine summarily)
• See Keynote for possession of cannabis or cannabis resin

The Misuse of Drugs Act 1971, s. 5 states:

(2) Subject to section 28 of this Act and to subsection (4) below, it is an offence for a person to have a controlled drug in his possession in contravention of subsection (1) . . .

Question 13

Section 5—The Defence to Unlawful Possession

Answer 13

Section 5 provides a defence to an offence of unlawful possession:

(4) In any proceedings for an offence under subsection (2) above in which it is proved that the accused had a controlled drug in his possession, it shall be a defence for him to prove—
	(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.

Question 14

Defence under s. 5(4)(a)

Answer 14

The purpose in taking possession of the controlled drug under s. 5(4)(a) must be to prevent another from committing (in the future) or continuing to commit an offence in connection with that drug.

This situation might arise where a parent finds a child in possession of something which appears to be a controlled drug. Provided that that person takes all reasonable steps to destroy the drug or to take it to someone lawfully entitled to possess it (like a police officer), as soon as possible after taking possession of it, he/she would be able to use the defence under s. 5(4)(a).

When the accused buried drugs (cannabis), it was not sufficient to satisfy the defence under s. 5(4)(a) that the forces of nature might or would destroy the drug eventually: rather, it was for the accused to show that he took all such reasonable steps as were reasonably open to him to destroy them and the acts of destruction must be his (R v Murphy [2002] EWCA Crim 1587).

Question 15

Defence under s. 5(4)(b)

Answer 15

The second situation (under s. 5(4)(b)) may arise where a person finds what he/she believes to be a controlled drug and he/she takes possession of it solely for the purpose of delivering it to a person lawfully entitled to take custody of it. The defendant must prove that this was his/her intention at the time of taking possession (R v Dempsey (1986) 82 Cr App R 291).

Section 5(4) will not provide a defence to any other offence connected with the controlled drug (e.g. supplying or offering to supply).

Duress of circumstances is not a defence to this, or any other, offence under the Misuse of Drugs Act 1971 (see para. 1.4.4).

Question 16

Supplying

Answer 16

In R v Maginnis [1987] AC 303, the House of Lords held that ‘supply’ involves more than a mere transfer of physical control of the item from one person to another but includes a further concept; namely, that of ‘enabling the recipient to apply the thing handed over to purposes for which he desires or has a duty to apply it’. In other words, the person to whom the drug is given must derive some benefit from being given the drug.

Question 17

Supplying Explained

Answer 17

So the key to working out if there has been a ‘supply’ is to ask ‘Does being given the drug benefit the person to whom the drug has been given?’ If the answer is ‘yes’, then the person giving the drug is ‘supplying’ it.

In R v Dempsey (1986) 82 Cr App R 291, a registered drug addict (A) was in lawful possession of a drug. A asked his partner (B) to hold on to some of that drug while he went to administer the remainder of it to himself in a gents’ toilet. Both A and B were arrested, A being subsequently charged with ‘supplying’ B with the drug.

There is no ‘supply’ from A to B as when A gives the drug to B, B does not benefit from the action; B is simply holding on to the drug (although, of course, B would be in unlawful possession of the drug at that stage). If A had given the drug to B for B to use, there would be a ‘supply’ by A to B as B is benefiting from the action; B gets to use the drug. If B intends to give back the drug to A, then B would commit the offence of possession with intent to supply.

In R v Maginnis [1987] AC 303, a drug trafficker (A) temporarily left drugs with (B); B expected A to pick up the drugs the following day and was charged and convicted of possession with intent to supply. The same approach taken with Dempsey applies. In Maginnis, when A gives the drugs to B, B does not benefit from it and there is no ‘supply’ from A to B; if B returns the drugs to A, there is a ‘supply’ from B to A as A benefits from being given the drug (to sell or use). As B intends to return the drug to A, B is in possession with intent to supply.

If the drug trafficker in Maginnis had given the custodian of the drug £50 as a reward for holding the drug, then there would have been a ‘supply’ from A to B as B would benefit from holding the drug (he has been paid £50, benefiting financially from being given the drug).

The issue has been further explored in a case involving a person who claimed that he had been coerced into holding controlled drugs for unnamed dealers. When found in possession of the drugs, the defendant claimed the defence of duress (as to which, see chapter 1.4) and said that he had only been an ‘involuntary custodian’ of them, intending to return them at a later date. The Court of Appeal decided that it was irrelevant whether a person was a voluntary or involuntary custodian of the drugs and that an intention to return them to their depositor amounted to an ‘intention to supply’ (R v Panton [2001] EWCA Crim 611).

Dividing up controlled drugs which have been jointly purchased and then handing them out so that persons may use the drug will amount to ‘supplying’ (R v Buckley (1979) 69 Cr App R 371).
If a police informer provides a controlled drug to another in order that the other be arrested, there will still be a ‘supplying’ of the drug (R v X [1994] Crim LR 827).

Question 18

Injecting Others

Answer 18

Injecting another with that person’s own controlled drug has been held not to amount to ‘supplying’ in a case where the defendant assisted in pushing down the plunger of a syringe that the other person was already using (R v Harris [1968] 1 WLR 769). It may amount to an offence of ‘poisoning’ under s. 23 of the Offences Against the Person Act 1861. The problem with charging the supplier of drugs for self-injection by someone who then dies as a result lies in the issues of causation. The general view is that the supplier is unlikely to be held liable for causing death in such a case (R v Dias [2001] EWCA Crim 2986). Where the defendant actually carries out the injection, liability for causing the death of another in this way can be made out even if the drug injected is not a controlled drug (R v Andrews [2002] EWCA Crim 3021, involving an injection of insulin with consent).

Question 19

Supplying Controlled Drug—Misuse of Drugs Act 1971, s. 4(3)

Answer 19

• Triable either way
• Class A (life imprisonment and/or a fine on indictment; six months’ imprisonment and/or prescribed sum summarily)
• Class B (14 years’ imprisonment and/or a fine on indictment; six months’ imprisonment and/or prescribed sum summarily)
• Class C (14 years’ imprisonment and/or a fine on indictment; three months’ imprisonment and/or a fine summarily)

The Misuse of Drugs Act 1971, s. 4 states:
(3) Subject to section 28 of this Act, it is an offence for a person—
(a) to supply or offer to supply a controlled drug to another in contravention of subsection (1) above; or
(b) to be concerned in the supplying of such a drug to another in contravention of that subsection; or
(c) to be concerned in the making to another in contravention of that subsection of an offer to supply such a drug.

Question 20

The three ingredients of this offence were set out in R v Hughes (1985) 81 Cr App R 344:

Answer 20

(a) the supply of a drug to another, or as the case may be, the making of an offer to supply the drug to another in contravention of s. 4(1) of the Misuse of Drugs Act 1971;
(b) participation by the accused in an enterprise involving such supply or, as the case may be, such an offer to supply; and
(c) knowledge by the accused of the nature of the enterprise, i.e. that it involved supply of a drug or, as the case may be, offering to supply a drug.

Proof of actual supply is a prerequisite for an offence charged under s. 4(3)(b).

‘Supplying’ includes distributing (s. 37(1)).

Question 21

Offering to Supply

Answer 21

An offer may be by words or conduct. If by words, it must be ascertained whether an offer to supply a controlled drug was made. If words are used, the defence under s. 28 (see para. 2.2.9) does not appear to apply (R v Mitchell [1992] Crim LR 723).

Whether the accused had a controlled drug in his/her possession, had access to controlled drugs or whether the substance in his/her possession was a controlled drug at all is immaterial (R v Goodward [1992] Crim LR 588). The offence is committed whether or not the offer is genuine and once an offer is made the offence is complete; it cannot be withdrawn. If the offer is made to an undercover police officer, the offence is still committed and the defendant cannot claim that such an offer was not a ‘real’ offer (R v Kray [1998] EWCA Crim 3211).

If the object of a conspiracy (see chapter 1.3) is to supply a controlled drug to a co-conspirator, any subsequent charge must make that clear; stating that the defendants conspired to supply the drug to ‘another’ implies that the supply was to be made to someone other than any of the conspirators (R v Jackson [2000] 1 Cr App R 97).

Question 22

Specific Situations

Answer 22

Section 4A of the Misuse of Drugs Act 1971 requires courts to treat certain conditions as ‘aggravating’ factors when considering the seriousness of the offence under s. 4(3) if committed by a person aged 18 or over.

The conditions are either:

(1) that the offence was committed on or in the vicinity of school premises at a relevant time. ‘Vicinity’ is not defined and will be left to each court relying on its local knowledge. Other buildings and premises (e.g. cafes and shopping centres) can fall within this description and courts may decide that a route used to get to or from a school or a place where schoolchildren gather (even if trespassing) may be in the ‘vicinity’. School premises are land used for the purposes of a school but excluding any land occupied solely as a dwelling by a person employed at the school (s. 4A(8)). A ‘relevant time’ is any time when the school premises are in use by people under the age of 18 (and one hour before the start/after the end of any such time) (s. 4A(5)); or
(2) that in connection with the commission of the offence, the offender used a ‘courier’ who, at the time the offence was committed, was under the age of 18. A person uses a courier if he/she causes or permits another person (the courier):
	(a) to deliver a controlled drug to a third person, or
	(b) to deliver a ‘drug related consideration’ (basically any money, goods etc. obtained or intended to be used in connection with the supply of a controlled drug) to him/herself or a third person (s. 4A(6) and (7)).

Question 23

Possession with Intent to Supply—Misuse of Drugs Act 1971, s. 5(3)

Answer 23

• Triable either way
• Class A (life imprisonment and/or a fine on indictment; six months’ imprisonment and/or a prescribed sum summarily)
• Class B (14 years’ imprisonment and/or a fine on indictment; six months’ imprisonment and/or prescribed sum summarily)
• Class C (14 years’ imprisonment and/or a fine on indictment; three months’ imprisonment and/or a fine summarily)

The Misuse of Drugs Act 1971, s. 5 states:

(3) Subject to section 28 of this Act, 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.p. 364

Question 24

Possession with Intent to Supply

Answer 24

This is an offence that brings the concepts of ‘possession’ and ‘supply’ together.

The lawfulness or otherwise of the possession is irrelevant; what matters is the lawfulness of the intended supply. If a police officer is in lawful possession of a controlled drug but intends to supply it unlawfully to another, the offence is committed.

You must show that the intention was that the person in possession of the controlled drug (rather than some third party) would supply it at some point in the future (R v Greenfield (1984) 78 Cr App R 179).

If more than one person has possession of the relevant controlled drug, you must show an individual intention to supply it by each person charged; it is not enough to show a joint venture whereby one or more parties simply knew of another’s intent (R v Downes [1984] Crim LR 552). Given the decision of the Court of Appeal in R v Kray [1998] EWCA Crim 3211, possession with intent to supply a controlled drug to a person who is in fact an undercover police officer would appear to amount to an offence under this section.

All that is necessary in proving the offence under s. 5(3) is to show that the defendant had a controlled drug in his/her possession and intended to supply that substance to another. If the substance in the defendant’s possession is a Class A drug and he/she intended to supply it to another person, the fact that he/she thought the drug was some other type of drug does not matter (R v Leeson [2000] 1 Cr App R 233).

Possession of drugs paraphernalia (e.g. clingfilm, contact details, etc.) will be relevant evidence to show that a defendant was an active dealer in drugs but it does not prove the intention to supply and the trial judge will give a jury careful directions as to the probative value of such items found in the defendant’s possession (R v Haye [2002] EWCA Crim 2476).

Where a Rastafarian was prosecuted for possessing cannabis with intent to supply others as part of their religious worship, he claimed that his rights under Articles 8 and 9 of the European Convention on Human Rights had been unnecessarily and disproportionately interfered with. The Court of Appeal, while reducing the sentence, held that such a prosecution had been properly brought (R v Taylor [2001] EWCA Crim 2263).

In proving an intention to supply, you may be able to adduce evidence of the defendant’s unexplained wealth (R v Smith (Ivor) [1995] Crim LR 940) or the presence of large sums of money with the drugs seized (R v Wright [1994] Crim LR 55).

For the purposes of the offence under s. 4 (supplying a controlled drug) and this offence, the ‘another’ cannot be someone charged in the same count, but can be someone charged in other counts in the same indictment.

Question 25

Supplying Articles for Administering or Preparing Controlled Drugs—Misuse of Drugs Act 1971, s. 9A

Answer 25

• Triable summarily
• Six months’ imprisonment and/or a fine

The Misuse of Drugs Act 1971, s. 9A states:
(1) A person who supplies or offers to supply any article which may be used or adapted to be used (whether by itself or in combination with another article or other articles) in the administration by any person of a controlled drug to himself or another, believing that the article (or the article as adapted) is to be so used in circumstances where the administration is unlawful, is guilty of an offence.
(2) It is not an offence under subsection (1) above to supply or offer to supply a hypodermic syringe, or any part of one.
(3) A person who supplies or offers to supply any article which may be used to prepare a controlled drug for administration by any person to himself or another believing that the article is to be so used in circumstances where the administration is unlawful is guilty of an offence.

Question 26

Supply of Articles

Answer 26

The administration for which the articles are intended must be ‘unlawful’.

Section 9A states:
(4) For the purposes of this section, any administration of a controlled drug is unlawful except—
(a) the administration by any person of a controlled drug to another in circumstances where the administration of the drug is not unlawful under section 4(1) of this Act, or
(b) the administration by any person of a controlled drug, other than a temporary class drug, to himself in circumstances where having the controlled drug in his possession is not unlawful under section 5(1) of this Act, or
(c) the administration by any person of a temporary class drug to himself in circumstances where having the drug in his possession is to be treated as excepted possession for the purposes of this Act (see section 7A(2)(c)).
(5) In this section, references to administration by any person of a controlled drug to himself include a reference to his administering it to himself with the assistance of another.

Question 27

Producing Controlled Drug—Misuse of Drugs Act 1971, s. 4(2)

Answer 27

• Triable either way
• Class A (life imprisonment and/or a fine on indictment; six months’ imprisonment and/or prescribed sum summarily)
• Class B (14 years’ imprisonment and/or a fine on indictment; six months’ imprisonment and/or prescribed sum summarily)
• Class C (five years’ imprisonment and/or a fine on indictment; three months’ imprisonment and/or a fine summarily)

The Misuse of Drugs Act 1971, s. 4 states:
(2) Subject to section 28 of this Act, it is an offence for a person—
(a) 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.

Question 28

Production of a Controlled Drug

Answer 28

‘Produce’ means producing by manufacture, cultivation or any other method and ‘production’ has a corresponding meaning (Misuse of Drugs Act 1971, s. 37).

Converting one form of a Class A drug into another is ‘producing’ (R v Russell (1991) 94 Cr App R 351), as is harvesting, cutting and stripping a cannabis plant (R v Harris [1996] 1 Cr App R 369).

The addition of adulterants or bulking agents can amount to the production of a controlled drug (R v Williams [2011] EWCA Crim 232).

Being ‘concerned in the production’ requires evidence that the accused played an identifiable role in the production of the drug in question. This was not satisfied where the accused simply permitted two others who were producing drugs to use his kitchen (R v Farr [1982] Crim LR 745).

Question 29

Cultivation of Cannabis—Misuse of Drugs Act 1971, s. 6

Answer 29

• Triable either way
• 14 years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or prescribed sum summarily

The Misuse of Drugs Act 1971, s. 6 states:
(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.
(2) Subject to section 28 of this Act, it is an offence to cultivate any such plant in contravention of subsection (1) above.

Question 30

Cultivation of Cannabis

Answer 30

The definition of ‘cannabis’ provided by s. 37(1) of the Misuse of Drugs Act 1971 (see para. 2.2.2.2) does not apply to the use of the word ‘cannabis’ in s. 6 of the Act, since the context of the instant offence clearly requires that the plant itself be cultivated.

‘Cultivate’ is not defined but it appears that you need to show some element of attention (e.g. watering) to the plant by the defendant in order to prove this offence. This offence does not permit police officers to tend plants which have been seized as evidence in order to preserve them as exhibits for court.

You need only show that the plant is of the genus Cannabis and that the defendant cultivated it; you need not show that the defendant knew it to be a cannabis plant (R v Champ [1981] 73 Cr App R 367).

Question 31

General Defence under Section 28

Answer 31

There is a general defence (available under s. 28 of the Misuse of Drugs Act 1971) to a defendant charged with certain drugs offences. Section 28 applies to offences of:

• unlawful production (s. 4(2));
• unlawful supply (s. 4(3));
• unlawful possession (s. 5(2));
• possession with intent to supply (s. 5(3));
• unlawful cultivation of cannabis (s. 6(2));
• offences connected with opium (s. 9) (not covered in the NPPF Step 2 Exam syllabus).

The defences under s. 28 are not available in cases of conspiracy as conspiracy is not an offence under the 1971 Act (R v McGowan [1990] Crim LR 399).

This defence envisages three distinct situations:

• a lack of knowledge by the defendant of some fact which is alleged by the prosecution;
• a general lack of knowledge by the defendant about the drug in question;
  a conditional belief held by the defendant about the drug in question.

Question 32

The Misuse of Drugs Act 1971, s. 28 states:

Answer 32

(2) Subject to subsection (3) below, in any proceedings for an offence to which this section applies 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 some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.
(3) Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused—
(a) shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but
(b) shall be acquitted thereof—
(i) if he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or
(ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug, or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies.

Question 33

Lack of Knowledge of Some Alleged Fact

Answer 33

Section 28(2) allows a defence where the defendant did not know, suspect or have reason to suspect the existence of some fact which is essential to proving the case.

Example

X is stopped in the street by Y who asks him to drop off a letter in an envelope at a nearby address in exchange for £10. As X approaches the address, he is arrested for possessing a controlled drug (which is inside the envelope), with intent to supply.

X is in ‘possession’ of the drug as he has custody of it and knows that the envelope contains something; what s. 28(2) does is to allow X a defence. X can discharge the evidential burden by showing that he neither knew nor suspected that the envelope contained a controlled drug, and that he neither knew nor suspected that he was supplying it to another. Both of these elements would be facts which the prosecution would have to allege to prove the offence.

If X knew the person to be a local drug dealer, or the reward for his errand was disproportionately large, say £1,000, then he may not be able to discharge this evidential burden.

The test for ‘reason to suspect’ is an objective one (R v Young [1984] 1 WLR 654). Consequently, where a ‘reason to suspect’ was not apparent to a defendant because he/she was too intoxicated to see it, the defence will not apply.

Question 34

General Lack of Knowledge about Drug in Question

Answer 34

The wording of s. 28(3)(a) prevents defendants from claiming a ‘defence’ when what they thought was one type of controlled drug was in fact another different controlled drug.

Section 28(3)(b), however, has two strands, one concerned with the defendant’s general lack of knowledge about the drug in question and the other (see para. 2.2.9.3) concerning the defendant’s conditional belief.

Section 28(3)(b)(i) will allow defendants to prove that they did not believe or suspect the substance in question to be a controlled drug and that they had no reason so to suspect.

This clearly overlaps with s. 28(2), and X in the above example would also be able to claim this lack of knowledge. However, if he believed the envelope to contain amphetamine when it turned out to contain heroin, this lack of knowledge would not be permitted as a defence under s. 28(3).

Question 35

Conditional Belief about Drug in Question

Answer 35

In contrast to s. 28(3)(a), the second strand of s. 28(3)(b)(ii) allows defendants to discharge the evidential burden by showing that they did believe the drug in question to be a particular controlled drug. It is then open to defendants to claim that, had the drug in question actually been the drug which they believed it to be, then they would not have committed any offences in relation to that drug.

Example

A registered heroin addict is prescribed methadone. She collects her prescription from a chemist but is mistakenly given pethidine instead. She may be able to discharge the evidential burden by showing that she believed the drug in question to be methadone and that, if it had been, she would not have committed an offence by possessing it.

Question 36

Regulated Possession and Supply of Controlled Drugs

Answer 36

The statutory framework governing controlled drugs does not simply ban substances and their possession outright. People working at various levels within the system need to be able to access, analyse and prescribe substances that are controlled by the 1971 Act. To that end, the framework takes account of the differing legitimate activities that may be relevant to individual people or particular circumstances. The majority of the exceptions and conditions imposed on this lawful possession and use can be found in the Misuse of Drugs Regulations 2001 and also in the Misuse of Drugs and Misuse of Drugs (Safe Custody) (Amendment) Regulations 2007 (SI 2007/2154).

The importance of the 2001 Regulations lies in the fact that they exempt certain drugs and certain people (pharmacists, laboratory workers and police officers etc.) from the main offences of possession, supply and importation as long as they are acting lawfully within the parameters set out by those regulations. A person in such an occupation who possesses, supplies or imports a controlled drug outside the terms of the exemptions will commit an offence.

Other people who are given the same protection are Customs and Excise officers, postal workers and people engaged in conveying the drug to someone who may lawfully possess it. This last category would include civilian support staff, exhibits officers and others who, although not police constables, are nevertheless properly engaged in conveying controlled drugs to others.

The Misuse of Drugs (Amendments) (Cannabis and Licence Fees) (England, Wales and Scotland) Regulations 2018 (SI 2018/1055), in force as of 1 November 2018, amend the Misuse of Drugs Regulations 2001 to allow the wider use of cannabis-based products for medicinal use in humans, essentially for medical purposes. Additional controls, beyond those generally provided for in relation to drugs specified in sch. 2 to the 2001 Regulations, are imposed for cannabis-based products for medicinal use in humans. The law does not limit the types of conditions that can be considered for treatment and doctors will no longer need to seek approval from an expert panel in order for patients to access the medicines. The decision to prescribe these unlicensed medicines must be made by a specialist doctor—not a GP. These doctors focus on one field of medicine, such as neurology or paediatrics, and are listed on the General Medical Council’s specialist register. They must make decisions on prescribing cannabis-based products for medicinal use on a case-by-case basis, and only when the patient has an unmet special clinical need that cannot be met by licensed products.

Question 37

Among the key regulations (SI 2001/3998) are:

Answer 37

• Regulation 4—which sets out those controlled drugs which will be exempted from the main offences of importation/exportation when they are contained in medicinal products.
  
  • Regulation 5—allowing people holding a licence issued by the Secretary of State to produce, supply, offer to supply or have in their possession a controlled drug.
  • Regulation 6—this allows anyone who is lawfully in possession of a controlled drug to give the drug back to the person from whom he/she obtained it and would cover registered heroin addicts properly returning methadone to a chemist. Regulation 6 also allows others to possess and supply certain controlled drugs under strict conditions. Regulation 6 allows police constables to have any controlled drug in their possession, or to supply such a drug to anyone who is lawfully allowed to have it (reg. 6(5)–(7)). These exemptions only apply where constables are acting in the course of their duty as such.

Question 38

Occupier or Manager of Premises Permitting Drug Misuse—Misuse of Drugs Act 1971, s. 8

Answer 38

• Triable either way
• Class A or B (14 years’ imprisonment and/or a fine on indictment; six months’ imprisonment and/or prescribed sum summarily)
• Class C (14 years’ imprisonment and/or a fine on indictment; three months’ imprisonment and/or a fine summarily)

The Misuse of Drugs Act 1971, s. 8 states:
A person commits an offence if, being the occupier or concerned in the management of any premises, he knowingly permits or suffers any of the following activities to take place on those premises, that is to say—
(a) producing or attempting to produce a controlled drug in contravention of section 4(1) of this Act;
(b) supplying or attempting to supply a controlled drug to another in contravention of section 4(1) of this Act, or offering to supply a controlled drug to another in contravention of section 4(1);
(c) preparing opium for smoking;
(d) smoking cannabis, cannabis resin or prepared opium.

Question 39

Occupier

Answer 39

A person does not have to be a tenant, or to have estate in land, in order to be an ‘occupier’. The term ‘occupier’ should be given a ‘common sense’ interpretation (R v Tao [1977] QB 141). For the purposes of s. 8, a person is in occupation of premises, whatever his/her legal status, if the prosecution can show that the accused exercised control, or had the authority of another, to exclude persons from the premises or to prohibit any of the activities referred to in s. 8 (R v Coid [1998] Crim LR 199).

Question 40

Concerned in the Management

Answer 40

To be a manager, the accused must run, organise and plan the use of the premises (R v Josephs (1977) 65 Cr App R 253) and so must be involved in more than menial or routine duties.

‘Premises’ is not defined.

The permitting or suffering of these activities requires a degree of mens rea (Sweet v Parsley [1970] AC 132) even if that degree is little more than wilful blindness (R v Thomas (1976) 63 Cr App R 65). For the purposes of s. 8(b), and therefore presumably s. 8(a), it is not necessary to show that the defendant knew exactly which drugs were being produced, supplied etc.; only that they were ‘controlled drugs’ (R v Bett [1999] 1 WLR 2109).

However, the precise activities that are described under s. 8 will need to be proved. So, for instance, if the offence charged is one of knowingly permitting the smoking of cannabis (under subs. (d)), it must be shown that this actually took place; it is not enough that the owner/occupier had given permission for this to happen (R v Auguste [2003] EWCA Crim 3929). This is also the case when the offence charged is one of supplying or attempting to supply a controlled drug to another (under s. 8(b)), i.e. it must be shown that the supply or attempted supply actually took place (R v McGee [2012] EWCA Crim 613).

An occupier who permits the growing of cannabis plants commits this offence (Taylor v Chief Constable of Kent [1981] 1 WLR 606).

Question 41

Assisting or Inducing Misuse of Drugs Offence Outside UK—Misuse of Drugs Act 1971, s. 20

Answer 41

• Triable either way
• 14 years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or a fine summarily

The Misuse of Drugs Act 1971, s. 20 states:

A person commits an offence if in the United Kingdom he assists in or induces the commission in any place outside

the United Kingdom of an offence punishable under the provisions of a corresponding law in force in that place.

Question 42

Assisting or Inducing Offence Outside United Kingdom

Answer 42

In order to prove this offence, you must show that the offence outside the United Kingdom actually took place. This offence may overlap with the offences of importation/exportation.

‘Assisting’ includes taking containers to another country in the knowledge that they will later be filled with a controlled drug and sent on to a third country (R v Evans (1977) 64 Cr App R 237). For an offence to amount to one under ‘corresponding law’ for these purposes, a certificate relating to the domestic law concerned with the misuse of drugs must be obtained from the government of the relevant country (s. 36).

Question 43

Incitement—Misuse of Drugs Act 1971, s. 19

Answer 43

• Triable and punishable as for substantive offence incited

The Misuse of Drugs Act 1971, s. 19 states:

It is an offence for a person to incite another to commit an offence under any other provision of this Act.

Question 44

Incitement

Answer 44

A person inciting an undercover police officer may commit an offence under s. 19, even though there was no possibility of the officer actually being induced to commit the offence (DPP v Armstrong [2000] Crim LR 379).

Question 45

Importation of Controlled Drugs

Answer 45

Section 3 of the Misuse of Drugs Act 1971 prohibits the import or export of a controlled drug unless authorised by the regulations made under the Act. The relevant offences and respective penalties are contained in the Customs and Excise Management Act 1979 which provides the following penalties for the improper importation or exportation of controlled drugs:

• Class A—life imprisonment;
• Class B—14 years’ imprisonment;
• Class C—14 years’ imprisonment.

Question 46

Travel Restriction Orders

Answer 46

The Criminal Justice and Police Act 2001 allows courts (in practice, the Crown Court) to impose travel restrictions on offenders convicted of drug trafficking offences. Travel restriction orders prohibit offenders from leaving the United Kingdom at any time during the period beginning from their release from custody (other than on bail or temporary release for a fixed period) and up to the end of the order. The minimum period for such an order is two years (s. 33(3)); there is no maximum period prescribed in the legislation.

Where a court:

• has convicted a person of a drug trafficking offence; and
• it has determined that a sentence of four years or more is appropriate;
  it is under a duty to consider whether or not a travel restriction order would be appropriate (s. 33). If the court decides not to impose an order, it must give its reasons for not doing so.

A ‘drug trafficking offence’ is defined by s. 34 of the Act and includes the production of a controlled drug (s. 4(2)), the supply of a controlled drug (s. 4(3)) and the importation/exportation offences under s. 3 along with inciting a person to commit these offences under s. 19 of the Misuse of Drugs Act 1971. It also includes aiding, abetting, counselling or procuring these offences.

The sentence of four years or more must be a single sentence of over four years (not an aggregate) in order to impose a travel restriction order.

Offenders may also be required to surrender their UK passport as part of the order.

An offender may apply to the court that made a restriction order to have it revoked or suspended (s. 35) and the court must consider the strict criteria set out in s. 35 when considering any such suspension or revocation. If an order is suspended, the offender has a legal obligation to be back in the United Kingdom when the period of suspension ends (s. 35(5)(a)).

Question 47

Contravening a Travel Restriction Order—Criminal Justice and Police Act 2001, s. 36

Answer 47

• Triable either way
• Five years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or a fine summarily

The Criminal Justice and Police Act 2001, s. 36 states:
(1) A person who leaves the United Kingdom at a time when he is prohibited from leaving it by a travel restriction order is guilty of an offence . . .
(2) A person who is not in the United Kingdom at the end of a period during which a prohibition imposed on him by a travel restriction order has been suspended shall be guilty of an offence . . .

Question 48

Contravening a Travel Restriction Order

Answer 48

These offences do not require a particular state of mind.

The first offence requires proof of two things: (a) that there was an order in existence in respect of the offender; and (b) that he/she left the United Kingdom during the time it was in force. There is no requirement that the person leave the United Kingdom voluntarily in order to be guilty (although he/she would have a good argument if he/she were taken out of the jurisdiction against his/her will or without his/her knowledge).

Travel restriction orders do not prevent the proper exercise of any prescribed power to remove a person from the United Kingdom (s. 37). So if the Secretary of State deports someone who is under a travel restriction order, that person would not commit the above offence.

The second offence requires proof that there was a suspended order in existence in respect of the offender and that, at the end of the suspension period, the offender was not in the United Kingdom.

Failing to deliver up a passport when required by an order is a summary offence (six months’ imprisonment and/or a fine (s. 36(3)).

Question 49

Powers of Entry, Search and Seizure

Answer 49

If a warrant obtained under s. 23 authorises the search of premises only, that in itself will not give the officers authority to search people found on those premises unless the officer can point to some other power authorising the search (Hepburn v Chief Constable of Thames Valley [2002] EWCA Civ 1841).

However, where the warrant authorises the search of premises and people, the Divisional Court has held that it is reasonable to restrict the movement of people within the premises to allow the search to be conducted properly (DPP v Meaden [2003] EWHC 3005 (Admin)).

PACE Code A applies to the exercise of any power to search people for controlled drugs specifically included in a warrant issued under s. 23.

A warrant issued under s. 23 of the Act lasts for a period of one month from the date of issue.

Question 50

The Misuse of Drugs Act 1971, s. 23 states:

Answer 50

(1) A constable or other person authorised in that behalf by a general or special order of the Secretary of State (or in Northern Ireland either of the Secretary of State or the Ministry of Home Affairs for Northern Ireland) shall, for the purposes of the execution of this Act, have 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 and to inspect any stocks of any such drugs.
(2) If a constable has reasonable grounds to suspect that any person is in possession of a controlled drug in contravention of this Act or of any regulations or orders made thereunder, 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.

In this subsection ‘vessel’ includes a hovercraft within the meaning of the Hovercraft Act 1968; and nothing in this subsection shall prejudice any power of search or any power to seize or detain property which is exercisable by a constable apart from this subsection.
(3) If a justice of the peace (or in Scotland a justice of the peace, a magistrate or a sheriff) is satisfied by information on oath that there is reasonable ground for suspecting—
(a) that any controlled drugs are, in contravention of this Act or of any regulations or orders made thereunder, in the possession of a person on any premises; or
(b) that a document directly or indirectly relating to, or connected with, a transaction or dealing which was, or an intended transaction or dealing which would if carried out be, an offence under this Act, or in the case of a transaction or dealing carried out or intended to be carried out in a place outside the United Kingdom, an offence against the provisions of a corresponding law in force in that place, is in the possession of a person on any premises,

he may grant a warrant authorising any constable at any time or times within one month from the date of the warrant, to enter, if need be by force, the premises named in the warrant, and to search the premises and any persons found therein and, if there is reasonable ground for suspecting that an offence under this Act has been committed in relation to any controlled drugs found on the premises or in the possession of any such persons, or that a document so found is such a document as is mentioned in paragraph (b) above, to seize and detain those drugs or that document, as the case may be.

Question 51

Obstruction—Misuse of Drugs Act 1971, s. 23(4)

Answer 51

• Triable either way
• Two years’ imprisonment and/or a fine on indictment
• Six months’ imprisonment and/or a fine summarily

The Misuse of Drugs Act 1971, s. 23 states:

(4) A person commits an offence if he—
	(a) intentionally obstructs a person in the exercise of his powers under this section; or
	(b) conceals from a person acting in the exercise of his powers under subsection (1) above any such books, documents, stocks or drugs as are mentioned in that subsection; or
	(c) without reasonable excuse (proof of which shall lie on him) fails to produce any such books or documents as are so mentioned where their production is demanded by a person in the exercise of his powers under that subsection.

Question 52

Obstruction

Answer 52

The offence of obstructing a person in the exercise of his/her powers is only committed if the obstruction was intentional (R v Forde (1985) 81 Cr App R 19).

Question 53

Supplying, or Offering to Supply, a Psychoactive Substance—Psychoactive Substances Act 2016, s. 5

Answer 53

The Psychoactive Substances Act 2016 creates a number of offences and powers in relation to ‘psychoactive substances’, including the offence of supplying, or offering to supply, a psychoactive substance.

• Triable either way
• Seven years’ imprisonment and/or fine on indictment
• Six months’ imprisonment and/or a fine

The Psychoactive Substances Act 2016, s. 5 states:
(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.
(3) For the purposes of subsection 2(b), the reference to a substance’s psychoactive effects includes a reference to the psychoactive effects which the substance would have if it were the substance which P had offered to supply to R.
(4) . . .

Question 54

‘Psychoactive Substance’ and ‘Psychoactive Effect’

Answer 54

Section 2 of the Act defines a ‘psychoactive substance’ as any substance which is capable of producing a psychoactive effect in a person who consumes it.

A substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state. The main effect of psychoactive substances is on a person’s brain, the major part of the central nervous system. By speeding up or slowing down activity on the central nervous system, psychoactive substances cause an alteration in the individual’s state of consciousness by producing a range of effects including, but not limited to: hallucinations; change in alertness, perception of time and space, mood or empathy with others; and drowsiness (s. 2(2)).

An individual consumes a substance if the individual causes or allows the substance, or fumes given off by the substance, to enter the individual’s body in any way. For example, this includes injecting, eating or drinking, snorting, inhaling and smoking (s. 2(3)).

For the supply offence, the conduct element is satisfied if a person supplies a substance to another person and that substance is a psychoactive substance. By virtue of s. 59(2)(b), supplying for these purposes covers distribution. The transaction does not need to result in payment or reward and would include social supply between friends.

There are three mental elements of the supply offence.

• First, the prosecution must show that the supplying of the substance is intentional.
• Second, the defendant must have known or suspected, or ought to have known or suspected, that the substance is a psychoactive substance.
• Third, the defendant must know, or be reckless as to whether, the psychoactive substance is likely to be consumed by the person to whom it is supplied or another person for its psychoactive effects.

The recklessness test would prevent a head shop proprietor escaping liability by arguing that because the psychoactive substances sold in his/her shop were labelled as ‘plant food’, ‘research chemicals’ or ‘not for human consumption’, he/she did not know that the substances were likely to be consumed.

The conduct element of the offering to supply offence is that the defendant offers to supply a psychoactive substance to another person. Such an offer could take the form of an advertisement, including a catalogue of psychoactive substances on display on a website with the facility to purchase online.

There is one mental element to the offer to supply offence, namely that the defendant knows, or is reckless as to whether, the substance that is being offered is likely to be consumed by the person to whom it is supplied or by another person for its psychoactive effects. This element of the offence is constructed in such a way that it would capture circumstances where a person purports to offer to supply a psychoactive substance to another person but, in fact, either has no intention of fulfilling his/her side of the deal or intends to pass off some other substance as a psychoactive substance. Subsection (3) ensures that such conduct would still be caught by the offering to supply offence.

It is worth noting that this offence covers the supply/offer to supply of a psychoactive substance to a person of any age.

Question 55

Supply of Butane Lighter Refill to Person under 18—Cigarette Lighter Refill (Safety) Regulations 1999, reg. 2

Answer 55

• Triable summarily
• Six months’ imprisonment and/or a fine

The Cigarette Lighter Refill (Safety) Regulations 1999 (SI 1999/1844), reg. 2 states:

No person shall supply any cigarette lighter refill canister containing butane or a substance with butane as a constituent part to any person under the age of eighteen years.

Question 56

Supply of Butane Lighter Refill to Person under 18

Answer 56

There is no requirement that the person believed or even suspected the person to be under 18. The 1999 Regulations are made under the Consumer Protection Act 1987, s. 11.