Misuse of Drugs Flashcards
Possession Of A
Controlled Drug
Section 5 Misuse of Drugs Act 1971
It is an offence for any person to:
*Unlawfully;
*Have a controlled drug;
*In their possession.
Proving Possession
Of A Controlled Drug
3 Steps
R v Lambed [2002] 2 AC 545
It is necessary to prove:
*Step 1 - Possession.
*Step 2 - Knowledge of possession.
*Step 3 - What the defendant possesses is,
in fact, a controlled drug.
Step 1
Proving Possession
Custody or Control
The substance or thing must be either:
*In the custody of the defendant; or
*Under the control of the defendant
This can include anything
subject to the
defendant’s control
which is in the
custody of another
Section 37(3) Misuse of Drugs Act 1971
step 2
Proving Knowledge
Of Possession
The defendant must know
that they had the
substance or thing
in their possession
— i.e. either in their custody
or under their control.
Is It Necessary To Prove That The
Defendant Knew That The
Substance Or Thing Was Actually A
Controlled Drug?
No
It is only necessary to prove that they
knew they had something
under their custody or control.
Lack Of Knowledge
Of Possession
Sneakily Depositing Substances
X slips a substance into Y ‘s pocket
without their knowledge
Warner v MPC (1969] 2 AC 256.
Lack Of Knowledge
Of Possession
Due To The Miniscule Quantity
Of What Is In Their Possession
If the quantity of the substance
was so miniscule that the
accused could not possibly
have been aware of its presence
— there will be no possession.
The quantity
must be
“visible, tangible
and measurable”
R v Boyesen (1982) AC 768
step 3
The Substance Or
Thing Possessed Is, In
Fact, A Controlled Drug
It is necessary to prove
that what
the defendant possesses
is in fact,
a controlled drug.
Lack Of Knowledge As
To The Quality Of What
Is In Their Possession
Is It Necessary To Prove That
The Accused Knew That The
Substance Or Thing In Their
Custody Or Under Their Control
Was A Controlled Drug?
No
If knowledge of possession
is established and
the substance
is in fact
a controlled drug
— there will be a
case to answer.
Will A Mistake Or Lack Of
Knowledge As To The Quality Of The
Substance Prevent A Person Being
In Possession Of It?
No
It is irrelevant if the accused thought
that they were in possession
of a different substance.
A male was convicted of possession of heroin
when he admitted to possessing a knife
with a substance,
which he thought was sand, on it.
R v [1971] 1 WLR 187
Possession And
Containers
The accused will be guilty if:
* A container is in the accused’s
possession - (e.g. a cigarette packet);
* The container contains a substance -
(e.g. a joint of marijuana).
* The accused knew that there were
contents in the container.
Joint Possession Of
Controlled Drugs
Drugs Found In Vehicles Jointly
Used
Mere presence in the same vehicle
as the drugs and
knowledge that the drugs
are present
— will be insufficient of itself
to establish joint possession…
..it must also be established
that the drugs form part of a
common pool
from which each of the joint parties
have the right to draw at will
(i.e. each party had the right to
decide what to do with the drugs)
R v Searle [1971] Crim LR 592
PENALTIES FOR POSSESSION
CLASS A DRUGS
* Either way offence.
* Penalty in the Crown Court - 7 years imprisonment and or a fine;
* Penalty in the Magistrates Court - 6 months imprisonment and or a proscribed sum.
CLASS B DRUGS
* Either way offence.
* Penalty in the Crown Court - 5 years imprisonment and or a fine;
* Penalty in the Magistrates Court - 3 months imprisonment and or a fine.
CLASS C DRUGS
* Either way offence.
* Penalty in the Crown Court - 2 years imprisonment and or a fine;
* Penalty in the Magistrates Court - 3 months imprisonment and or a fine.
PENALTY NOTICE FOR DISORDER (PNDs) FOR POSSESSION OF CANNABIS
LEARNING POINTS
* A PND can only be issued for the offence of possession of cannabis by an adult (18 or over) for personal use.
* A PND cannot be issued in respect of other drugs offences.
* A PND cannot be issued in respect of persons under 18.
Defences
2 categories
Special Defences
2 special defences
to the offence of
possession
only.
General Defences
3 general defences
which apply to
a wider list of
C.O.P.S.P.I. offences.
To Prevent Another
From Committing An
Offence
Section 5(4)(a) Misuse of Drugs Act 1971
Mens Rea?
Either:
*Knowing; or
*Suspecting,
..it to be a controlled drug..
Initial Action?
they took possession
of the
controlled drug…
Reason?
. .to prevent
another from
committing an offence (in the future),
or continue to commit an offence
in connection with that drug
Further Action?
and ASAP after taking possession of the
drug they took all reasonable steps to
either:
* Destroy the drugs; or
* Deliver the drugs to a person lawfully
entitled to take custody of the drugs.
Timing Of Destruction?
*Any destruction of drugs must
be of immediate effect.
*Burying drugs in the hope of
eventual decomposition by
the elements will be
insufficient
R v Murphy [2003] 1 WLR 422
To Deliver The Drugs
To A Person Lawfully
Entitled To Take
Custody
Section 5(4)(b) Misuse of Drugs Act 1971
Mens Rea?
Either:
*Knowing; or
*Suspecting;
.it to be a controlled drug..
Initial Action?
.they took possession
of the
controlled drug…
Reason?
..solely for the purpose of
delivering it into the custody of a person
lawfully entitled
to take custody of the drug…
Further Action?
.and ASAP after taking possession
of the drug they took all reasonable steps
to deliver the drugs to a
person lawfully entitled
to take custody of the drugs.
NB — No reference to destroying the
drugs.
3 General Defences
Section 28 Misuse of Drugs Act 1971
Which Categories Of
Offences Do The 3
General Defences
Relate To?
COPSPI
- Section 6(2)- C - Unlawful cultivation of cannabis.
- Section 9 - O - Offences related to opium.
- Section 5(2)- P - Unlawful possession.
- Section 4(3)- S - Unlawful supply.
- Section 4(2)- P - Unlawful production.
*Section 5(3)- I - Possession with intent to supply.
Excluded Offences
The 3 general defences do not apply to
either:
*Conspiring; or
*Attempting
.to carry out any of the “COPS PI”
activities.
The 3 General
Defences
FED
F - Lack of knowledge of fact;
E - Belief that they were entitled to possess;
D - Lack of knowledge of drug.
Lack Of Knowledge
Of Fact
Section 28(2) Misuse of Drugs Act 1971
In relation to a fact alleged by the prosecution
the person either:
* Did not know of the existence of a fact alleged;
* Did not suspect the existence of that fact; or
* Had no reason to suspect the existence of that
fact.
The “No Reason To Suspect”
Test
The test is objective in nature.
-i.e. would a reasonable, sober person,
if placed in that situation,
have had no reason to suspect
the existence of the fact.
R v Young [19841 1 WLR 654
Belief They Were
Entitled To Possess
Section 28(3)(b) Misuse of Drugs Act 1971
They believed that
the substance or product
was a particular controlled drug
Had it been
that particular controlled drug
they would not have been
committing an offence.
Lack Of Knowledge
Of Drug
Section 28(3)(a) Misuse of Drugs Act 1971
When Will This Defence Be Of
Relevance?
When it is necessary for the prosecution
to prove that the drug in question
was a specific drug
The prosecution have proven
that the drug in question was of that type.
If so - a defence will be established where the person
proves they neither:
* Believed;
* Suspected; or
* Had reason to suspect
..that the substance or product in question was a
controlled drug.
Defences To
Possession Of Fungus
Containing Psilocin
(Magic Mushrooms)
Possession of a fungus growing uncultivated -
containing either:
*Psilocin; or
*An ester of psilocin
will not be unlawful in either of 2 situations.
Situation 1
Landowner
Initial Action?
It is picked by
the person
who is already in
lawful possession of it
(i.e. the landowner)..
Purpose?
.for the sole purpose
of delivering it ASAP
into the custody of a
person lawfully entitled to
take custody (e.g. the police)..
Further Action?
and it remains in
that person’s possession
for that purpose.
Situation 2
Any Other Person
It is picked by another person for
the purpose of either:
*Delivering it ASAP into the
custody of a person lawfully
entitled to take custody of it (e.g.
the police); or
*Destroying it ASAP.
Unlawful Production
Of Controlled Drugs
Section 4(2) Misuse of Drugs Act 1971
It is an offence to either:
*Produce a controlled drug - (i.e. by
manufacture, cultivation, or any other
method); or
*Be concerned in the production of a
controlled drug by another.
Examples Of
Production Of
Controlled Drugs
Conversion
Converting
one type of Class A drug
into
another type of Class A drug.
R v Russell [1992] 94 Cr App R351
Harvesting Cannabis
Harvesting, stripping and cutting
cannabis plants.
R v Harris (1996) 1 CrApp R 369
Bulking
Adding bulking agents.
R v Williams [2011] EWCACrim 232
Is The Result Of Actual
Production Required?
Yes
However, where a person attempts
to produce a controlled drug,
but fails to do so
- they may still be convicted of an attempt.
Concerned In The
Production Of
Controlled Drugs
Role Played In Production?
It must be proven
that the defendant
played an active part
in the production
of the controlled drug.
Delivering ingredients
to the place of manufacture
-as long as they knew
what the ingredients
were being used for.
Allowing your kitchen to be
used to produce controlled
drugs
will not amount to being
concerned in production
R v Farr [1982] Crim LR 745.
PENALTY FOR UNLAWFUL PRODUCTION OF CONTROLLED DRUGS
CLASS A DRUGS
* Either way offence.
* Penalty in the Crown Court - Life imprisonment and or a fine;
* Penalty in the Magistrates Court - 6 months imprisonment and or a proscribed sum.
CLASS B DRUGS
* Either way offence.
* Penalty in the Crown Court - 14 years imprisonment and or a fine;
* Penalty in the Magistrates Court - 6 months imprisonment and or a fine.
CLASS C DRUGS
* Either way offence.
* Penalty in the Crown Court - 5 years imprisonment and or a fine;
* Penalty in the Magistrates Court - 3 months imprisonment and or a fine.
Supplying Controlled
Drugs
Section 4(3) of Misuse of Drugs Act 1971
It is an offence to either:
*Supply;
*Be concerned in the supply;
*Offer to supply;
*Be concerned in making an offer to supply
..a controlled drug to another.
