Misuse of Drugs Act 1971 Flashcards
Possession of a controlled drug
s. 5 misuse of drugs act 1971
Definition
What is necessary to prove ‘possession’?
It is offence for any person to unlawfully have a controlled drug in their possession
Possession = custody or control (e.g. in your car). If you give someone drugs to keep hold of they are in possession but you are still in control.
Necessary to prove possession:
- Possession
- Knowledge of possession of ‘something’
- An actual controlled drug
Unlawful production of controlled drugs
Section 4(2) Misuse of Drugs Act 1971
It is an offence to either produce a controlled drug or be concerned in the production of a controlled drug by another
Includes conversion (converting one type of class a drug into another), harvesting cannabis adding bulking agents. Also includes delivering ingredients to the place of manufacture as long as they knew what the ingredients were being used for.
R v Farr [1982] Crim LR 745 à Farr allowed two acquaintances who turned on his doorstep to use his kitchen to produce controlled drugs. This did NOT amount to being concerned in production because there was no pre-arrangement.
The result of the production is required! However, if someone attempts to produce a controlled drug but fails to do so they may be convicted of an attempt.
An offence of being concerned in the production of a controlled drug requires:
1 - Evidence that a controlled drug was produced; and
2 - Evidence of some link between the suspect and the production process, (for example providing suitable premises or equipment, includes a landlord turning a blind eye); and
3 - Evidence that the suspect knew that a controlled drug was being produced.
Supplying controlled drugs
Aggravating factors
S. 4(3) Misuse of Drugs Act 1971
It is an offence to either supply, be concerned in the supply, offer to supply or be concerned in making an offer to supply a controlled drug to another.
Even if you don’t have the intention or ability to supply the drugs, the offer has been made. Even if the substance offered is not actually a controlled drug the offence will still have been committed.
Once made an offer cannot be withdrawn. An offer can be made to an undercover officer.
3 elements of supplying:
- Transferring control of the drug
- Recipient is in a position to utilise the drug for their own purpose (e.g. they derive some benefit)
- Knowledge by the accused that the actions involved the supply of a controlled drug
Aggravated factors, applies to 18 and over only:
- Committed on a school premises or in the vicinity at a relevant time (1h before school open and 1h after it closes)
- The offender used a courier who at the time of the offence was under 18, to deliver a controlled drug to a third party OR to deliver drug related consideration (e.g. money) to either them or a third party
Possession with intent to supply
S. 5(3) Misuse of Drugs Act 1971
A person:
- has a controlled drug in their possession either lawfully or unlawfully
- with intent to unlawfully supply it to another.
Offence is complete at the time the intent is formed. There is not result required.
The person who has possession must have formed the intent to supply the controlled drugs themselves, this offence does not include the supply by someone else.
Cultivation of cannabis
S.6 Misuse of Drugs Act 1971
It is an offence to unlawfully cultivate cannabis. This includes giving attention to the plant by either, watering, feeding, providing artificial lighting etc.
R v Champ [1981] 73 Cr App R 367 it is irrelevant whether the accused knew the plant was cannabis.
Defences for drugs offences
2 special defences
3 general defences
To which offences do they apply?
Special defences:
- To prevent another from committing an offence.
Knowing or suspecting it to be a controlled drug, take possession to prevent another from committing an offence (in the future) or continue to commit an offence in connection with that drug, and asap afterwards take all reasonable steps to destroy, deliver the drugs to a person lawfully entitled to take custody of the drugs.
Burying = not destroying - Deliver the drugs to a person lawfully entitled to take custody.
If relying on this specific offence you cannot then go on to destroy the drug. Your intention upon taking possession is relevant here.
The intention at the time of taking possession is relevant, as well as further actions
General defences
1. Lack of knowledge of fact
2. Belief that they were entitled to possess
3. Lack of knowledge of the drug
These only apply to COPSPI offences
C - unlawful cultivation of Cannabis
O - offences related to opium
P - unlawful possession
S - unlawful supply
P - unlawful production
I - possession with intent to supply
What is the additional defence for possession of a magic mushroom growing uncultivated?
Additional defence to possession of fungus containing psilocin (magic mushroom). If growing uncultivated it will not be unlawful:
- For the landowner to deliver it to custody (e.g. police); OR
- if picked by another person for the purpose of delivering it asap to custody or destroying it asap
! - Note difference between landowner and third party
Regarding the general defence, ‘Lack of knowledge of the drug’, a person neither believed, suspected or had reason to suspect that the substance was a controlled drug.
Is this an objective or a subjective test?
R v Young [1984] 1 WLR 654 - objective test and so not down to the perception of the individual.
In the above caselaw someone was paid $100 to deliver a package to a known drug dealer. The person was drunk and did not think it through or realise it may be drugs but this is irrelevant. He should have suspected it was drugs. He had no defence.
Supplying Psychoactive Substance – S. 5 Intoxicating Substances (Supply) Act 1985
There are two 2 offences under this section
Offence 1
Intentionally supply the substance to another person. This substance is a psychoactive substance and the person either knows, suspects or ought to know that the substance is a psychoactive substance. And they either know or are reckless as to whether the psychoactive substance is likely to be consumed for its psychoactive effect by any other person.
Offence 2
They offer to supply a psychoactive substance to another person. And the person either knows or is reckless as to whether either the person to whom the offer to supply was made (or another person) would, if supplied in accordance with the offer, be likely to consume the substance for the psychoactive effects
Psychoactive substances are not illegal to possess or consume.
Grounds for a drug warrant
Scope of the warrant
Justice of the peace/magistrate is satisfied that there are reasonable grounds to suspect that:
· Any controlled drugs are unlawfully in the possession of a person on any premises
· A person on the premises has in their possession: documents directly or indirectly relating to transactions which, if carried out, inside the UK or outside, would be an offence under the Misuse of Drugs Act 1971 or corresponding law outside the UK.
Scope of warrant
1. Enter premises (can use force if necessary)
2. Search the premises and any persons therein
3. Seize and detain controlled drugs or documents found on the premises or on persons therein, if reasonable grounds to suspect an offence under the act has been committed.
Importation or exportation of controlled drugs
S. 3 Misuse of Drugs Act 1971
It is an offence to import or export controlled drugs unless they are authorised to so.
Mens rea = knowledge of the import/export is important
Incitement – s.19 Misuse of Drugs Act 1971
To incite another to commit an offence under any provision of the Misuse of Drugs Act 1971.
DPP v Armstrong [2000] Crim LR 379 - offence will be committed if incitement is made to an undercover police officer
Controlled drugs on premises – S. 8 Misuse of Drugs Act 1971
Who an commit the offence?
The offence can be committed by:
· Occupier of the premises (they do not need to have the legal right to occupy it)
· Person concerned in management of the premises (not just a cleaner)
Mens rea = they knowingly permit or suffer (includes wilfully turning a blind eye) any of the 4 PCSO activities on the premises
PCSO (production, cannabis, supply, opium)
1. Production or attempted production of controlled drug (includes growing cannabis)
2. Smoking cannabis, cannabis resin or prepared opium
3. Supply or attempt to supply or offer to supply a controlled drug
4. Preparing opium for smoking (does not include smoking heroin)
Supply of articles – S. 9A Misuse of Drugs Act 1971
Two offences
Offence 1: It is an offence for a person to:
- supply or offer to supply
- any article which may be used to prepare a controlled drug for administration
- by any person either to themselves or another person.
- Believing [mens rea] that the article is to be used in circumstances where the administration is unlawful.
Offence 2: it is an offence for a person to:
- supply or offer to supply
- any article which may be used or adapted
- whether by itself or in combination with other articles
- in the administration by any person of a controlled drug
- to either themselves or another
- Believing [mens rea] that the article is to be used in circumstances where the administration is unlawful.
Articles = drug paraphernalia, but NOT including hypodermic needles
Assisting or inducing offences outside the UK – S.20 Misuse of Drugs Act 1971
Whilst inside the UK, a person either assists in or induces the commission of an offence in any place outside the UK which is contrary to laws in force in that other place.
The offence in the other country actually needs to be committed for the offence to be complete.
R v Evans [1977] 64 Cr App R 237 – defendant took a lorry with empty containers from the UK to a foreign country to be filled with drugs and shipped to another foreign country. He was committing the offence.
