Possession of Drugs Flashcards
What is Possession of Drugs and what Section is it contained in?
Poession of drugs is contained in S5 Misuse of Drugs Act 1971. The Act categories drugs into 3 categories A,B or C
What must the Prosecution Prove?
Physical Possession and knowledge of possession
That what the defendant had in their Possession was a controlled drug. This may be done by scientific analysis.
In cases of straightforward possession, an admission from the defendant will suffice.
How is possession established
By 2 elements, The defendant must have physical possession of a control drug and must know that he has possession of it.
If someone does not know that they have an item in their possession then they cannot be guilty r v Lambeth 2002
However forgetfulness is no defence
Warner v Metropolitan Police Commissioner 1969
It was held that the jury should differentiate between possession of the substance rather than mere control.
This should be done by:
- The manner and Circumstances in which the substances has been received
- What knowledge or means knowledge or guilty knowledge as to the presence of the substance or as to the nature of what has been received
Joint Possession
Joint Possession will be established if they all have the right to draw from a common pool of drugs.
Mere knowledge of the existence of the drugs is not enough
If someone is in possession of an item but does not know it is a controlled drug
this would not be a defence
If the drug is so small that they could never be consumed?
This does not provide a defence, provided that the prosecution can prove possession and that the drug is ‘visible, tangible, measurable and capable of manipulation’.
Mens rea of possession of drugs
The defendant knew he was in possession of an item
how is Section 28(3) of The misuse of the Drugs Act a defence
The defendant shall be acquitted 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
how is S5(2) of the Misuse of Drugs Act 1971 a defence
If they take possession of a drug for the purpose of preventing another from committing or continuing to commit an offence in connection with that drug
as soon as they took possession of the drugs they took the necessary steps open to him to destroy or to deliver it to the police
Sentencing
Triable either way
Class A
Maximum: 7 years’ custody
Offence range: Fine – 51 weeks’ custody
Class B
Maximum: 5 years’ custody
Offence range: Discharge – 26 weeks’ custody
Class C
Maximum: 2 years’ custody
Offence range: Discharge – Community orde
What is Possession with intent.
If a person has drugs in their possession with intent to pass them on to another then they are guilty of an offence.
it does not matter whether they were the owners of the drugs or simply looking after them and it does not matter if they receive payment.
It is the intention of the holder to pass them onto someone else that establishes the offence
The defendant thought the drugs were of a different class to that alleged or which were found to be the case
This would not be a defence.
Defence for possession with intent
His intention was to pass the drugs onto a police officer for destruction
Or advise the client to go no comment and read out a statement accepting that he was in possession of the drugs, but it was for personal use rather than supply.
If the defendant says they were looking after the drugs for a friend
this inflates the defence from one of possession to one of possession to intent.
This is because the defendant at that point had control of the drugs, knowingly, and so had possession of them, and his intention was to pass them on to someone else. That would be supply, even though the recipient was originally in control of the drugs.
