Possession of Drugs- definitions Flashcards
Q: What are the 2 elements to possession?
- Physical element
- Mental element
Q: What is the physical element?
Requires proof that the ‘thing’ is in either the custody or the control of D.
Physical custody (actually having the thing on your person) is not necessary, but if you don’t have physical custody you must have control over the thing.
Eg: a person who leaves drugs in his car still has control, not physical custody.
Q: Case- physical element
Peaston 1979- X buys controlled drug via internet, directing that it be sent by post to his home address. X is in possession of the drug the time it arrives through the letterbox.
Q: What is the mental element?
D must know that the thing in question is in his custody or under his control.
D need not know what its nature is, but as long as he knows that the thing is under his control, it is in his possession. He does not need to know that it is a controlled drug!
Ignorance of, or mistake as to the quality of, the thing in question does not prevent the accused being in possession of it.
Q: Case- mental element
Warner 1969- a person does not possess something of which he is completely unaware as there would be no knowledge of possession. If a drug is put into someone’s pocket without his knowledge he is not in possession of it.
Q: What if the drugs are in a container and does not know what is inside?
For there to be possession, the person must have control of the container and know the container holds something, even if they do not know what it is.
Q: What is the one exception to the rule requiring knowledge that something is in your custody or control?
A person is in possession of a drug delivered to his home even if he is unaware it has arrived, provided it is delivered in response to a request by him.
Q: Does X need to be aware of what he possesses?
It is necessary that the person knows what they have custody or control of is a controlled drug, it is sufficient that they know they have possession of something.
X does not need to know the quality of the thing he possesses. He does not need to know what the thing actually is.
Eg: if X knows he has custody of some tablets, which he believes are aspirin but which are actually amphetamines, X is in possession of amphetamines.
Q: Is knowledge of quantity important?
Yes- there must be enough of the thing for D to have knowledge of its existence. If the quantity of controlled drug is so small that D could not have possibly have known about it then it could not be ‘possessed’.
Boyesen 1982- drug must be ‘visible, tangible and measurable’
Q: Can possession be joint?
Yes!
To show that 2 or more persons are in possession of a controlled drug requires more than mere ability to control it. Knowledge of the presence of a drug is not enough.
Eg: if 2 people share a vehicle they know contains controlled drugs they are both in possession if each shares with the other the right to control what is done with them.
Mere presence in the same vehicle as the drugs, and knowing they were there, was not sufficient. Each person must have control or the right to control the drugs.
Q: Case- joint possession
Searle 1971- joint possession can be established by asking the question ‘do the drugs form part of a common pool from which all have the right to draw?’
