Production and Supply Offences

Question 1

The legislation relating to the illegal production and supply of controlled drugs is found where?

Answer 1

ss 4-6 of Misuse of Drugs Act 1971

For psychoactive substances, production and supply offences are covered in ss 4-7 of the PSA 2016.

Question 2

Production of controlled drugs or psychoactive substances.

Answer 2

It is an offence to produce a controlled drug or be concerned in the production without a licence from the Secretary of State (s 4(2) of the Misuse of Drugs Act 1971).

Growing plants and carrying out chemical processes are included.

Being concerned in production would include delivering chemicals, providing premises or providing finance.

Question 3

For production of cannabis plants, the Home Office reccomends charing under what legislation?

Answer 3

s 4(2) as the charge of ‘cultivation of cannabis’ (s 6(2)) does not allow for the confiscation proceedings (Circular 82/1980).

Question 4

Offences involving the production of controlled drugs penalties?

Answer 4

Triable either way and the penalty is imprisonment and/or a fine.

A: Summary offence = 6 months, indictable offence = Life.

B: Summary offence = 6 months, indictable offence = 14 years.

C: Summary offence = 3 months, indictable offence = 5 years.

Question 5

Section 4(2) offences for a Class A drug are ‘trigger’ offences. What does this mean?

Answer 5

Under s 63B of the PACE Act 1984, a sample can be demanded from a person in custody.

Question 6

The intentional production of a psychoactive substance is an offence under what legislation?

Answer 6

s 4(1) of the PSA 2016.

The person must known of suspect that the substance is a psychoactive substance and also:

• intend to consume it for its psychoactive effects.
• know (or be reckless as to whether) it will be consumed by another person for its psychoactive effects.

Question 7

The intentional production of a psychoactive substance is an offence penalised in what way?

Answer 7

Triable either way and the penalty is a fine and/or imprisonment (12 months summarily, 7 years on indictment).

Question 8

Where are supply offences covered in legislation?

Answer 8

These offences (including offering to supply) are covered under s 4 Misuse of Drugs Act 1971 for controlled drugs and under s 4 of the PSA 2016 for psychoactive substances.

Question 9

A court must treat a supply offence more seriously under what circumstances?

Answer 9

If it was committed in or near to a school, or it the suspect used a courier under the age of 18.

Question 10

For controlled drugs, supply offences are covered under s 4(3) of the Misuse of Drugs Act 1971.

It is an offence to unlawfully…

Answer 10

(a) to supply or offer to supply a controlled drug to another (supply can even just mean passing a joint)
(b) to be concerned in the supplying of such a drug to another; or
(c) to be concerned in making an offer to supply a controlled drug to another

Question 11

Is s 4(3) of the Misuse of Drugs Act 1971 a trigger offence?

Answer 11

Yes, a police officer can demand a sample from a suspect in custody.

Question 12

For psychoactive substances, it is an offence to intentionally supply such a substance to another person (s 5(1) of the PSA 2016) but this only applies if the subject…

Answer 12

• knows or suspects (or ought to) that the substance is psychoactive; and
• knows or suspects (or ought to) or is reckless as to whether another person is likely to consume it for its psychoactive effects

Question 13

Offences involving the supply of controlled drugs penalties?

Answer 13

These offences are all triable either way, and the penalty is a fine and/or imprisonment (12 months if tried summarily, and up to 7 years imprisonment on indictment).

Question 14

Possession of a controlled drug with intent to supply is an offence under what legislation?

Answer 14

s 5(3) of the Misuse of Drugs Act 1971

The substance in question must be a controlled drug (unlike the s 4(3) supplying offence), but need not be the drug the suspect believes it to be, e.g a suspect that believed the drug was heroin can still be guilty even if it was found to be cocaine.

It is not relevant whether the possession was lawful (e.g doctor or police) if he/she intended to unlawfully supply.

Question 15

Is s 5(3) of the Misuse of Drugs Act 1971 a trigger offence?

Answer 15

Yes, a police officer can demand a sample from a suspect in custody.

Question 16

Possession of psychoactive substances with intent to supply is an offence under what legislation?

Answer 16

s 7(1)(a) of the Psychoactive Substances Act 2016.

The suspect must known (or suspect) that the substance is psychoactive s 7(1)(b) and intend to supply to another person for consumption for its psychoactive effects.

Question 17

Offences possession of psychoactive substances with intent to supply penalties?

Answer 17

Triable either way and the penalty is imprisonment and/or a fine.

(12 months if tried summarily, and up to 7 years imprisonment on indictment).

Question 18

Occupier or manager of premises used for controlled drug offences legislation

Answer 18

s 8 of the Misuse of Drugs Act 1971.

Occupier doesn’t have to be tenant or owner, but has to have sufficient control over the premises that he/she could prevent drug related activities.

In practice, this is often taken to be someone who has the right to deny a person entry to the premises. There is no requirement for the ‘occupier’ to have any legal connection to the premises.

Question 19

Occupier or manager of premises used for controlled drug offences legislation.

This offence (s 8 of the Misuse of Drugs Act 1971) concerns persons who occupy or are concerned in the management of a premises, and who ‘knowingly permit or suffer’ which of the following activities….

Answer 19

a) Producing or attempting to produce a controlled drug.
b) Supplying, attempting to supply or offering to supply a controlled drug to another.
c) Preparing opium for smoking.
d) Smoking cannabis, cannabis resin, or prepared opium.

There must be evidence for one of these to have occurred.

You will see that this leaves several gaping holes for offenders to slip through. There is nothing preventing the preparation and smoking of crack cocaine, nor even injecting heroin. Thankfully, the main purpose is to trap those who manage premises where drugs are produced or supplied

Question 20

Occupier or manager of premises used for controlled drug offences legislation (s 8 of the Misuse of Drugs Act 1971) offence penalties

Answer 20

Triable either way and the penalty is imprisonment and/or a fine (6 months for Classes A and B, 3 months for Class C).

On indictment the penalty is a fine and/or up to 14 years imprisonment.

Question 21

The legal import and export of controlled drugs requires a license and is covered under what legislation?

Answer 21

s 3(1) of the Misuse of Drugs Act 1971.

Question 22

Under what legislation is it an offence to knowingly acquire possession or be concerned in transporting, storing or concealing drugs, or be concerned in any fraudulent evasion or attempted evasion of restriction?

Answer 22

s 170 of the Customs and Excise Management Act 1979

These offences are triable either way and the penalty for Class A/B is imprisonment (life and 14 years, respectively) and for Class C on summary conviction three months imprisonment and/or a fine and on indictment 5 years imprisonment.

Question 23

s 170 of the Customs and Excise Management Act 1979 states what

Answer 23

it is an offence to knowingly acquire possession or be concerned in transporting, storing or concealing drugs, or be concerned in any fraudulent evasion or attempted evasion of restriction.

Question 24

Under what legislation is it an offence to intentionally import or export psychoactive substances?

Answer 24

s 8(1) and (2) PSA 2016, respectively.

• Must know/suspect (or ought to know) that substance is psychoactive.
• He/she must also intend to consume it for its effects, or know or be reckless as to whether some other person is likely to consume it for its effects.

Question 25

Offence penalties under s 7 of the PSA 2016…

Answer 25

Triable either way and the penalty is imprisonment and/or a fine.

(12 months if tried summarily, and up to 7 years imprisonment on indictment).

Question 26

Far more serious than the simple possession of illegal drugs is the supply and distribution of them, and it is predominantly these suppliers who are the target of police operations.

There are a number of offences relating to the supply of illegal drugs, including some useful ‘catch all’ offences. The main offences covered here are:

Answer 26

• Importation of controlled drug or psychoactive substance
• Production of a controlled drug
• Possession with intent to supply a controlled drug (also known as PWITS)
• Supplying a controlled drug

Question 27

The maximum penalty for importing a controlled drug is linked to the classification of the drugs themselves:

Answer 27

Class A - Life imprisonment
Class B - 14 years imprisonment
Class C - 5 years imprisonment
NPS - 7 years imprisonment

Question 28

Producing controlled drugs is an offence under…

Answer 28

s4(2) of the Misuse of Drugs Act 1971.

In this sense, “production” means to manufacture or cultivate. There is a separate offence under s6(2) for “Cultivation of Cannabis” (which overlaps with the s4(2) offence) but this is now rarely used as it does not allow police to recover financial assets from those involved in cannabis supply.

Question 29

s4(2) of the Misuse of Drugs Act 1971 also makes it an offence to be…

Answer 29

concerned in the production of drugs.

Useful examples: purchasing chemicals, knowing that they would be used for drug production, providing the premises, financing the production of drugs etc., would all count as “being concerned in the production”.

Question 30

The maximum penalty for producing controlled drugs is linked to the classification of the drugs themselves:

Answer 30

Class A - Life imprisonment
Class B - 14 years imprisonment
Class C - 5 years imprisonment

Question 31

Possession with Intent to Supply a Controlled Drug (PWITS)

This is the most common of all the supply offences that you will encounter and comes from…

Answer 31

s5(3) of the Misuse of Drugs Act.

Most officers refer to the offence as “P-WITS”.

Question 32

Mens Rea of Possession with Intent to Supply a Controlled Drug (PWITS)

Answer 32

Essentially, this offence is exactly the same as the basic offence of possession, but with an added mens rea of intention to give the drugs to another.

This offence requires someone to be in possession of a controlled drug. It is insufficient for it to be another substance. The offence is complete when the intent to supply to another is formed.

Question 33

Supplying a Controlled Drug

Section 4(3) of the Misuse of Drugs Act 1971 deals with the actual supply of drugs. This offence is split into several parts. An offender must unlawfully:

Answer 33

• Supply a controlled drug
• Offer to supply a controlled drug
• Be concerned in the supply of a controlled drug
• Be concerned in making an offer to supply a controlled drug to another

Question 34

Supplying a controlled drug is…

Answer 34

The actual act of giving or selling drugs to another.

No money needs to change hands and there is no legal minimum quantity.

The act of simply giving somebody a cannabis joint would qualify as an act of supply, as would injecting another user with heroin.

The substance concerned must actually be a controlled drug and there must be transference of physical control.

The controlled drug must be for the purpose of the recipient (either for them to use or to further supply on).

Simply handing drugs to another to ask them to look after them is not supply as the control of those drugs has not been transferred.

Question 35

‘Offering to supply’…

Answer 35

There is no requirement for a person offering to supply a drug to either have it in their possession, or even be in a position to enable the supply of a drug if the offer was accepted.

Gathering evidence of verbal offers can be very difficult, but many drug transactions can take place via text message, Facebook Messenger, WhatsApp and other such sources of documentary evidence.

Offers can be words or simply conduct.

Question 36

‘Concerned in the supply’ is…

Answer 36

more of a catch-all offence, but you must demonstrate some kind of link to the supply of actual controlled drugs.

Important to show that the person knew their actions were in support of the supply of controlled drugs.

Most often, this section is used to prosecute runners, couriers and dealers retrospectively when they are not necessarily caught in possession of drugs.

This is a very important offence and ensures that everybody involved in the drug supply chain can be prosecuted. This allows those who are knowingly part of the overall drug operation to still be charged, even if they never lay hands on drugs themselves.

You cannot be concerned in the supply if it is directly to or from yourself.

This is for those who are one or more steps back from the actual supply. To be concerned in a supply, there must be an actual supply and it must be shown the person has knowledge and participation in it.

Question 37

‘Concerned in making an offer to supply’ is…

Answer 37

a lesser-used offence, but it is most often used to prosecute runners working on behalf of dealers. It is another catch-all, ensuring that anybody connected to the making of an offer to supply can be prosecuted.

Question 38

What are cutting agents?

Answer 38

Powder drugs such as Cocaine and Heroin tend to be adulterated numerous times along the supply chain. This is done in order to maximise profits.

Cutting agents are used for this adulteration and are generally chosen due to the similar appearance and effects, e.g Benzocaine, Lidocaine and Phenacetin.

These are all legal substances with a legitimate use however are commonly diverted by criminal gangs.

To tackle this, the Serious and Organised Crime Act 2015 brought in powers to seize, detain and destroy drug cutting agents. Whilst mostly used by Border Agency it is worth having knowledge of this act.