Section 6(1)(f) - Possession of controlled drugs for supply

Question 1

What is the penalty for 6(1)(f)?

Answer 1

Section 6(1)(f) Misuse of Drugs Act 1975

• Life for Class A
• 14 years for Class B
• 8 years in all other cases

Question 2

What are the ingredients for 6(1)(f)?

Answer 2

1) No person shall
2) Have any controlled drug
3) In his possession
4) For any of the purposes set out in paragraphs (c), (d), or (e) of this subsection.

Question 3

What are the two separate elements to be proved around possession?

Answer 3

1. The physical element
2. The mental element

Question 4

Describe the physical element of possession.

Answer 4

Physical custody or control over the drugs. This can be either actual or potential.

Question 5

Define what actual and potential custody is.

Answer 5

Actual custody: Means that the person actually has the drug in their custody or control.

Potential custody or control: S2(2) MODA - the things which a person has in his possession include anything subject to his control which is in the custody of another.

Question 6

What is the mental element?

Answer 6

A combination of knowledge and intention.

Question 7

What does knowledge require with regards to possession?

Answer 7

A sense of an awareness by the accused that the substance is in his possession. He must also have knowledge that what is in his possession is a controlled drug; although he need not know its exact nature.

Question 8

What does intention require with regards to possession?

Answer 8

That the defendant must have intended to exercise possession.

Question 9

What must be shown to prove knowledge of existence and possession

Answer 9

• The defendant must be aware that they possess the substance.
• The defendant identifies the substance as a controlled drug, even if there is no substance to be analysed to prove their assertion.
• That physical custody presumes knowledge, unless otherwise proven.

Question 10

Lockyer v Gibb - possession

Answer 10

A person cannot be said to be in possession of some article which he or she does not realise is in their possession.

Question 11

R v Cruse - proof of a substance

Answer 11

There is no logical reason why circumstantial evidence might not be sufficient to prove identity of the substance beyond reasonable doubt.

Question 12

Julian v Green - physical custody

Answer 12

That physical custody raises an inference of concurrent knowledge of the contents.

Question 13

What do you need to establish when considering whether a person knows the qualities of a substance?

Answer 13

• That they know they have the substance
• That they know the substance’s nature or qualities
• That they intend to use the substance in a way that allows you to charge them with possession.

Question 14

Police v Rowles - defence to knowledge and intent

Answer 14

Police v Rowles - a genuine lack of awareness would exclude ‘knowing possession’ and thereby intent. A person cannot knowingly be in possession of an article which they mistakenly but honestly believe they do not possess.

Question 15

R v Martin

Answer 15

Lack of knowledge caused by memory lapse - R v Martin:

It is essential to establish if the memory loss is complete or merely that knowledge of the seeds are not always at the forefront of the defendant’s mind.

Question 16

S2(2): potential possession?

Answer 16

The things which a person has in his possession include any thing subject to his control which is in the custody of another.

Question 17

What would be an example of potential custody or control?

Answer 17

A person storing their drugs at a friend’s house.

Question 18

What does proof of possession require?

Answer 18

Proof of both a physical element (actus reus) and a mental element (mens rea).

Question 19

R v Cox (1990)

(Coxen in a rowing 8 - think of a coxen in a rowing 8 - steroids for the team are in the back but he knows where they are - they’re under his control and he has an intention to dish them out to the team before the race)

Answer 19

Possession involves two elements. The first, the physical element, is actual or potential physical custody or control. The second, the mental element, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession and an intention to exercise possession.

Application: Possession

Question 20

What does control mean?

Answer 20

To exercise authoritative or dominating influence or command over it.

Question 21

What do you need to prove regarding joint possession and what is the alternative charge if you can’t?

Answer 21

You must prove that there was a shared intention to sell the drugs.

Consider a charge of possession if joint possession cannot be shown.

Question 22

What were the findings of R v Searle?

Answer 22

The Court addressed the issue where a common stock of drugs exists, from which a number of people may draw at will, they may all be in common possession of all of the drug.

The Court held that it is not enough to show the ‘others’ knew the drugs existed or that one person held them, a common pool or joint enterprise must be shown.

Question 23

How would a charge of possession for sale be proven?

Answer 23

It must be shown that the accused personally entertained the pupose of selling. Possession for sale at a suitable opportunity later on is also within the scope.

Question 24

R v Jay - attempted possession

Answer 24

J admitted that he thought it was cannabis and that he had purchased it from another person. On analysis it was found to be hedge clippings.

As the respondent had criminal intent and did an act for the purpose of accomplishing his object he was guilty of an attempt to commit an offence.

Question 25

What four criteria must be shown to prove a charge of possession?

Answer 25

• Knowledge that the drug exists
• Knowledge that it is a controlled drug
• Actual physical control or some degree of control over it
• An intention to possess it

Question 26

Define purpose with regard to S6(1)(e)

Answer 26

Aim or intention.

The relevant intention on the part of the defendant is to supply a controlled drug to others in one of the ways specified in 6(1)(c), (d), or (e).

Question 27

Discuss intent and state the leading case law related to this area.

Answer 27

There must be an intention to commit the act and secondly, an intention to get a specific result.

Deliberate act:“Intent” means that the act or omission must be done deliberately. The act or omission must be more than voluntary or accidental.

Intent to produce a result: The second type of intent is an intent to produce a specific result.

Case law: R v Collister.

Question 28

How do you prove intent in drugs cases? (3 bullet points)

Answer 28

• Admissions
• Circumstantial evidence (packaging, scales, cash, tick lists etc
• The statutory presumption under S6(6)

Question 29

What does S6(6) say regarding statutory presumption?

Answer 29

That a person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in ss(1)(c), (d), or (e) if he or she is in possession of the controlled drug in an amount, level, or quantity at or over which the controlled drug is presumed to be for supply.

Question 30

What standard of proof is required by defence to show their client did not possess drugs over the presumptive amount for supply?

Answer 30

Balance of probabilities

Question 31

If the amount of drugs found is under the presumptive level, what other evidence may be available to prove otherwise?

Answer 31

• The environment in which the drugs were found
• The way in which they were packaged
• The suspect’s admissions
• Presence of large amounts of money or ‘tick-lists’ showing sales.

Question 32

R v Hooper - charging someone with a Class C dealing offence.

Answer 32

R v Hooper:

A charge should be as specific as the evidence on which it is based.

Question 33

R v Tracy

Answer 33

R v Tracy:

Where the particular purpose for possession cannot be proved or is uncertain, the charge should be drafted in the alternative, eg ‘in possession of a Class C controlled drug for a purpose specified in paragraph (d) or paragraph (e) of ss(1) of S6 of MODA 1975’.

Question 34

How does R v Paterson differ from Tracy?

Answer 34

That Tracy’s formula can only be inferred when it cannot be proved otherwise or is uncertain or subject to doubt. Where there is no evidence of supply or intended supply to any person under 18 years, the charge should use the words, “for the purpose of sale”.

Question 35

R v Donald - the difference between possession for supply and a mere custodial role

Answer 35

The practical consequences of actions taken to distribute the drug are of more weight than technical questions as to changes of ownership.

Question 36

List the presumptive amounts under Schedule 5 of MODA

Answer 36

• Heroin - 0.5 grams
• Cocaine - 0.5 grams
• LSD - 2.5 milligrams/25 flakes tabs etc
• Meth - 5 grams
• MDMA - 5 grams/100 flakes etc
• Cannabis resin and extract (oil) - 5 grams
• Cannabis plant - 28 grams or 100 or more cigarettes

Question 37

What is the presumptive amount for a drug not specified?

Answer 37

56 grams