Serious Crime and Other Offences - Misuse of Drugs

Question 1

Give some examples of Class A, B and C drugs.

Answer 1

Class A: Ecstasy, heroine, cocaine, crack cocaine, magic mushrooms, crystal meth, LSD.

Class B: Cannabis leaves, cannabis resin, spice, mephedrone, amphetamines and barbiturates.

Class C: Khat, tranquillisers, anabolic steroids and some painkillers.

Question 2

What are temporary class drug orders?

Answer 2

The Home Secretary has the power, under the Misuse of Drugs Act 1971, to make any drug (likely to be misused or could have harmful effects) subject to temporary control (up to 12 months) if the following two conditions are met:

1) Not already controlled under the Act as Class A, B or C drugs.
2) The ACMD (Advisory Council on the Misuse of Drugs) has been consulted and determined it should be made.

Question 3

Offences committed under the Misuse of Drugs Act 1971 in relation to a temporary class drug are subject to what maximum penalties?

Answer 3

Indictment – 14 years and an unlimited fine.

Summarily – 6 months and a £5,000 fine.

Question 4

How to establish joint possession?

Answer 4

Mere knowledge of the existence of drugs is not enough to prove an allegation of joint possession.

It is necessary to show that each defendant participated in the offence charged.

The prosecution may have to prove either that the drugs have come from a “pool” (R v Strong).

Question 5

How does quantity of a substance affect possession?

Answer 5

May be so small that the defendant could not possibly have known about it; therefore it could not be possessed.

Larger quantities may indicate PWIT.

Question 6

Possession of a controlled drug

Answer 6

s5 Misuse of Drugs Act 1971

In order to commit the offence of unlawful possession, a person must unlawfully have a controlled drug in [his/her] possession.

Penalties:

A: Summary offence = 6 months, indictable offence = 7 years.
B: Summary offence = 3 months, indictable offence = 5 years.
C: Summary offence = 3 months, indictable offence = 2 years.
Unlawful possession of cannabis can also be dealt with by issuing a PND for £90.

Question 7

Certain defences can be raised by those accused of being in possession of controlled drugs….

Answer 7

s5(4) of the Misuse of Drugs Act

(a) That, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of preventing another from committing or continuing to commit an offence in connection with that drug and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to destroy the drug or to deliver it into the custody of a person lawfully entitled to take custody of it; or
(
b) That, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of delivering it into the custody of a person lawfully entitled to take custody of it and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to deliver it into the custody of such a person.

Question 8

Supplying explained…

Answer 8

Needs to be more than mere transfer of physical control from one person to another (R v Maginnis).

Other person being given it must derive some BENEFIT from being given the drug.

Question 9

Can injecting others with that person’s own controlled drug amount to ‘supplying’?

Answer 9

No- but it may amount to an offence of ‘poisoning’ under s23 of the Offences Against the Persons Act 1861.

Question 10

Supplying a Controlled Drug

Answer 10

s4(3) of the Misuse of Drugs Act

It is an offence to unlawfully…

(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

Other person being given it must derive some BENEFIT from being given the drug.

Penalties:

A: Summary offence = 6 months, indictable offence = Life imprisonment.
B: Summary offence = 6 months, indictable offence = 14 years.
C: Summary offence = 3 months, indictable offence = 14 years.

Question 11

Offering to supply: does it have to be genuine?

Answer 11

No – access, nor possession needs to be in place, offence is still committed even if it was not a ‘real offer’.

Question 12

Possession of a controlled drug with intent to supply

Answer 12

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

It is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another.

Penalties:

A: Summary offence = 6 months, indictable offence = Life imprisonment.
B: Summary offence = 6 months, indictable offence = 14 years.
C: Summary offence = 3 months, indictable offence = 14 years.

Question 13

Suppling Articles for Administering or Preparing Controlled Drugs

Answer 13

s9A of the Misuse of Drugs Act 1971

(1) A person who supplies or offers to supply

any article which may be used or adapted to be used (whether by itself or in combination with another article or other articles)…

…in the administration by any person of a controlled drug to himself or another,…

…believing that the article (or the article as adapted) is to be so used in circumstances where the administration is unlawful, is guilty of an offence.

(2) It is not an offence under subsection (1) above to supply or offer to supply a hypodermic syringe or any part of one.

Question 14

Do hypodermic syringes count as part of s9A of the Misuse of Drugs Act 1971?

Answer 14

No- or any part of one.

Question 15

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 15

Importation of controlled drug (s 3(1))
Production of a controlled drug (s 4(2))
Supplying a controlled drug (s 4(3))
Possession with intent to supply (s 5(3))
Cultivation of Cannabis (s 6)

Question 16

Production of controlled drugs

Answer 16

s 4(2) of the Misuse of Drugs Act 1971

(a) It is an offence to produce a controlled drug (or convert it from one class A to another) or
(b) to be concerned in the production of such a drug (doesn’t count just letting people use your kitchen for example).

Penalties:

A: Summary offence = 6 months, indictable offence = Life imprisonment.
B: Summary offence = 6 months, indictable offence = 14 years.
C: Summary offence = 3 months, indictable offence = 5 years.

Question 17

Cultivation of Cannabis

Answer 17

s6 of the Misuse of Drugs Act 1971

(1) It shall not be lawful for a person to cultivate any plant of the genus cannabis.

Cultivate means things like watering it and feeding it, harvesting it when matured would be classified as production, not cultivation. Doesn’t matter in this offence if person knows its cannabis or not.

Penalties:

Indictment – 14 years and/ or a fine.
Summary – 6 months and/ or a fine.

Question 18

General defence available under sXX of the Misuse of Drugs Act 1971 to a defendant charged with certain drug offences…

Answer 18

s28 Misuse of Drugs Act 1971

It shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of a controlled drug.

Question 19

What are the main exceptions and conditions found in the Misuse of Drugs Regulations 2001?

Answer 19

Reg 4 – sets out which controlled drugs are exempt from main offences of importation/ exportation when they are in medicinal products.

Reg 5 – allowing people with license issued by Secretary of State to produce, supply, offer to supply or have in their possession a controlled drug.

Reg 6 – anyone who is lawfully in possession of controlled drugs to return it to whom they received it from. This includes police in line of duty.

Question 20

Occupier or manager of premises used for controlled drug offences legislation

Answer 20

s8 Misuse of Drugs Act 1971

A person commits an offence if, being the occupier or concerned in the management of any premises, he knowingly permits or suffers any of the following activities to take place on those premises, that is to say—

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

Penalties:

A: Summary offence = 6 months, indictable offence = 14 years.
B: Summary offence = 6 months, indictable offence = 14 years.
C: Summary offence = 3 months, indictable offence = 14 years.

Question 21

What are Community Protection Notices?

Answer 21

Part 4 of the Anti-social Behaviour, Crime and Policing Act 2014

Can be issued by Police, local authority or provider of social housing to prevent anti-social behaviour.

Can be used for a variety of social behaviour including police to deal with places where drug offences take place.

Failure to comply can lead to fines and court orders.

Question 22

Assisting or Inducing Offence Outside United Kingdom

Answer 22

s20 Misuse of Drugs Act 1971

A person commits an offence if in the UK he assists in or induces the commission in any place outside the UK of an offence punishable under the provisions of a corresponding law in force in that place.

The offence must take place.

Penalties:

Indictment – 14 years and/ or a fine.
Summarily – 6 months and/ or a fine.

Question 23

Incitement

Answer 23

s19 Misuse of Drugs Act 1971

It is an offence for a person to incite or attempt to incite another to commit an offence under any other provision of this Act.

Question 24

Importation of controlled drugs

Under what legislation are penalties stated 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 24

s3 Misuse of Drugs Act 1971

Prohibits the import/ export of a controlled drug unless authorised by the regulations under the Act.

Customs and Excise Management 1979 Penalties:

A: Life Imprisonment
B: 14 Years Imprisonment
C: 14 Years Imprisonment

Question 25

What are Travel Restriction Orders?

Answer 25

The Criminal Justice and Police Act 2001 allows courts to impose travel restrictions on offenders convicted of drug trafficking offences and it has determined that a sentence of 4+ years is appropriate.

This means they cannot leave the UK at any time during the period beginning from custody release until the end of the order (minimum is 2 years and no maximum).

Possession of Class A with Intent to Supply is NOT COVERED.

Question 26

Contravening a Travel Restriction Order

Answer 26

s36 Criminal Justice and Police Act 2001

(1) A person who leaves the United Kingdom at a time when he is prohibited from leaving it by a travel restriction order is guilty of an offence.
(2) A person who is not in the United Kingdom at the end of a period during which a prohibition imposed on him by a travel restriction order has been suspended shall be guilty of an offence

Penalties:

Indictment – 5 years and/ or a fine.
Summarily – 6 months and/ or a fine.

Question 27

The Misuse of Drugs Act 1971

Power to search and obtain evidence…
.
.
.
Power to execute a warrant to obtain evidence…

Answer 27

s23 Misuse of Drugs Act 1971

Constable has reasonable grounds to suspect that any person is in possession of a controlled drug.
Can detain for the purpose of the search.
Search any vehicle or vessel that the constable suspects could have drugs in it.
Cause that vehicle to stop for the purpose of a search.
.
.
A drugs warrant under s23 is now issued for a period of 1 month.
The magistrate must be satisfied there are reasonable grounds for suspecting controlled drugs are present.
If not executed within that month then the officer must return to court.
It must specify what the officer wants to search specifically (premise only or persons on it).

Question 28

Example: If A has controlled drugs in his pocket, which he intends to supply to someone else, and hands the drugs to B and says “HOLD ON TO THESE DRUGS AND I WILL GIVE YOU £20’ B then hands them back and collects the £20. Who is guilty of supplying a controlled drug?

Answer 28

A person supplies a drug if by doing so they benefit the person to whom it has been given

B has a benefit from being given the drugs (£20)
A has a benefit from the drugs being given back (the benefit to sell them in the future)

Both supply the drugs.

Question 29

S.5 Misuse of Drugs Act 1971 - Drug is a fungus containing psilocin

Answer 29

Where the controlled drug involved is a fungus containing psilocin (a Class A drug) or an ester of psilocin (commonly known as magic mushrooms), possession will not be unlawful in certain circumstances. In summary, those circumstances are generally where the fungus is growing uncultivated and it:

• is picked by a person already in lawful possession of it (e.g. the landowner on whose land the mushrooms are growing) for the purpose of delivering it (as soon as is reasonably practicable) into the custody of a person lawfully entitled to take custody of it and it remains in that person’s possession for (and in accordance with) that purpose; or
• it is picked by anyone either for the purpose of delivering it (as soon as reasonably practicable) into the custody of a person lawfully entitled to take custody of it or destroying it (as soon as is reasonably practicable) and it is held for that purpose.

Question 30

Section 4 Misuse of Drugs Act 1971 - Production of a Controlled Drug

Answer 30

• produce means producing by manufacture, cultivation or any other method
• harvesting, cutting and stripping a cannabis plant is producing
• the addition of adulterants or bulking agents can amount to the production of a controlled drug
• does not count when someone is allowing his kitchen to be used by others producing the drugs