Unlawful possession of a controlled drug Flashcards
Q: What is the law on possession of a controlled drug?
S5(2) 1971 Act
Subject to section 28 of this Act and to subsection (4) below, it is an offence for a person to have a controlled drug in his possession.
Q: What type of offence is possession of a controlled drug?
Either way offence.
Class A- 7 years imprisonment
Class B- 5 years imprisonment
Class C- 2 years imprisonment
Q: What are the 2 types of specific defence under the 1971 Act?
Subsection s5(4) provides a specific defence to unlawful possession.
In any proceedings for an offence of unlawful possession in which it is proved that the accused had a controlled drug in his possession, it shall be a defence for him to prove-
(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 deliver it to the custody of a person lawfully entitled to take custody of it.
(b) That knowing or suspecting it to be 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.
Q: What does (a) provide for?
The purpose of taking possession of the controlled drug must be to prevent another from committing an offence in connection with that drug.
Eg: where a parent finds their child in possession of what appears to be a controlled drug and takes all reasonable steps either to destroy the drug or to take it to a police officer or GP.
Q: What does (b) provide for?
Envisages circumstances where someone finds what they suspect to be a controlled drug and takes possession of it solely with the purpose of delivering it to someone lawfully entitled to possess it.
Eg: in my garden I find a packet of white powder in my flowers. I take it to the police station to hand it in.
Q: Can duress be used as a defence?
Duress of circumstances does not provide a defence to any offence under the Misuse of Drugs Act.
Q: What is the general defence under s28 of the 1971 Act?
Available for unlawful possession, unlawful production, unlawful supply, PWITS and unlawful cultivation of cannabis.
S28(2)- 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 some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged.
S28(3)- Where in any proceedings for an offence to which this section applies it is necessary, if the accused is to be convicted of the offence charged, for the prosecution to prove that some substance or product involved in the alleged offence was the controlled drug which the prosecution alleges it to have been, and it is proved that the substance or product in question was that controlled drug, the accused—
(a) shall not be acquitted of the offence charged by reason only of proving that he neither knew nor suspected nor had reason to suspect that the substance or product in question was the particular controlled drug alleged; but
(b) shall be acquitted thereof—
(i) 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; or
(ii) if he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies
Q: Summary of s28 defence
It focuses on 3 distinct situations:
1. A lack of knowledge by D of some fact, which is alleged by the prosecution
2. A general lack of knowledge about the drug in question
3. A conditional belief held by D about the drug in question
Q: Summary of 1. Defence s28(2)
Allows a defence where D did not know, suspect or have reason to suspect the existence of some fact which is essential to proving the case.
Eg: Bill gave Matthew a bottle of tablets. Matthew believes these tablets are aspirins but they are codeine (Class B). Matthew does have possession of a controlled drug- he knows he has something in his custody. But Matthew’s belief that it was aspirin rather than a controlled drug will give him a defence provided he can adduce specific evidence to establish that he did not believe, suspect or have reason to suspect that the tablets were a controlled drug.
Matthew has to raise the defence and the prosecution have to prove it does not apply.
Q: Summary of 2 and 3 Defence s28(3)(a) and (b)
Prevents defendants from claiming a defence simply because what they thought was one type of controlled drug was in fact another type of controlled drug.
Eg: it would not be enough for Matthew to prove he had possession of a different type of controlled drug to the one alleged by the prosecution.
To be acquitted, Matthew must also prove one of two things:
- Either that he neither believed nor suspected nor had reason to suspect that the thing in question was a controlled drug at all; or
- That he believed the thing was a controlled drug which he was legally entitled to possess
