Possession of controlled drugs

What can you do if you are charged with possession of a controlled drug? Although the law is relatively strict in respect of possession of drugs there are many technical aspects of the law that can lead to a Not Guilty disposal. Early specialist legal advice is essential to see how the law applies to your case. Below is a basic summary of the law as it stands.

The law states that it is unlawful for a person to have “a controlled drug” in his possession.  One of the first questions that a lawyer would quickly confirm the answer to would be whether the drug that has been found is in fact “a controlled drug” that is outlined in Schedule 2 to the Misuse of Drugs Act 1971; because, if a drug is not listed in this Schedule, you are not in possession of anything illegal.

One important and sometimes overlooked issue is that it is the job of the Prosecution to prove that the substance you are in possession of is a controlled drug.  This may be by using an expert to analyse the drug that has been found; however, expert evidence is not required in all cases.  The law simply says that the Prosecution must establish the identity of the drug with sufficient certainty, and the admissions of a person as to his/her knowledge of the substance (e.g. “In my experience it was cannabis”) may in some circumstances be sufficient to identify what the substance is.

There are two elements to being in possession of drugs a physical element and a mental element, and both are required in order for a Court to find you guilty of being in possession.  If one, the other or both cannot be proved by the prosecution you will be found Not Guilty. The physical element involves the Prosecution proving that the drugs are in your custody or subject to your control (this last one could include a situation where someone else was looking after drugs for you and the drugs were still under your control; however, in these circumstances, the Prosecution would probably consider charging you with the more serious charge of supplying drugs to another).

If a person were to order a controlled drug on the internet (e.g. Mephedrone, also known as “M-CAT” or “meow meow” – this was categorised as a Class B drug on 16 April 2010), he would be deemed to be in possession of that drug as soon as it arrived through their letter box (it may also be possible for someone to be prosecuted for attempting to possess the drug, before it even arrived).

The question of custody and control is by no means as straightforward as it appears.

The second element of possession is the mental element. To be found guilty of possessing drugs, a person must know that he is in possession of something that turns out to be drugs. The person does not have to know that what they have on them is actually an illegal drug - they only have to be aware that they have something on them (that is later found to be an illegal drug).

A person remains in possession of something even if he has forgotten about it. However, a person cannot possess something of which he is completely unaware.

Defences to possession of drugs

It is a specific defence if you neither believe nor suspect, nor have reason to believe, that the substance you are in possession of is an illegal drug (e.g. if you thought you were carrying a bag of sweets and it turned out that the bag contained cocaine). If you raise this defence, it is for the Prosecution to disprove it to the criminal standard (beyond reasonable doubt). It would not be a defence if you thought that the bag contained one illegal drug and it turned out to contain a different illegal drug

It would also be a defence if you did not know you had anything on you whatsoever (you cannot possess something if you are unaware you have it), e.g. if someone were to plant drugs in your bag.  If the quantity of drugs found is very small, it may also support an assertion that you did not know about their presence. Common cases that involve this specific defence are where drugs are found in someone's car, in a case such as this the prosecution must prove that they knew that the drugs were in the car.

Another defence is if you took possession of the drugs to prevent someone else from committing a criminal offence and that, as soon as possible after taking possession of them, you took all such steps as were reasonably open to you to destroy the drugs or deliver them into the custody of a person lawfully entitled to take custody of them (e.g. a police officer). Similarly, it is a defence if you took possession of the drugs for the purpose of delivering them into the custody of a person who was lawfully entitled to take custody of them and that, as soon as possible after taking possession, you took all such steps as were reasonably open to you to deliver them into the custody of such a person. In practice, this defence is rarely used.

Sometimes it is raised that the quantity of the drug found is so small that, in reality, it amounts to nothing.  This is not a specific defence and will rarely succeed as a line of defence – if the drug is visible, tangible and measurable, you can be in possession of it.

There is no defence of necessity available if you are found in possession of drugs, e.g. you cannot possess cannabis for the purpose of relieving pain.

The possession of drugs is an either way offence, which means that, if you are charged with possession, your case can be heard either in the Magistrates’ Court or the Crown Court. In practice, most people who are charged with possessing drugs (as opposed to the more serious offences of possession with intent to supply, supply, production or cultivation) have their cases dealt with in the Magistrates’ Court. However, in any either way case, you are entitled to elect trial by jury. It is therefore important that specialist advice is taken on this issue at the earliest possible stage, to ensure that you are fully informed about all the options and their associated risks and benefits.

The penalties for possessing drugs vary widely depending on whether you are in possession of a Class A drug, Class B or Class C, and for this reason it is also important that specialist advice is sought.

If you have been arrested, charged or are in Court for an offence of possession of controlled drugs and would like a free, no obligation telephone conversation with an experienced specialist in cases of this type contact Quentin Hunt.