Defences to Possession of Drugs offences
In a previous article, I examined the law in respect of offences relating to the possession of controlled drugs under the Misuse of Drugs Act 1971 (“MDA”). Specifically, offences of possession under Section 5(1) and possession with intent to supply under Section 5(3).
There are a myriad of possible defences available to drugs possession offences. In this article, I will explore the most common possible defences to the same.
Defences to charges of Possession of drugs
In order to convict someone of a drugs possession offence, the prosecution must prove that the accused was unlawfully in physical possession or in control of the drug, (this is the physical element). They must also prove that the accused had knowledge of possession of the item (this is the mental element). This applies even if the accused did not know that it was a controlled drug.
A person cannot be found guilty of a possession offence (with or without intent to supply) without the requisite knowledge.
It is, therefore, a complete defence if the accused can show one of the following:
1. They had no knowledge, suspicion, or reason to suspect that they were in possession of the drug; or
2. They had no knowledge, belief or suspicion, or reason to suspect that the substance in their possession was a controlled drug; or
3. They believed that the product they held was a controlled drug, which they believed they held legally, but they possessed another drug that was not legal to possess. Had it been the drug they thought it was, they would not have been committing an offence at that time they committed it.
These three defences can be found at Section 28 of the MDA 1971.
It is important to note that knowledge of possession is not reliant upon memory. If a person possesses drugs but subsequently forgets that they have the drugs then the law regards them as still being in possession of the drugs. So, a defendant that forgets that he has a wrap of cocaine in his wallet still has possession of the cocaine despite the fact that he had forgotten about it. See R v Martindale (1987) 84 Cr. App. R. 31, CA.
It is the task of the defence advocate to call the relevant evidence of the lack of knowledge, belief or suspicion, or held belief of a legal drug, relating to the three defences above. It is then for the prosecution to prove, beyond reasonable doubt (to make the jury “sure”), that the defence does not apply.
For example, I represented a medical professional who was stopped by Police while driving his motor vehicle. During a search of the vehicle, a quantity of cocaine was discovered in the glove box of the case. We put forward the defence that the defendant’s brother, a drug user, regularly used the car and that the drugs must have belonged to him and that the defendant had no idea that the drugs were present in the car. The defendant was acquitted.
Amount of the drug possessed
The amount of the drug possessed is of limited relevant. The prosecution does not have to prove that there was an amount that would be of use to the defendant, they only need to prove that there was an amount of the drug, no matter how small in the possession of the defendant. For example, I represented an individual who was in possession of ‘baggie’ of heroin with only small amounts of dust in the bottom of the bag. The defendant was a drug user and accepted that he had used heroin from the bag therefore he was in possession of the heroin dust within the bag and the offence was made out.
Of course where amounts are trivial and the drugs cannot be easily seen then the issue of knowledge will often arise which is a defence.
Consumption of the drugs
Once drugs are consumed then they are no longer deemed to be in possession as their character has been altered. Therefore the defendant who swallows a drug rather than allowing it to be found by police cannot be proven to be in possession even where traces of drugs are found in urine samples see Hambleton v Callinan  2 Q.B. 427.
Defences to Possession with intent to supply
In order to convict a person of possession with intent to supply the Court must first be sure that the person was in possession of the drug. Therefore, all of the factors above relating to possession also apply to possession with intent to supply.
Obviously, there must be an intent to supply the drug to another in order to prove this offence. Therefore, if the prosecution cannot prove that intent then the offence cannot be made out. This is a common defence- that the drugs possessed were only for personal use. This must be disproved by the prosecution beyond reasonable doubt.
It is of note that the prosecution will use many avenues to try to prove that there was such an intent. Example include:
- Evidence of possession of drug dealing paraphernalia;
- Evidence of messages from and to the defendant in the language of drug dealers. This is expert evidence and is often given by specialist police officers with experience in the field and relates to the ‘decoding’ of text and other messages that are said to relate to drug supply;
- Evidence that a specific amount of drugs would so excessive as not to be suitable for personal use; see R v Hodges  EWCA Crim 290;
- Evidence of possession of cash or an extravagant lifestyle that cannot be explained by legitimate means (this is legally complicated and specialist legal advice is recommended should this issue arise in a case).
Possession of Cannabis defences
There are different considerations to charges relating to cannabis that, whilst not a defence, would mean that the outcome is not a criminal conviction.
A person can be given a warning in circumstances where they are found in possession of a small amount of either cannabis, that is clearly only an amount for personal use. The person must admit both the physical and mental elements of the offence, which I discussed in my previous article, and the cannabis will be confiscated.
The warning would be recorded on local systems, but it is not a criminal conviction and it should not be regarded as an aggravating factor should the person be sentenced for subsequent offences. The same applies for possession of small amount of khat.
Two scenarios may amount to further defences. First, if the accused can prove that they only had possession of the controlled drugs because they intended to destroy the substance, as soon as was practicable. Second, if the accused can prove they held the controlled drugs only to give them to someone who had legal authority to possess them.
I represented a lady whose garden was used for the storage of class A drugs by drug dealers. Her taking of the drugs to the police station in order to hand them in was not found to be possession of the drugs.
It is important to note that the defence of “necessity” cannot be argued to any of the offences under the MDA 1971. This has been explored by the courts several times in relation to the possession or supply of cannabis for the alleged purpose of relieving pain. The so-called benefits have not been found to outweigh the legislation Attorney-General’s Reference (No. 2 of 2004)  EWCA Crim 1415. This is controversial and some, including myself, regard the law in this area to be wrong.
It would be virtually impossible to outline a complete list of all the defences available to drug possession offences in one article. In addition to the above, the general defences of automatism, duress, insanity, mistake or self-defence may apply. This is, however, entirely dependent on the facts of the case. It is essential that anyone who is charged of a possession of drugs offence acquires the appropriate representation to raise and argue any applicable defences.
Quentin Hunt is a Criminal Defence Barrister who specialises in dealing with drugs offences, often on behalf of professional or others who have a lot to lose should they be convicted. Quentin accepts instructions through solicitors or directly from members of the public. Should you find yourself accused of such an offence you may contact Quentin for a no obligation conversation about how he may be able to assist in your case.