Possession of Controlled Drugs- the Law

Introduction

Drug possession cases are some of the most common offences that come before the Courts. As a Criminal Barrister of over 20 years’ experience, I have an enormous amount of experience in dealing with case such as these. I understand that these offences are often regarded as ‘minor offences’ but the effects upon individuals accused or convicted can be significant. These repercussions include reputational damage, adverse publicity, and the effect upon the careers of professionals for who need to declare convictions of this sort to their professional regulators or employers. The last of these can be very serious for any client as it can put their livelihood in jeopardy.

In this article, I will examine the law surrounding the possession of controlled drugs. In a further article, I examine the defences to these offences.

What is a Controlled Drug?

The legislation that largely covers drug offences is the Misuse of Drugs Act 1971 (“MDA”) and most offences relating to “controlled drugs” are within the MDA 1971.

Most controlled drugs are well known to all, these include drugs such as:

• Cannabis
• Cocaine
• Heroin
• Amphetamine (speed)
• MDMA
• LSD

There are however many others, including some drugs that many people may regard as legal such as ‘diet pills’ and opioid painkillers that are legal in other jurisdictions. The MDA 1971 defines “controlled drugs” as any “substance or product” that is specified within its Schedule 2 or subject to a “temporary class drug order” (“TCDO”).

It is for the prosecution to prove that the drug in question was a “controlled drug” at the time of the alleged offence.

What is meant by “Class A”, “Class B” and “Class C” drugs?

Schedule 2 of the MDA 1971 divides the drugs into the three classes: A, B and C. The purpose of this is twofold. Firstly, it is to identify what the maximum statutory penalty would apply to the offence upon conviction and secondly, to reflect the relative harm of that drug. Class A is considered the most serious, followed by class B then class C. In the majority of cases, a prosecution will be pursued if the drug involved is class A. If a drug were subjected to a TCDO then it would be considered as a class B drug when determining the penalties that would apply to a conviction relating to that drug.

What charges relate to “Controlled Drugs”?

There are many different offences that could be charged in relation to controlled drugs, for example possession, supply, production, and importation offences. In this article, I am focussing only on:

• Possession of a controlled drug; and
• Possession with intent to supply a drug.

Both offences are charged under the MDA 1971. For the first, it is Section 5(1) and the second it is Section 5(3).

If someone is charged with the possession only offence, it is triable “either way”. This means that it can be heard either in the Magistrates Court or the Crown Court. The same applies to a possession with intent to supply offence in most situations. However, the exception is when the accused has previously been convicted of two previous class A drug trafficking offences under Section 313 of the Sentencing Code. If that is the case, then the office is triable only on indictment. This means that it can only be heard in the Crown Court. I will discuss this further within “sentencing” below.

What is Possession?

In order to prove that a person is guilty of either of the offences above, the prosecution must prove certain “elements” of the offence to the requisite standard – this is “beyond reasonable doubt”, or so the jury are “sure”. One of these elements is Possession. 

Possession will be found in a case where the prosecution can prove that the accused was unlawfully in physical possession or in control of any substance or product specified in the MCA 1971, as I have described above, and had knowledge of possession of the item. This is even if the accused did not know that it was a controlled drug.

It is important to note that “control” does not, in these circumstances, equate to physical possession. Section 37(3) of the MCA 1971 makes clear that possession includes any “thing” (drug) that is subject to his control, even things that are in the custody of another person. Examples of possession in these circumstances could be leaving the drugs at your house or in your car, or leaving the drugs with an associate or friend. In the case R v Maginnis [1987] AC 303 drugs were found within the defendant’s car, and this amounted to possession. Possession can also be found when drugs are posted. For example, in the case of Peaston (1978) 69 Cr App R 203 the defendant ordered drugs which were posted to his address. Police found the envelope at his home before he knew they had arrived. The court held that possession of the drug began when it arrived through the letter box of the house.

Possession with intent to supply is a little more complex. Firstly, the prosecution must prove that the defendant is in possession of the drugs. Secondly, the prosecution must prove an intent to supply. Proving an intent to supply can be done in many ways. Sometimes the sheer volume of the drugs possessed is enough that the prosecution will say that it is more than a person can reasonably be expected to have for personal use. It is then said that there must therefore be an intent to supply some or all of the drugs to others. Otherwise, the prosecution can rely upon witness evidence, text messages, the division of the drugs, the possession of ‘tick lists’, drug supply paraphernalia, or a myriad of other methods to show that the drugs were not just for personal use and were intended for supply.

Perhaps unexpectedly, the concept of supply does not require payment or reward. Supply can occur without receiving anything at all in return.

The Crown Prosecution Service define supply as occurring when:

“the drug is supplied if the recipient is enabled to apply the thing handed over to purposes for which he desires or has a duty to apply it. A return of drugs to the original supplier would be a supply.”

In other words, drugs are “supplied” if they are provided to someone else because they want it or because they require it for their own or others needs or wants. This can be illustrated by the case I mentioned earlier, R v Maginnis [1987] AC 303. The defendant was in possession of the drugs which his friend had given him, and he was to return later. The court held that handing the drugs back to the friend amounted to supply. The relevant wants and needs were also satisfied.

The concept of possession can seem simple but is in fact legally complicated. It is often worthwhile taking specialist legal advice if this is a matter in issue. 

Possession of Controlled Drugs sentencing

When convicted of an offence of possession of a controlled drug, the relevant class (or classes) of the Drug will be outlined to enable the judge to apply the sentencing guidelines for the offence.

Possession of controlled class A drug could result in a maximum of seven years’ custody. It is a maximum of five years’ custody for class B, and two years’ custody for class C.

The maximum sentences relating to possession with intent to supply are much more severe. For class A it is life imprisonment, for class B and class C it is 14 years’ custody.

When someone is convicted of their third class A drug trafficking offence, then Section 313 of the Sentencing Code applies. Several things must be satisfied by the prosecution:

“(a) a person is convicted of a class A drug trafficking offence (“the index offence”) committed on or after 1 October 1997,
(b)when the index offence was committed, the offender—
(i)was aged 18 or over, and
(ii)had 2 other relevant drug convictions, and
(c)one of the offences to which those other relevant drug convictions related was committed after the offender had been convicted of the other.”

If this is the case, the court must impose a custodial sentence of at least seven years. This is unless the defence advocate can convince the court that there are particular circumstances, which

“(a) relate to any of the offences or to the offender; and (b) would make it unjust to do so in all the circumstances.”

Conclusion

As outlined above, an offence relating to possession of controlled drugs (with supply or otherwise) can result in a serious penalties upon conviction, with severe consequences if someone is accused of a third class A offence. In those circumstances it is often wise for defendants to seek skilled and experienced representation. Quentin Hunt is a Criminal Defence Barrister who specialises in dealing with drug charges and has over 20 years’ experience in dealing with drug cases. He has a reputation for being instructed for professionals and others who have a large amount to lose should they be found guilty of such an offence.

Quentin accepts instructions either through solicitors or directly from members of the public. If you find yourself accused of such an offence you may contact Quentin for a free, no obligation conversation about your case.