Drugs are “controlled drugs” if they are specified as being of Class A, B or C, as set out in Parts I, II or III of Schedule 2 to the Act.
Each drug that is individually controlled is specified by reference to its proprietary and/or chemical name (as opposed to a brand name), which can be further described within the Act (like cannabis). Controlled drugs can also be specified as being a drug or the derivative of a drug pertaining to a chemical base and its variations used to bring more than one drug under the legislation.
Proving that a drug is controlled – forensic evidence
It is for the prosecution to prove that a drug is controlled at the time that the offence was committed.
Difficulties are often experienced as a result of the lack of such evidence at an early stage in the case. Subject to specific provisions below, cases which are being committed or transferred to the Crown Court or being tried in the magistrates’ court must have a statement of a suitably qualified person giving evidence of the nature of the drugs in the case.
In a charge of possession, where it is averred that a particular drug is not controlled by virtue of an exception contained in Regulations made under section 7(1)(a) of the Act, the burden of proving that the drug falls outside the exception is upon the prosecution and not the defence. The forensic analyst should deal with the situation clearly if it appears that there is any possibility of the drug falling into an excepted category.
Where the evidence that a substance is a controlled drug is served in the form of a streamlined forensic report (SFR) or analyst’s summary, prosecutors should seek to agree the content of that report or summary by way of formal admission at an early stage in the proceedings.
Possession of controlled drug
The offence of possession of a controlled drug is committed when a person is unlawfully in physical possession or in control of any substance or product specified in Parts I, II or III of Schedule 2 of the Act and had knowledge of possession of the item even if he did not know it was a controlled drug. This includes anything subject to his control, even if it was in the custody of another.
Section 37(3) of the Act provides that possession includes things subject to the defendant’s control, which are in the custody of another.
“Crack” cocaine is a Class A controlled drug, being a “preparation or other product containing a substance” which is a controlled drug (Schedule 2 part 1 paragraph 5 of the Act). It is cocaine for the purposes of the Act.
The Court of Appeal ruled that the prohibition of possession of cannabis did not infringe a defendant’s rights under Articles 8 and 9 of the European Convention on Human Rights.
Defences in section 28 of the act
In relation to offences of possession (with or without intent to supply), production, supply, cultivation of drugs or the opium-related offences, it is a defence for the accused to show that:
- He neither knew, suspected, nor had reason to suspect the existence of some fact that the prosecution is required to prove, for example that he was in possession of the drug.
- He neither believed, suspected, nor had reason to suspect that the substance in question was a controlled drug.
- That he believed the product to be a controlled drug, which had it been that drug, would mean that he would not have been an offence at the time that he committed it.
The defendant only bears an evidential burden in relation to calling evidence that he lacked the requisite knowledge, belief or suspicion – it is for the prosecution to prove by reference to the available evidence that he lacked knowledge, belief or suspicion.
It is the second of the three defences cited above that will be most frequently encountered. In deciding whether the defence is made out, prosecutors may have regards to:
- The credibility of any account given in interview – note the evidential burden on the defendant.
- The circumstances in which the drug was acquired or possessed, including concealment.
- Nature of any packaging.
- Any observations on the defendant prior to him being stopped or arrested.
- If a possession offence is alleged, proximity to the supplier.
- Content of any exhibit – telephone messages, documents, labelling.
- Relevant bad character – including previous non court disposals and informal warnings, if recorded and in an admissible format.
Supply/possession with intent to supply/offering to supply
Supplying includes distributing (section 37(1) of the Act) and does not require proof of payment or reward.
Supply requires more than mere transfer of physical control. 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 R v Panton, TLR 27 March 2001, the Court of Appeal held that the phrase “supply” includes the retention and return of controlled drugs deposited with a custodian “by another person, even if the custodian did not lack of consent to the arrangement.”
Where two people agree to buy drugs for themselves, it is undesirable to charge one who happens to take physical possession of the drugs with the supply of drugs when he distributes the other’s share to him. Although there is technically a supply, it was inevitable that a person convicted on the basis of such a distribution would be dealt with as for simple possession.
Harm caused by supply
If A injects B with a drug belonging to B, A is not supplying a drug in contravention of s.4(1).
However, the following offences under the Offences against The Person Act 1861 may be relevant:
- Section 23: Unlawfully and maliciously administering, or causing to be administered to or taken any poison or other destructive or noxious thing so as to endanger life, thereby inflicting grievous bodily harm. The maximum sentence is 10 years’ imprisonment and the offence is indictable only.
- Section 24: Unlawfully and maliciously administering or causing to be administered to or taken any poison or other destructive or noxious thing with intent to injure, aggrieve or annoy the person taking the substance. The maximum sentence is 5 years imprisonment and the offence is indictable only.
Whether a substance is a noxious thing is a question of fact and degree for the jury. A substance that may be harmless in small quantities but may be noxious in the quantity administered. The meaning of the word is widely drawn. Heroin is a noxious thing and the fact it is administered to a person with a high degree of tolerance is irrelevant.
An intention to injure may depend on the purpose for which the noxious substance was administered. Examples of an intention to injure include: giving a baby methadone to keep it quiet where the child is born addicted because of the mother’s addiction and facilitating the commission of sexual offences.
Evidence of intent to supply
An intention to supply may be proved by direct evidence in the form of admissions or witness testimony, for example, surveillance evidence.
Another method of proving an intention to supply is by inference. Evidence from which intent to supply may be inferred will include at least one or, more usually, a combination of the following factors:
- Possession of a quantity inconsistent with personal use.
- Possession of uncut drugs or drugs in an unusually pure state suggesting proximity to their manufacturer or importer.
- Possession of a variety of drugs may indicate sale rather than consumption.
- Evidence that the drug has been prepared for sale. If a drug has been cut into small portions and those portions are wrapped in foil or film, then there is a clear inference that sale is the object.
- Drug related equipment in the care and/or control of the suspect, such as weighing scales, cutting agents, bags or wraps of foil (provided their presence is not consistent with normal domestic use).
- Diaries or other documents containing information tending to confirm drug dealing, which are supportive of a future intent to supply, for example, records of customers’ telephone numbers together with quantities or descriptions of drugs.
- Money found on the defendant is not necessarily evidence of future supply. It may be evidence of supply in the past but on its own the money is not evidence of a future intent to supply.
- Evidence of large amounts of money in the possession of the defendant, or an extravagant life style which is only prima facie explicable if derived from drug dealing, is admissible in cases of possession with intent to supply if it is of probative significance to an issue.
- Extravagant lifestyle, but only when that is of probative significance to an issue in the case. Evidence of this type is only likely to be admitted by the courts rarely.
An offence of offering to supply can be prosecuted simply by proving the existence of an offer. The prosecution does not have to prove either that the defendant intended to produce the drugs or that the drugs were in his possession. The offer may be by words or conduct.
The offences of being concerned will cover conduct which is preparatory to the actual supply, although the prosecution must prove that a supply, or an offer to supply, has been made.
The defence under section 28 of the Act will not be applicable to the charge of offering to supply as the offence is the making of the offer.
Section 170(1) of the Customs and Excise Management Act 1979 (CEMA) states:
“If any person …
- Knowingly acquires possession of:
iii) goods with respect to the importation or exportation of which any prohibition or restriction is for the time being in force under or by virtue of any enactment; or
- is in any way knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any such goods,
and does so with intent to (removed as irrelevant) evade any such prohibition or restriction with respect to the goods he shall be guilty of an offence under this section and may be detained.”
Section 170(2) of CEMA 1979 provides the “smuggling” offence:
“If any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion
- of any prohibition or restriction for the time being in force with respect to the goods
he shall be guilty of an offence under this section and may be detained.”
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This article is based on public sector information licensed under the Open Government Licence v2.0. The original information can be found here; https://www.cps.gov.uk/legal-guidance/public-order-offences-incorporating-charging-standard