Controlled Drugs

Drugs are "controlled drugs" if they are specified as being of Class A, B or C.

 

Offences

Possession of Controlled Drug

Evidential and Charging Considerations

The offence of possession of a controlled drug is committed when a person is unlawfully in physical possession or in control of any substance 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.

 

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:

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• 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.

 

In deciding whether a defence is made out, the court will have regard 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.

• The 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

Evidential and Charging considerations

Supply

Supplying includes distributing (section 37(1) of the Act) and does not require proof of payment or reward. A return of drugs to the original supplier would be supply.

 

Possession with intent to supply

The intent must relate to a future supply of controlled drugs. If the evidence points to past supply, a charge of supplying is more appropriate.

 

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.

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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 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 in the case.

• Extravagant lifestyle, but only when that is of probative significance to an issue in the case.

 

Offering/being concerned

In addition to the supply of a controlled drug, section 4(3)(a)-(c) of the Act creates offences of offering to supply, being concerned in the supply and being concerned in the making of an offer to supply.

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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.

 

Importation Offences

Section 170(1) of the Customs and Excise Management Act 1979 (CEMA) states:

"If any person ...

 1. 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

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 2. 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 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
 

b. 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."

 

Production Offences

Evidential and Charging considerations

An offence of production is committed when a suspect has some identifiable participation in the process of producing a controlled drug, by manufacture, cultivation, or any other method.

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An offence of being concerned in the production of a controlled drug requires:

• Evidence that a controlled drug was produced; and

• Evidence of some link between the suspect and the production process, (for example providing suitable premises or equipment); and

• Evidence that the suspect knew that a controlled drug was being produced.

  

Offences for occupiers or managers of premises

An occupier offence should be charged when the suspect is the occupier of the premises concerned, or is involved in its management.

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A suspect is an "occupier" if, whatever his legal status, he has a degree of control which would enable the exclusion of other people.

 

A suspect is concerned in the management of premises if he runs them, organises them or plan the running of them.

 

The fact that the suspect is trespasser or squatter will not be a defence.

 

The suspect must knowingly permit (wilful blindness may be sufficient, but not mere suspicion), or suffer the taking place on those premises, of either the:

• production or attempted production of a controlled drug; or

• supply or attempted supply or offer to supply a controlled drug; or

• preparing of opium for smoking; or

• smoking of cannabis, cannabis resin or prepared opium.

 

County Lines

'County Lines' involves the exploitation of vulnerable young people and adults by violent gang members in order to move and sell drugs across the country.

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The National Crime Agency has identified that there is growing evidence of city-based organised crime gangs extending their drug dealing activity into new areas, many of which are coastal towns. The gangs recruit vulnerable people, often children, to act as couriers and to sell drugs.

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'County Lines' operates by gangs from cities, in particular London, introducing a telephone number in a new area to sell crack and heroin directly at street level. Potential buyers telephone the number and local runners are dispatched to make deliveries via a telephone 'relay or exchange' system. The 'runners' are invariably children, often boys aged 14 to 17 years, who are groomed with money and gifts and forced to carry out day to day dealing. Runaway and missing children are also used by gangs to expand inner city drugs empires into county towns. Children as young as 11 years of age have been reported as being recruited into the highly sophisticated gangs.

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Gang members enter into relationships with young women in order to secure a location for drugs to be stored in the new area. In addition, violence is used against drug users to coerce them to become runners, enforce debts, and use their accommodation as an operating base.

 

Maximum Penalties

Possession of a controlled drug

Possession of a controlled drug is an either way offence. The maximum penalty depends on both the trial venue and the class of drugs.

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Magistrates' Court

• Class A drug: £5000 fine and/or 6 months' imprisonment

• Class B drug: £2500 fine and/or 3 months' imprisonment

• Class C drug: £1000 fine and/or 3 months' imprisonment

 

Crown Court:

• Class A drug: Unlimited fine and/or 7 years' imprisonment

• Class B drug: Unlimited fine and/or 5 years' imprisonment

• Class C drug: Unlimited fine and/or 2 years' imprisonment

 

Possession with Intent to Supply

Possession of a controlled drug with intent to supply it is an either way offence. The maximum penalty depends on both the trial venue and the class of drug.

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Magistrates' court:

• Class A drug: £5000 fine and/or 6 months' imprisonment

• Class B drug: £5000 fine and/or 6 months' imprisonment

• Class C drug: £2500 fine and/or 3 months' imprisonment

 

Crown Court:

• Class A drug: Unlimited fine and/or life imprisonment

• Class B drug: Unlimited fine and/or 14 years' imprisonment

• Class C drug: Unlimited fine and/or 14 years' imprisonment

 

Supplying Controlled Drugs

Supplying a controlled drug is an either way offence. The maximum penalty depends on both the trial venue and the class of drug.

 

Magistrates' court:

• Class A drug: £5000 fine and/or 6 months' imprisonment

• Class B drug: £5000 fine and/or 6 months' imprisonment

• Class C drug: £2500 fine and/or 3 months' imprisonment

 

Crown Court:

• Class A drug: Unlimited fine and/or life imprisonment

• Class B drug: Unlimited fine and/or 14 years' imprisonment

• Class C drug: Unlimited fine and/or 14 years' imprisonment

 

Importation or Exportation of Drugs Supplying Controlled Drugs

Importing or exporting a controlled drug is an either way offence. The maximum penalties are set out in Schedule 1 of CEMA 1979.

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Producing Controlled Drugs/Cultivating Cannabis

Producing a controlled drug and cultivating cannabis are either way offences. The maximum penalty depends on both the trial venue and the class of drug.

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Magistrates' court:

• Class A drug: £5000 fine and/or 6 months' imprisonment

• Class B drug: £5000 fine and/or 6 months' imprisonment

• Class C drug: £2500 fine and/or 3 months' imprisonment

 

Crown Court:

• Class A drug: Unlimited fine and/or life imprisonment

• Class B drug: Unlimited fine and/or 14 years' imprisonment

• Class C drug: Unlimited fine and/or 14 years' imprisonment

(The penalties for cultivating cannabis under s.6 of the Act are identical to those shown above for producing a Class B controlled drug.)

 

Occupier Offences

Occupier offences are either way offences. The maximum penalty depends on both the trial venue and the class of drug.

 

Magistrates' court:

• Class A drug: £5000 fine and/or 6 months' imprisonment

• Class B drug: £5000 fine and/or 6 months' imprisonment

• Class C drug: £2500 fine and/or 3 months' imprisonment

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Crown Court:

• Class A drug: Unlimited fine and/or 14 years' imprisonment

• Class B drug: Unlimited fine and/or 14 years' imprisonment

• Class C drug: Unlimited fine and/or 14 years' imprisonment

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Drugs offences are never straightforward. Good legal advice is essential at an early stage, book an appointment or contact me.

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