#3085 - Drug Offences - GDL Criminal Law

Introduction

- Misuse of Drugs Act 1971: to regulate possession, production, importation and supply of controlled drugs.

- Controlled drugs.

• s2 MDA 1971: incorporates Schedule 2.

• Schedule 2 MDA 1971: specifies controlled drugs + classifies: affects max. sentence for offences.

  • Class A: e.g. cocaine, ecstasy, opium, heroin, ‘magic mushrooms’.

  • Class B: e.g. amphetamine, cannabis, cannabis resin, codeine.

  • Class C: e.g. valium, GHB, ketamine.

• R v Courtie [1984]: 3 crimes for each offence under MDA – one for each class.

- Modes of trial + punishment.

• s25 MDA 1971: incorporates Schedule 4.

• Schedule 4 MDA 1971: indication of which court offence should be tried in + maximum penalty for each offence (dep. on class of drug).

Offences relating to Possession – s5 MDA 1971.

• s5(2): possession of a controlled drug (simple possession)

• s5(3): possession with intent to supply

• s5(4): specific defences

Possession of controlled drug – s5(2)

• maximum sentence: Class A – 7 years; Class B – 5 years; Class C – 2 years.

- Actus Reus: possession of controlled drug with lack of authorisation.

• possession: physical possession, custody or control.

  • physical control: Warner v MPC [1969], confirmed in R v Boyesen [1982].

    • inc. anything subject to d’s control in custody of another: s37(3).

  • visible, tangible + quantifiable amount (even if too little to use): R v Boyesen.

  • joint possession possible: R v Bland [1988] – d. must have knowledge + some control (but: mere presence + knowledge without encouragement/control insufficient).

• lack of authorisation: s7 + regulations under s7 – burden of proof on defendant.

  • authorisation of certain drugs.

  • authorisation of drugs in certain circumstances: e.g. police after seizing.

  • authorisation of certain people to possess certain drugs: e.g. doctors, vets etc.

- Mens Rea: knowledge of possession.

• (not specified in Act: originally thought to be offence of absolute liability).

• knowledge of possession of item, NOT nature of item: Warner v MPC confirmed by R v Boyesen.

  • can be imputed: e.g. Warner v MPC: d. picked up package containing drugs thinking it contained perfume deemed to have knowledge: should have checked.

  • mistake as to type of drug irrelevant: e.g. Searle v Randolph [1972]: d. picked up cigarette ends not realising they contained some cannabis deemed to be in possession of cannabis.

  • BUT mistaking drug for completely different substance: defence under s28.

    • e.g. R v McNamara [1988]: belief that box contained porn videos, not cannabis.

  • possession of container: strong inference of possession of contents – even if no authority to open + verify (but rebuttable: if s28(3)(b)(i) defence applies).

• possession does not begin until d. aware: R v Boyesen.

• memory irrelevant: R v Martindale [1986]: d. put cannabis in wallet then forgot still possession.

- Specific defences to simple possession: s5(4)

• s5(4)(a): d. took possession to prevent another from committing an offence + took all reasonable steps ASAP to destroy drug/deliver into lawful custody.

  • d. must take positive steps to destroy/deliver: R v Murphy [2003]: burying not enough.

• s4(4)(b): d. took possession to deliver into lawful custody + took all reasonable steps ASAP.

• evidential burden on d.: must prove took all reasonable steps to destroy/deliver drug (assuming same interpretation applies as to s28 defences – from R v Lambert).

Possession with intent to supply – s5(3)

• maximum sentence: Class A – life; Class B & Class C – 14 years (same as supply offences).

- Actus Reus: possession with lack of authorisation – same as s5(2).

- Mens Rea: knowledge (same as s5(2)) + intent to supply.

• crime of specific intent: recklessness not acceptable mens rea.

• intention to supply any controlled drug, not necc. type actually possessed: R v Leeson [2000]: d. thought he was in possession of amphetamine rather than cocaine irrelevant.

  • BUT intent to supply something of completely different nature: defence under s28.

  • (type: relevant to sentencing)

• joint possession with intent to supply: R v Downes [1984]: if defendant has joint possession (knowledge + control) + intentionally aided/encouraged co-possessor to supply drug.

• supply: broad meaning – see below.

- Evidence of intent to supply (N.B. if ev. of actual supply, would be tried as supply offence).

• quantity: if suggests more than personal use – e.g. R v Leeson.

• unexplained extravagant lifestyle: R v Morris [1995]: admissible only if of probative significance to case – determined by judge.

  • false explanation by d.: becomes part of evidence against d.

Offences relating to Supply – s4(3) MDA 1971.

• s4(3)(a): supply or offer to supply

• s4(3)(b): being concerned in supply

• s4(3)(c): being concerned in making of an offer

Supply of controlled drug – s4(3)(a)

- Actus Reus: supply.

• inc. distribution: s37(1)

• parting of possession from 1 person to another: R v Mills [1963].

• transfer must be for benefit of transferee: ‘to fulfil need or want by furnishing what is wanted’ (OED).

  • inc. handing back to owner with intention that he uses it – transfer control not ownership.

    • R v Delgado [1984]: d. keeping hold of drugs for friends + planning to return supply.

    • R v Maginnis [1987]: d. planned to return cannabis left in car by friend supply.

  • but: NOT handing over for safe keeping.

    • R v Dempsey [1985]: d. picked up (legitimate) prescription of morphine, then handed some to friend to hold for temporary safe keeping NOT supply.

• buying for a friend: R v Buckley [1979]: d. + friend pooled money, d. bought cannabis for both + handed friend his share supply (s37(1): inc. distribution).

• N.B. authorisation: supply authorised in some circumstances (s7).

  • burden on d. to prove within exception: R v Hunt [1987].

- Mens Rea: intention to supply?

• not clear in Act.

• analogy with s5(3): R v Leeson.

• implied by definition: ‘fulfil need or want’ – R v Maginnis, R v Dempsey.

Offer to supply controlled drug – s4(3)(a)

- Actus Reus: offering to supply a controlled drug.

• actual substance irrelevant: catches defendants who offer ordinary substance as controlled drug.

  • e.g. R v Dhillon [2000]: offer to supply heroin, but supplied bags of flour still offer.

• words or conduct: effect of words key – actual intention to supply irrelevant.

• once offer made, cannot be withdrawn: R v Prior [2004].

• contract technicalities do not apply: R v Dhillon: irrelevant that d. not party to agreement to supply.

- Mens Rea: intention to make offer.

• i.e. intent to speak words that amount to offer: R v Prior: d. promised to put another in touch with dealer supply: irrelevant that may not have been serious.

• no need to intend to supply (i.e. carry out offer): R v Gill; R v Goddard; R v Prior

  • (if so, would prob. be actual supply).

Being concerned in supply/in offer to supply – s4(3)(b) / s4(3)(c)

• R v Hughes [1985]: requirements for s4(3)(b) + (c).

• wide offences: enabling prosecution of those involved at distance (‘brains behind deals’).

- Actus Reus: (i) supply/offer of drug to another; (ii) participation by d. in enterprise involving such a supply.

• R v Blake [1978]: d. not directly involved in deal but involved in operation guilty.

- Mens Rea: knowledge by d. of nature of enterprise (i.e. that it involved supply of drug).

Offences relating to Production – s4(2) MDA 1971.

• s4(2)(a): production

• s4(2)(b): being concerned in production by another

Production – s4(2)(a)

• AR: produce.

  • wide definition: s37: producing by manufacture, cultivation or any other means.

    • R v Harris [1996]: stripping cannabis leaves (without having grown them) sufficient.

    • R v Russell [1991]: inc. conversion of 1 drug to another – cocaine to crack.

• MR: intention to produce?

Being concerned in production – s4(2)(b)

• d. must have identifiable role in production: not as wide as being concerned in supply.

  • R v Farr [1982]: d. allowed producers to use his kitchen to produce heroin not sufficient (but would have been guilty of s8 offence).

Defence of Lack of Knowledge – s28 MDA 1971.

• s28(1): s28 applies all above offences (but not s8).

• s28(2): defence – d. proves did not know, suspect or have reason to suspect some relevant fact.

• s28(3)(a): not knowing substance was particular drug alleged insufficient.

• s28(3)(b): d. must prove (i) did not believe, suspect or have reason to suspect that product was a(ny) controlled drug; or (ii) d. believed product was another controlled drug which, if it had been, he would not have been committing offence.

- s23(2) sets out defence; s28(3) explains.

• s28(3)(a): mistake as to type of controlled drug irrelevant – offence determined by drug in fact.

• s28(3)(b)(i): no offence where no knowledge + no reason to suspect product was controlled drug.

  • i.e. mistake as to substance not its legality – e.g. d. has ecstasy which he thinks are aspirin.

  • objective test: mistake must be reasonable.

• s28(3)(b)(ii): d. thinks drug is another which he is authorised to possess.

  • e.g. doctor in possession of heroin which he thinks is a drug he can handle.

- Burden of proof still on prosecution: R v Lambert [2002].

• only evidential burden on defendant: must produce evidence to raise issue under s28 prosecution must disprove beyond reasonable doubt.

• (previously: burden on d. – [Lane CJ] in R v McNamara).

- Intoxication and s28(3)(b)(i).

• objective element (‘reason to suspect’): judge can direct that self-induced voluntary intoxication irrelevant – R v Young.

Occupiers / Managers of Premises – s8 MDA 1971.

• s8: occupier/person concerned in management commits offence if knowingly permits or suffers on premises:

  • s8(a):...