#4616 - Drug Offences - GDL Criminal Law

Misuse of Drugs Act (MDA) 1971

Schedule 2: 3 categories of drugs -

Class A - cocaine, ecstasy, opium, heroin and ‘magic mushrooms’, LSD

Class B – amphetamine, cannabis, cannabis resin, codeine, mephedrone (“meow meow”)

Class C – tranquilizers e.g. valium, GHB and Ketamine, steroids/testosterone

• Class that a drug is In will affect the maximum sentence for certain offences under the Act – 3 individual ‘crimes’ for each offence created by MDA

• Schedule 4 – provides indication of which court the offence should be tried in and -the maximum penalty for each offence, according to the classification of the drug

Offences covered:

• Simple Possession: S5(2)

• Possession with intent to supply: S5(3)

• Production: S4(2)(a)

• Being concerned in production: S 4(2)(b)

• Supply: S4(3)(a)

• Offering to supply: S4(3)(a)

• Being concerned in the supply of a controlled drug: S4(3)(b)

• Misuse of rugs on premises – occupier/manager – S8

Offences relating to possession

Simple Possession

• Section 5(1) – unlawful to possess a controlled drug (not illegal)

• Section 5(2) – in contravention of S5(1) – it’s section 5(2) which creates the offence

AR

• Possession – of a ‘visible, tangible and measurable amount’

  • R v Boyesen: Amount only needs to be significant enough to suggest possession – doesn’t need to be sufficient to be useable (here only a miniscule amount)

  • Must be in the physical control of the D

  • R v Bland: “Joint possession” – CA held that Bland not guilty, merely living with her guilty boyfriend didn’t automatically make her guilty (no evidence of active participation)

• Lack of Authorisation (s7)

  • Certain people may be authorised – e.g. doctors in all circumstances; police when arresting a drug dealer

MR

• Have to know you possess the item (R v Boyesen)

• But don’t need knowledge of the nature of the item (Warner v MPC – if a person receives something in suspicious circumstances he can be inferred to have the requisite knowledge)

  • If Fred says to Sarah , ‘I’ve put something in the biscuit tin, don’t look at it’ – then Sarah knows she possesses even though she doesn’t know what it is

• R v Martindale: D found in possession of Cannabis – he had forgotten it was in his wallet

  • Knowledge does not depend on the D’s memory – if D once knew it was in their possession then they have the requisite knowledge

• No need to know the quality of the substance for knowledge of possession:

  • D is still guilty even if mistaken as to the type of drug which is in their possession (e.g. being in possession of heroin but thinking it is Cannabis) – Searle v Randolph

• But a mistake can sometimes prevent ‘possession’:

  • R v McNarmara – defence under s28 where the D believes they are in possession of a completely different substance (e.g. being in possession of Cannabis but thinking it’s talcum powder)

Specific defence to possession offence – S5(4)

• Section 5(4)(a) – taking possession and then destroying/delivering to lawful custody

• Section 5(4)(b) – taking possession with intent to deliver to lawful custody

  • But you must take reasonable steps (R v Murphy)

Possession with intent to supply

AR: Same as possession (possession + lack of authorisation)

MR: Same with addition of ‘intent to supply’

• Don’t need to know precisely what type of controlled drug you intend to supply – just that you intend to supply what you possess

  • R v Leeson: D claimed he didn’t realise he had cocaine (thought it was amphetamine) – but this made no difference

• How to prove intent?

  • Common piece of evidence = extravagant lifestyle which they have no visible means of supporting

    • R v Morris: police surveillance of D for some time – Morland J (CA) said that the prosecution could use the fact the D had 6,000 of cash as evidence, but the D can put forward an explanation

  • Most common evidence is simply possession of a large amount of the substance :

    • Quantity alone doesn’t prove D had necessary intent but is strong evidence

Offences relating to supply

Supply controlled drug: S 4(3)(a)

Offering to supply: S 4(3)(a)

AR

• To supply or offer to supply

• A controlled drug

• To do so in contravention of S4(3) of the Act – i.e. producing a controlled drug or supplying or offering to supply to another

“Supply”

• Definition of “supply” : Lord Parker in R v Mills – ‘parting of possession from one person to another’

• Cases of temporary handovers:

  • R v Delgado: v. unlucky D was in a mini-cab which was stopped – he was in possession of 6 kilos of cocaine – said he was just returning the drugs to their owner, but guilty of possession with intent to supply as judge said the absence of transfer of legal possession is irrelevant - he still intended to supply it back to the original owner

  • R v Dempsey: registered drug addict who had picked up drug substitutions. He handed the drugs to his girlfriend while he went to the toilet. He was charged with supply, and she was charged with possession with intent to supply

    • CA: supply = ‘to fulfil, satisfy a need or want by furnishing what is wanted’

    • Dempsey was not guilty as he was supplying the drugs for safekeeping

    • She was guilty as when she returned them to him she was supplying for him to use

  • R v Maginnis: Cannabis left with D by a friend who was going to come back to collect it

    • CA went with Dempsey rather than Delgado but HL said there was no conflict

    • No guilt where someone is safekeeping – but when the person who received for safekeeping hands it back to the original owner there is supply, as it is to the benefit of the person they are handing it back to – so Demsey’s girlfriend, Delgado and Maginnis are all guilty

• Buying for a friend:

  • R v Buckley: Where the D buys enough for himself and his friend, he will be ‘supplying’ to the friend when he gives it to them – HL relief on definition in s37(1) which includes ‘distributing’ – didn’t matter that the friend had already paid for his share

• Offence not committed under S4(1) if authorised by Regulations – e.g. someone licensed by the Home Secretary (doctors/chemist) – but up to the D to prove that he falls within exception (R v Hunt)

“Offering to supply”

• Focus on whether the D has made an offer to sell (covers people who purport to supply a drug i.e. selling ‘cocaine’ which is in fact talcum powder)

• Offer can be words or conduct: irrelevant whether the D intends to carry out his offer (R v Goddard)

• Once an offer is made it cannot be withdrawn – R v Prior :

• Not useful to refer to the technicalities of contract law – no need to be as technical – use common sense

MR:

• Act doesn’t say anything and case law is rather unclear

• Intent to supply: take from Leeson that you don’t need to know exactly what you are supplying (subject to S28) –

• Offer to supply:

  • Intention to offer - i.e. intent to speak the words that amount to an offer (R v Prior – D claimed he hadn’t been serious – but this doesn’t matter)

  • No need to actually intend to supply – R v Gill, R v Goddard, R v Prior – because the crime usually involves a hoax/deception

Being concerned in supply to another: S4(3)(b) / Being concerned in the making of an offer to supply: 4(3)(c)

• R v Hughes sets out requirements:

  • Must be an offer/supply by A to B

  • D must participate in the enterprise and must know the nature of the enterprise

• R v Blake: shows that any degree of active or passive participation will be sufficient – offer to supply by a friend who told group of boys to go to Blake’s house, they turned up, he didn’t know anything about it, friend then supplied the drugs – but Blake was still guilty – he knew it was happening - was involved

Issue of authorisation (S7) can arise

Offences related to production

• S4(2)(a): production of controlled drug

• S4(2)(b): being concerned in production

AR

• Production

• “Produce”

• S37 – quite a broad definition: to produce by manufacture, cultivation or any other method

• R v Harris: process of stripping down cannabis plants and putting the usable parts together amounted to production

• R v Russell – if you have one controlled drug and turn it into another then this is still production

• Without authorisation

• Not an offence if authorise - R v Hunt

Being concerned in the production

• R v Farr: simply allowing people to use your premises is not being concerned in the production (separate offence which deals with that)

• Being concerned requires some sort of active participation

Defences in S28

• S28 (2)– seems to say burden is with the defence - ‘it shall be a defence for the accused to prove’

• But since 2000 this has been reinterpreted (Effect of ECHR): all the defence must do is raise an issue, and then the burden is on the prosecution

  • R v Lambert: the word ‘prove’ in the Act does not amount to a shift in the burden of proof to the D – if the D has evidence which places him within the ambit of s28 then the prosecution must disprove the defence beyond reasonable doubt

• S28(2): Defence if D does not know, suspect or have reasonable grounds to suspect “some fact” where the existence of the fact must be proved by the prosecution

• S28(3): gives further explanation of when this defence will or will not work

  • S28(3)(a): knowledge, suspicion or reasonable grounds to suspect that the item is a controlled substance is enough to prove the offence, even if D is mistaken to the precise type – (e.g. guilty of possession of heroin even if you think it is cannabis)

  • S28(3)(b): no offence where the D had no knowledge, suspicion or reason to suspect that it was a controlled drug at all

Intoxication and the S28(3)(b)(i) defence

• A defence consisting of a subjective element ‘believed’ or ‘suspected’ and an objective element ‘...