Drug & Firearm Defence
Drug Offences
It is illegal to possess, supply and produce controlled drugs. It is also illegal to import or export drugs, or to allow your premises to be used for drug production. The legal restrictions placed on the use of controlled drugs are aimed at preventing drug misuse.
Controlled drugs fall into three different categories, Class A, B or C, according to their danger or how harmful they are. The sentences for drug offences are different for each class of drugs. Class A drugs are the most harmful, and sentences will be greater.
Possessing a controlled drug
Common examples of possession
Cannabis located inside of the pocket of a coat that you are wearing.
Cocaine is in your bedside cabinet in your bedroom.
Heroin is in the centre console of your car.
Offences
(1) Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession.
(2) Subject to section 28 of this Act and to subsection 5(4), it is an offence for a person to have a controlled drug in his possession in contravention of subsection 5(1) above.
(2A) Subsections (1) and (2) do not apply in relation to a temporary class drug.
Misuse of Drugs Act 1971, s 5
Points to Prove
- ✓ possess [name of drug]
- ✓ a controlled drug of Class A/B/C
Controlled drug
The Misuse of Drugs Act 1971 regulates certain drugs and designates which drugs are controlled by assigning them to certain categories (A, B, or C). If the drug is a controlled drug, it will be unlawful, with exceptions, to import, export, produce, supply, or possess that drug.
Possession
Proof of unlawful possession requires the following three elements:
- ▸ the drug must be in the custody or control (actual or constructive) of the suspect;
- ▸ the suspect must know or suspect the existence of the drug in question;
- ▸ the drug must be a controlled drug within the meaning of the Act.
Constructive control/possession
The suspect does not have immediate physical possession of the drugs but has almost as much control over them.
For example where a person leaves drugs in a changing room locker which they have the keys for. Although they no longer have ‘actual’ custody of the drugs, they have a high degree of control over them which amounts to possession.
Punishment - Possession
Punishment
Maximum Class A
Magistrates Court: 6/12 months’ imprisonment and/or a fine
Crown Court: 7 years’ imprisonment and/or a fine
Maximum Class B
Magistrates Court: 3 months’ imprisonment and/or a level 4 fine
Crown Court – 5 years’ imprisonment and/or a fine
Maximum Class C
Magistrates Court – 3 months’ imprisonment and/or a level 3 fine
Crown Court – 2 years’ imprisonment and/or a fine
Possession with intent to supply
Section 5(3) of the Misuse of Drugs Act1971 creates a specific offence of possessing a controlled drug with intent to supply it.
Offences
Subject to section 28 of this Act, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of this Act.
Misuse of Drugs Act 1971, s 5(3)
Points to Prove
- ✓ possess
- ✓ [name of drug]/an unspecified controlled drug of class A/B/C
- ✓ with intent to supply
Defences
Section 28 of the Misuse of Drugs Act 1971
This applies to offences under s 4(2) and (3), s 5(2) and (3), s 6(2), and s 9 of this Act and provides that it shall be a defence if the defendant proves that they:
- ▸ neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or
- ▸ believed the substance or product in question to be a controlled drug or a controlled drug of a description such that, if it had been that controlled drug or a controlled drug of that description, they would not at the material time have been committing any offence to which this section applies.
Misuse of Drugs Act 1971, s 5(3)
Punishment - Possession with Intent to Supply
Class A
Magistrates Court: 6/12 months’ imprisonment and/or a fine
Crown Court: Life imprisonment and/or a fine
Class B
Magistrates Court :6/12 months’ imprisonment and/or a fine
Crown Court: 14 years’ imprisonment and/or a fine
Class C
Magistrates Court: 3 months’ imprisonment and/or a level 4 fine
Crown Court: 14 years’ imprisonment and/or a fine
Evidence of intent to supply
An intention to supply may be proved by direct evidence in the form of admissions or witness testimony, e.g. 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 suggesting proximity to their manufacturer or importer.
- ▸ Possession of a variety of drugs may indicate sale rather than personal consumption.
- ▸ Evidence that the drug has been prepared for sale, for example if a drug has been cut into small portions and those portions are wrapped.
- ▸ Drug related equipment in the care and/or control of the suspect, such as weighing scales, cutting agents, wraps of foil or bags.
- ▸ Documents for example diaries or lists 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 suspect 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.
Offences
The principal offences relating to the misuse of controlled drugs are contained in the Misuse of Drugs Act 1971
The Misuse of Drugs Act 1971 covers the range of offences set out below.
Possession offences:
- ▸ Possession – s.5(1) of the Act;
- ▸ Possession with intent to supply – s.5(3) of the Act.
Supply offences:
- ▸ Supplying a controlled drug – s.4(3)(a) of the Act;
- ▸ Being concerned in a supply – s.4(3)(b) of the Act;
- ▸ Offering to supply – s.4(3)(a) of the Act;
- ▸ Being concerned in an offer to supply – s.4(3)(c) of the Act.
Importation offences:
- ▸ Importation (and exportation) of a controlled drug – s.170 Customs and Excise Management Act 1979,
Production offences:
- ▸ Production of a controlled drug – s.4(2)(a) of the Act;
- ▸ Being concerned in the production – s.4(2)(b) of the Act;
- ▸ Cultivation of the cannabis plant – s.6(2) of the Act.
Occupier offences:
- ▸ Permitting premises to be used for producing – s.8(a) of the Act;
- ▸ Permitting premises to be used for supplying – s.8(b) of the Act;
- ▸ Permitting premises to be used for smoking cannabis etc. – s.8(d) of the Act.
Opium related offences:
- ▸ Smoking or using prepared opium – s.9(a) of the Act;
- ▸ Frequenting a place used for opium smoking – s.9(b) of the Act;
- ▸ Permitting premises to be used for preparing opium for smoking – s.8(c) of the Act;
- ▸ Possessing pipes or other utensils in connection with the preparation or smoking of opium – s.9(c)(i) and (ii) of the Act.
Supply of articles offences:
- ▸ For administering controlled drugs – s.9A(1) of the Act;
- ▸ For preparing controlled drugs for administration – s.9A(3) of the Act.
Inchoate offences:
- ▸ Incitement of any of the above offences – s.19 of the Act;
- ▸ Participating in an offence (that corresponds with an offence under the Act) outside of the UK – s.20 of the Act;
- ▸ Attempting to commit a drugs offence – Criminal Attempts Act 1981;
- ▸ Conspiracy to commit a drugs offence – Criminal Law Act 1977;
- ▸ Encouraging or assisting in the commission of an offence – Part 2 Serious Crimes Act 2007.
Obstruction offences:
- ▸ Obstructing (or concealing or failing to produce evidence to) a constable or other authorised person – s.23 of the Act.
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.
Maximum Penalties
Possession of a controlled drug (effective 1 April 2021)
Misuse of Drugs Act 1971, s5(2).
Triable either way
Class A
Maximum: 7 years’ custody
Offence range: Fine – 51 weeks’ custody
Class B
Maximum: 5 years’ custody
Offence range: Discharge – 26 weeks’ custody
Class C
Maximum: 2 years’ custody
Offence range: Discharge – Medium community order
Supplying or offering to supply a controlled drug / Possession of a controlled drug with intent to supply it to another (effective 1 April 2021)
Supplying or offering to supply a controlled drug, Misuse of Drugs Act 1971 (section 4(3))
Possession of a controlled drug with intent to supply it to another,Misuse of Drugs Act 1971 (section 5(3))
Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment.
Class A
Maximum: Life imprisonment
Offence range: High level community order – 16 years’ custody
Class B
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band B fine – 10 years’ custody
Class C
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band A – 8 years’ custody.
This offence is subject to statutory minimum sentencing provisions.
Importation or Exportation of Drugs Supplying Controlled Drugs (effective 1 April 2021)
Importing or exporting a controlled drug is an either way offence. The maximum penalties are set out in Schedule 1 of CEMA 1979.
Producing Controlled Drugs/Cultivating Cannabis (effective 1 April 2021)
Production of a controlled drug, Misuse of Drugs Act 1971 (section 4(2)(a) or (b))
Cultivation of cannabis plant,Misuse of Drugs Act 1971 (section 6(2))
Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment.
Production of a controlled drug
Class A
Maximum: Life imprisonment
Offence range: High level community order – 16 years’ custody
Class B
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band B fine – 10 years’ custody
Class C
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Discharge – 8 years’ custody
Cultivation of cannabis plant
Maximum: 14 years’ custody
Offence range: Band A fine – 8 years’ custody
This offence is subject to statutory minimum sentencing provisions.
Supplying or offering to supply a controlled drug/ Possession of a controlled drug with intent to supply it to another (effective 1 April 2021)
Supplying or offering to supply a controlled drug, Misuse of Drugs Act 1971 (section 4(3))
Possession of a controlled drug with intent to supply it to another,Misuse of Drugs Act 1971 (section 5(3))
Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment.
Class A
Maximum: Life imprisonment
Offence range: High level community order – 16 years’ custody
Class B
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band B fine – 10 years’ custody
Class C
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band A – 8 years’ custody
This offence is subject to statutory minimum sentencing provisions.
Permitting premises to be used (effective 1 April 2021)
Misuse of Drugs Act 1971, s.8
Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment.
Class A
Maximum: 14 years’ custody
Offence range: Low level community order – 4 years’ custody
Class B
Maximum: 14 years’ custody
Offence range: Band A fine – 18 months’ custody
Class C
Maximum: 14 years’ custody
Offence range: Discharge – 26 weeks’ custody
This offence is subject to statutory minimum sentencing provisions.
Fraudulent evasion of a prohibition by bringing into or taking out of the UK a controlled drug (effective 1 April 2021)
Misuse of Drugs Act 1971, s.3; Customs and Excise Management Act 1979, s.170(2).
Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment.
Class A
Maximum: Life imprisonment
Offence range: Band A fine – 16 years’ custody
Class B
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Discharge – 10 years’ custody
Class C
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Discharge – 8 years’ custody
This offence is subject to statutory minimum sentencing provisions.
Supplying, or offering to supply, a psychoactive substance / Possession of psychoactive substance with intent to supply (effective from 1 April 2021)
Supplying, or offering to supply, a psychoactive substance, Psychoactive Substances Act 2016 (sections 5(1) or 5(2))
Possession of psychoactive substance with intent to supply,Psychoactive Substances Act 2016 (section 7(1))
Maximum: 7 years’ custody
Offence range: Band B Fine – 6 years’ custody
Producing a psychoactive substance (effective 1 April 2021)
Psychoactive Substances Act 2016, s.4
Triable either way
Maximum: 7 years’ custody
Offence range: Band B Fine – 6 years’ custody
Importing or exporting a psychoactive substance (effective 1 April 2021)
Psychoactive Substances Act 2016, s.8
Triable either way
Maximum: 7 years’ custody
Offence range: Discharge – 6 years’ custody
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