Drug Offences Notes

• 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.

  ...

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