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Drugs and the Criminal Law - Coggle Diagram
Drugs and the Criminal Law
What is a controlled drug?
Three main classes: A,B, and C
Class A most "harmful", e.g. ecstacy, LSD, acid, cocaine
Class B slightly less "harmful" e.g. codeine, ketamine, cannabis
Class C least "harmful"- khat, temazepan
Main offence: Production
Section 4 Misuse of Drugs Act 1971- (2) Subject to section 28 of this Act, it is an offence for a person--
a) to produce a controlled drug in contravention of subsection (1) above; or
b) to be concerned in the production of such a drug in contravention of that subsection by another
Meanings of 'produce' and 'production'- 'producing it by manufacture, cultivation or any other method, any "production" has a corresponding meaning'
Main Offence: Supply
Section 4: (3) Subject to section 28 of this Act, it is an offence for a person--
a) to supply or offer to supply a controlled drug to another in contravention of subsection (1) above; or
b) to be concerned in the supplying of such a drug to another in contravention of that subsection; or
c) to be concerned in the making of another in contravention of that subsection of an offer to supply such a drug
Meaning of 'supplying': partially defined as 'including distributing'
BUT held that 'supply' is a broad term referring to the 'entire process of supply.'
Main Offence: Possession
Section 5: (2) Subject to section 28 of this Act and to subsection (4) below, it is an offence for a person to have a controlled drug in his possession in contravention of subsection (1) above
(2A) Subsections (1) and (2) do not apply to a temporary class drug
(3) 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
Meaning of 'possession: no definition
'For the purposes of this Act the things which a person has in his possession shall be taken to include anything subject to his control which is in the custody of another'
Warner v Metropolitan Police Commsr. [1969]:
Lord Pierce: 'I think that the term 'possession' is satisfied by a knowledge only of the existence of the thing itself and not its qualities and that ignorance or mistake as to its qualities is not an excuse. This would comply with the general understanding of the word 'possess'
‘Though I
reasonably believe the tablets which I possess to be aspirin
, yet if they turn out to be
heroin I am in possession of heroin tablets.
This would be so, I think, even if I believed them to be sweets. It would be otherwise if I believed them to be something of a wholly different nature. At this point a question of degree arises as to when a difference in qualities amounts to a difference in kind. That is a matter for a jury…The situation with regard to containers presents further problems.
If a man is in possession of the contents of a package, prima facie his possession of the package leads to the strong inference that he is in the possession of its contents.
’
Defences
A person is not guilty of a drug offence if they can prove either:
a) They neither knew nor suspected nor had reason to suspect that the substance in question was a controlled drug
OR
b) They neither believed nor suspected that the act they were doing was unlawful, and they had no reason to suspect it was unlawful
These are statutory defences, so the burden is on the defendant to raise them and provide some evidence
Howeveronce raised, the prosecution must disprove the defence beyond reasonable doubt
Mere ignorance is not always enough—it must be genuine, and the person must also have no reason to suspect otherwise
If a person wilfully ignores obvious signs, they may be found guilty—the law does not protect "deliberate blindness."
Punishment: Schedule 4
Summary and indictable
Depends on Class and quantity (as well as aggravating and mitigating circumstances)
Available punishments:
Summary: fine and imprisonment or both up to 12 months
Indictable: fine and imprisonment or both up to life
Critical Issues
Viscount Sankey's 'Golden Thread' (Woolmington v DPP [1935])- Duty of the prosecution to prove priosner's guilt (assumption of innocence til proven guilty)
Reverse burden of proof shifts responsibility onto the defendant to prove (or disprove) an element of an offence
Warner v Metropolitan Police Commissioner [1969]
The defendant received package containing drugs, but claimed he thought it was something else
The court had to decide whether mere physical possession was enough to prove legal possession, i.e. with knowledge of the contents
Ultimately, it was held that knowledge or belief about the contents is necessary for "possession" under the Misuse of Drugs Act
Section 28 of the Misuse of Drugs Act 1971—A statutory Reversed Burden
Section 28 allows for defence if the defendant proves they did not know, or suspect, nor have reason to suspect, that the substance was a controlled drug
The defendant must prove innocence on that point.
This is a legal burden (they must actively prove their case)
It is usually on the balance of probabilities
But courts are cautious: this must not be allowed to
erode presumption of innocence
Human Rights Challenge and Interpretation:
In R v Lambert [2002], the HoL considered whether this reversed burden breached the presumption of innocence under Article 6(2) ECHR
The cout held that section 28 could be interpreted to impose only an evidential burden, not a legal one- i.e. D must raise the issue, but the prosecution must still disprove it beyond reasonable doubt
This was a human rights-compatible interpretation, under s.3 of the Human Rights Act 1998