It is unlawful to have a controlled drug in your possession unless you have authorisation in the form of a licence, for example a prescription, or if you did not know the substance was a controlled drug.
Elements to be proven
- The substance is in the possession or under the control of the individual
- The substance must be in an individual’s physical custody or under their control. This can include being at the property of someone who is not present but has control over that property.
- The individual knows the ‘thing exists’
Essentially, a person must know of the existence of the substance and they must know that the substance is a controlled drug.
So, it is a defence if a person in possession of ecstasy tablets honestly believed they were headache tablets. However, if a person is in possession of cocaine and honestly believed that they were in possession of class B amphetamine they would still be charged with a Class A offence.
Ignorance of the law is not a defence. It is therefore no defence for an individual to say that they knew they were in possession of ecstasy, but did not realise that ecstasy was a controlled drug.
The substance is a controlled drug
The substance must in fact be a controlled drug. Therefore, if the individual thought they were in possession of cannabis but they were in fact in possession of a synthetic cannabinoid that is not controlled under the Misuse of Drugs Act 1971, no offence has been committed.
However, if a person has something which they believe to be a controlled drug and they have made a statement confirming they believed it to be a controlled drug, then if it in fact turns out not to be so they can be prosecuted for the offence of attempting to possess it under the Criminal Attempts Act 1981. The penalty for the attempt is the same as for the substantive offence.
Possible defences
It is a defence against a possession charge if the defendant can prove that, as soon as was practicable, they intended to destroy the substance or give it to someone who had legal authority to possess it.
Other Issues
Joint possession
Depending on the circumstances of a case, an allegation of joint possession may be made, for example, where a group of people are apprehended when travelling in a car with a stash of drugs. If it can be proven that they were all in control of the drugs, they might all be guilty of joint possession of the same batch.
Traces
Even a small trace of a substance can amount to possession, although the prosecution may have difficulties in proving the defendant had knowledge of the existence of the substance.
Drug testing
Drug testing has become more prevalent within the criminal justice system, most notably with the introduction of testing on arrest. However, these tests are used solely for the purposes of referral to the Drug Interventions Programme and not to establish the offence of possession.
Sentencing
The severity of the penalty applied in relation to drugs offences will depend on the individual circumstances of the case. There is a Sentencing Guideline which Courts use to determine the appropriate sentence. There is no specific amount of drugs that will determine an individual is charged with. Please see the section on sentencing for drug offences for a more detailed discussion of this area of law.
Each Class has a maximum sentence though in most cases will not be reflective of the sentence given, and penalties will fall within a specified range as follows:
Class A
Maximum: 7 years’ imprisonment or a fine or both
Actual sentencing range: Fine – 51 weeks’ imprisonment
Class B
Maximum: 5 years’ imprisonment or a fine or both
Actual sentencing range: Discharge – 26 weeks’ imprisonment
Class C
Maximum: 2 years’ imprisonment or a fine or both
Actual sentencing range: Discharge – Community Order