Cultivation of Cannabis
Cultivation is the tending of plants, i.e. watering, feeding, nurturing etc.
It is unlawful to cultivate any part of a cannabis plant, regardless of whether it is for personal use or self-medication. It is not an offence to supply or possess cannabis seeds, but any action which germinates or cultivates them is an offence.
A person can only be charged with cultivation or production, not both offences together. Cultivation of cannabis can be charged either as the specific cannabis cultivation offence under section 6(2) or as a general production offence under section 4(1)(a).
The reason that an individual would be charged with production instead of cultivation is because production is classed as a ‘trafficking’ offence, which allows the authorities to order a POCA (Proceeds of Crime Act) hearing.
POCA provides the courts with scope to confiscate the proceeds of a crime where a defendant is shown to have benefited from their criminal conduct.
Penalties available for cultivation of cannabis
The severity of the penalty applied in relation to cultivation of cannabis will depend on the individual circumstances of the case. The prosecution consider the size of the operation, the individual’s role in said operation & certain mitigating and/or aggravating factors.
The Production of a controlled drug / Cultivation of cannabis plant Sentencing Council guidelines outline the range of sentences available for cultivation of cannabis cases:
Maximum: 14 years’ custody
Offence range: Band A fine – 8 years’ custody
Defence (section 28 Misuse of Drugs Act 1971)
A defence under section 28 of the Misuse of Drugs Act 1971 only applies to certain offences under the Act, namely:
- Production, or concerned in the production, of a controlled drug (section 4(2));
- Supply, or concerned in the supply, of a controlled drug (section 4(3) – a section 28 defence does not apply to cases where the offence is ‘offer to supply’);
- Possession of a controlled drug (section 5(2));
- Possession with intent to supply (section 5(3)); and,
- Cultivation of cannabis (section 6(2)).
A section 28 defence can be presented when a suspect can show:
- They neither knew, suspected, nor had reason to suspect the existence of some fact that the prosecution is required to prove; for example, that they were in possession of the drug; or,
- They neither believed, suspected, nor had reason to suspect that the substance in question was a controlled drug; or,
- That they believed the product to be a controlled drug, which had it been that drug, would mean that no offence would have been committed. For example, this would apply to situations where the defendant was in possession of a controlled drug which they thought they had lawful authority to possess – for example, steroids, which are legal to possess for personal use without prescription under Schedule 4(2) as amended by the Misuse of Drugs Regulations 2001 – but in fact were in possession of an MDMA pill.