Defence

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.