Drug Use on Premises (Section 8)

Section 8 of the MDA controls the consumption (of certain controlled drugs, namely cannabis and opium), production and supply of controlled drugs on premises. This section creates a criminal liability for occupiers or managers who allow their premises to be used for certain drug-related activities.

The law states:

‘8.  Occupiers etc of premises to be punishable for permitting certain activities to take place there

A person commits an offence if, being the occupier or concerned in the management of any premises, he knowingly permits or suffers any of the following activities to take place on those premises, that is to say –

a) producing or attempting to produce a controlled drug in contravention of section 4(1) of this Act;
b) supplying or attempting to supply a controlled drug to another in contravention of section 4(1) of this Act, or offering to supply a controlled drug to another in contravention of section 4(1);
c) preparing opium for smoking;
d) smoking cannabis, cannabis resin or prepared opium.’

There are a number of considerations relating to the definition of s.8, such as who constitutes an occupier of premises or what constitutes knowledge.

Who is section 8 aimed at? 

Section 8 affects anyone who is the ‘occupier or concerned in the management of any premises’. This places an obligation on anyone who has a sufficient degree of control of premises. In reality, this can range from a director of an organisation, to a team leader, or a parent of a person who is using cannabis within the home. The overriding issue will be control.

It will be usual to assess whether the person deemed to be the occupier/ concerned in management has the power to exclude someone involved in one of the activities listed in section 8.

What constitutes ‘premises’ under s8? 

This has not been defined in law but it would appear that it could apply to any property where there is an element of control. Section 8 has been applied to hostels and other services accessed by drug users, as well as nightclubs. It has also been applied to residential properties, where the person deemed to be in control is the property owner or tenant.

Knowledge 

In order for an offence to be committed under s8 the occupier/ manager ‘must knowingly permit or suffer’ one of the prohibited activities. The definition of ‘permit’ is actual knowledge of the act(s); however, the definition of ‘suffer’ is slightly more complicated.

To suffer is the failure to take action. In essence, it is turning a blind eye to the activities. This clearly places an obligation on occupiers/ managers to take action to stop the act(s) otherwise they may face criminal prosecution.

Sentencing

There is more information on this issue in sentencing for drug offences. 

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.