It is unlawful to possess a controlled drug unless you have lawful authority to do so, for example, where a controlled drug has been lawfully supplied to you on prescription. There are also legal defences to possession, including where you did not know, suspect or have reason to suspect that the substance was a controlled drug.

What happens if I am caught in possession of a controlled drug?

There are a number of actions the police can take if someone is found in possession of a controlled drug. These range from an informal out-of-court resolution, which does not result in a criminal conviction, to a police caution (which will form part of a person’s criminal record and may be disclosed in criminal record checks), or prosecution.

What happens will largely depend on police discretion. This means that someone caught in possession of drugs for the first time could receive an out-of-court resolution or could be prosecuted. Where someone is stopped can also be a determining factor, with some police forces more likely to charge people with possession offences than others.

The website Out of Court Resolutions in England and Wales provides a useful breakdown, by police force area, of the number of out-of-court resolutions issued and the number of charges brought.

The National Police Chiefs’ Council (NPCC) has issued a framework for police forces on the use of out-of-court disposals, which can be read in full here. While this provides an overall strategy, its implementation varies across police forces. This is partly because the proposed statutory changes to the out-of-court disposal system, introduced under the Police, Crime, Sentencing and Courts Act 2022, have not been fully brought into force.

As a result, police forces continue to use a variety of responses, ranging from informal resolutions to formal cautions, charges and prosecution. 

Based on information reported to the Home Office by police forces, alongside the NPCC framework and guidelines detailed below, the following actions may be taken when someone is found in possession of drugs:

 1. Community Resolutions

A person found in possession of a controlled drug can be offered a community resolution. The NPCC has published guidelines on the use of community resolutions. 

To be eligible you must admit responsibility, which in effect will be an admission of possession. The guidelines state that a community resolution can be issued for subsequent offences. Community resolutions are intended to be given outside of the Police station, and so can be given on the street.
 
Police forces will be responsible for the conditions imposed as part of a community resolution. These conditions may include making an apology, or participating in a diversion scheme – these are often educational courses around drugs and/or drug use. Interventions, such as attendance at a drug awareness course, are voluntary and not legally enforceable.
 
A community resolution does not result in a criminal conviction or a formal caution, although it will be recorded by the police. It may be disclosed as part of an enhanced Disclosure and Barring Service (DBS) check where the police consider the information relevant.
 
The Police can also consider issuing a Penalty Notice for Disorder (PND) for possession of cannabis or khat as an alternative to a community resolution. Although, PNDs have become less common as focus shifts from the financial punishment to education / rehabilitation offered by diversion schemes. If the PND is paid within 21 days (or other period if specified) then no further action will be taken and no criminal record will exist, though again these may be disclosed under an enhanced DBS check. A PND can be challenged, and if challenged will result in criminal proceedings at the magistrates court. Failure to pay will result in a fine for the original penalty plus 50% being registered against the defendant at the local magistrates court. A person has the right to refuse a PND, although the police may then consider other action, including prosecution.

2. Outcome 22 

Outcome 22 is a police-recorded outcome used where a person has undertaken a rehabilitative, diversionary, educational or intervention activity, without requiring an admission of guilt. NPCC Guidance on the application of Outcome 22 can be found here, and this outcome is being increasingly used by police forces across England and Wales. It can be used where the evidential threshold for a prosecution has not been met, but where the threshold has been met, it can be used as part of a Deferred Prosecution Scheme (DPS) although these schemes are separate from Outcome 22, it is simply that compliance with a required activity under a DPS will be recorded as an Outcome 22.  

Failure to comply with the required activity can result in a formal disposal, including a conditional caution or charge and prosecution. 

An outcome 22 disposal can be disclosed as part of an enhanced DBS check

3. Deferred Prosecution Scheme (DPS) 

A DPS applies to bothdeferred prosecutions and deferred cautions. In DPSs, the decision to prosecute or to issue a caution is put on hold while a person completes the agreed diversionary conditions. Failure to comply means that the prosecution will go ahead or the caution will be issued. Successful completion of the conditions means no further action will be taken. Admission of guilt is a condition of a DPS. 

4. Conditional Cautions

To be eligible for a conditional caution there must be a realistic prospect of convicting you of the offence if it is charged, and you must also admit guilt for the offence and consent to being given a conditional caution.
 
Police forces will be responsible for the conditions imposed as part of a conditional caution. These conditions can include making an apology and diversion schemes. However, it can also require engagement with unpaid work, a fine, and other conditions. The purpose of the conditional caution should be to prevent reoffending, and the conditions should further that purpose, so it should be relevant to the use of drugs. It can also include a requirement to pay a financial penalty.
 
A failure to comply with the conditions is likely to lead to a prosecution for the original offence, though depending on the overall situation the police can choose to treat the conditions as completed, or change the conditions.
 
A person should only be given a second conditional caution in exceptional circumstances. 
 
While a conditional caution is a less severe outcome than a conviction, and becomes “spent” three months after it has been issued or when the conditions are completed. It can form part of your criminal record and can be disclosed as part of an enhanced DBS check. As you have to admit guilt to be eligible for a conditional caution you should always seek legal advice on your specific situation before doing this.

(Some police forces are still issuing simple cautions, essentially cautions without conditions, but this is becoming less prevalent).  

5. Charge/Summons

If a person has already had a conditional caution, or the police do not consider an out of court disposal to be appropriate, they may be charged, released under investigation or, rarely, released under bail.
 
If you are charged you will receive a charge sheet or summons informing you what you have been charged with, and requiring you to attend a hearing at the magistrates court at a future date. You can contact us for more advice on what to do if this happens.
 
If you are released under investigation then at that point you have not been charged, and there are unlikely to be any conditions attached for your release. However, you may be asked to return to the police station at a future date, or a decision may simply be made to formally charge you afterwards, in which case you will receive a summons. The police may also choose to take no further action.
 
If you are released under bail then conditions may be imposed on your release. You will be bailed until a particular date, and usually have to return to the police station on that date. At that point, you may either be bailed again, or charged, released under investigation, or told that no further action will be taken.

All of the above informal and formal out of court disposals can be used in respect of adults or children, although the caution system is governed by different statutory frameworks. 

Prosecution for possession of a controlled drug

The advice below relates to what would happen if you are caught in possession of a controlled drug and subsequently prosecuted. In practice, if are caught in possession of a small amount of any drug for personal use you may get a community resolution or a conditional caution, as outlined above – however, Crown Prosecution guidance states where a person is caught in possession of more than a minimal amount of Class B or Class C drugs a prosecution will be the usual course of action. 

You might be charged with possession if you have had cautions or convictions for similar offences before, or if you have more than a small amount of drugs on you. There is no set amount of drugs where the police will decide to charge instead of give a caution. It is possible to challenge a decision to charge you instead of giving a community resolution or conditional caution.

Elements to be proven

Three elements constitute the offence of possession:

• 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. The latter can include the substance being at the property of someone who is not present but has control over that property.

• The individual knows of the existence of substance.

The individual 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, and they inform the police of that, 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.

If the individual thought they were in possession of cannabis but they were in fact in possession of tea leaves, 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 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 testing on arrest. However, these tests are used solely for the purposes of referral to mandatory drug assessments 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 what 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 this will not be reflective of the sentence given, and penalties will fall within a specified range as follows:

Class A

Maximum: 7 years’ imprisonment and/or a fine.

Offence range: Fine – 51 weeks’ imprisonment.

Class B

Maximum: 5 years’ imprisonment and/or a fine. 

Offence range: Discharge – 26 weeks’ imprisonment.

Class C

Maximum: 2 years’ imprisonment and/or a fine.

Offence range: Discharge – Medium community order,

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

You can also access Sentencing Council’s Guidelines for Drug Offences for more information.

If you have been arrested or charged for a drugs offence call or email Release for free and confidential advice.