Supply
There are several offences connected with the supply of drugs. The main offences are:
- Supply – section 4(3)(a) Misuse of Drugs Act 1971
- Offer to supply – section 4(3)(a) Misuse of Drugs Act 1971
- Being concerned in supply – section 4(3)(b) Misuse of Drugs Act 1971
- Being concerned in an offer of supply – section 4(3)(c) Misuse of Drugs Act 1971
- Supply of a controlled drug near school premises or involving a child – section 71 Sentencing Act 2020 in England and Wales; section 4A Misuse of Drugs Act 1971 in Scotland and Northern Ireland
- Possession with intent to supply – section 5(3) Misuse of Drugs Act 1971
- Offences under the Psychoactive Substances Act 2016
Supply
It is an offence to supply a controlled drug to another person, but case-law has also suggested that courts will define “supply” very broadly. In order to establish guilt, the prosecution need only show that the defendant transferred the physical control of a drug to someone else. It is not important whether the defendant made a profit or benefited in any way, although this will be reflected in sentencing. Supply can therefore range from passing a joint between friends to large scale supply of crack for profit.
Offer to supply
It is an offence to offer to supply a controlled drug to another person. This offence may occur even where an individual offers to supply a controlled drug but in fact supplies a substance which is not controlled.
Concerned in supply
Two further supply offences exist under the 1971 Act, namely:
- Being concerned in the supply of a controlled drug; and,
- Being concerned in the making to another of an offer to supply a controlled drug.
In order to establish either of these offences, the prosecution must prove:
- The supply of a drug to another or the making of an offer to supply a drug to another; and,
- That the defendant was involved in the supply or offer to supply; and,
- That the defendant knew the nature of the enterprise, namely that it involved the supply or offer to supply drugs.
Supply of controlled drug near school premises or involving child
This is not technically a stand-alone offence but instead requires the court to treat a supply offence as ‘aggravated’ if certain conditions are met, which are thought to increase the seriousness of the offence.
The relevant conditions are:
- The offence was committed on or in the vicinity of school premises at a ‘relevant time’; or,
- An under 18-year-old was used as a courier in the commission of the offence.
Where those conditions are met, the court is required to treat the offence more severely than simple supply, and any sentencing will accordingly be more serious.
Penalties available for supply offences
Sentencing for any supply case is complicated and will depend on the quantity of drugs involved and the role of the offender – for example, social supply as opposed to supply for financial gain. There are guidelines for sentencing here. These outline the range of sentences available for supply cases:
Class A
- Maximum: Life imprisonment
- Offence range: High level community order – 16 years’ custody
Class B
- Maximum: 14 years’ custody and/ or unlimited fine
- Offence range: Band B fine – 10 years’ custody
Class C
- Maximum: 14 years’ custody and/ or unlimited fine
- Offence range: Band A – 8 years’ custody
There is more information on this issue in sentencing for drug offences.
Offences under the Psychoactive Substances Act 2016
The Psychoactive Substances Act 2016 was introduced in response to “legal highs”. It applies to any psychoactive substances, defined in section 2 of the Act as anything capable of producing a psychoactive effect by stimulating or depressing the central nervous system. The Psychoactive Substances Act 2016 therefore covers novel substances entering the market before they are specifically controlled under the Misuse of Drugs Act 1971. The definition is deliberately broad and creates grey areas.
Although possession of a psychoactive substance is only prohibited in a custodial institution under the Psychoactive Substances Act 2016, supply remains an offence. This includes supply, offer to supply, aggravated supply, and possession with intent to supply. These offences are found in section 5-7 of the Psychoactive Substances Act 2016, and broadly mirror the equivalent offences in the Misuse of Drugs Act 1971, but there are separate Sentencing Council Guidelines found here:
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.