There are a number of illegal activities related to drugs that are controlled under the Misuse of Drugs Act 1971. These offences are outlined below, with more information on each specific offence accessible through clicking on the relevant heading.
It is unlawful to have a controlled drug in your possession unless you have authorisation in the form of a licence - for example, a prescription - or if you did not know the substance was a controlled drug.
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 the substance.
- The substance is a controlled drug. 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 turns out not to be, they can still 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 of possession.
It is an offence for a person to have a controlled drug in their possession, whether lawfully or not, with the intent to supply it to another who has no legal right to possess it.
Supply is the simple act of passing a controlled drug from one person to another. It does not matter if it was for profit or not. The issue of financial gain is only relevant for the purposes of sentencing.
There are several offences connected with the supply of drugs. The main offences are:
- Actual supply
- Offer to supply
- Being concerned in supply
- Aggravated supply
- Possession with intent to supply
The two main production offences are:
- Production of a controlled drug; and,
- Being concerned in the production of a controlled drug.
Production is defined as ‘manufacturing, cultivating or production by any other method’. For example, separating those parts of the cannabis plant which are not usable from those which are, is considered preparation and, therefore, can amount to the offence of production.
It is unlawful to cultivate any part of a cannabis plant. 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.
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.
Importation & Exportation of controlled drugs (Section 3 Misuse of Drugs Act 1971 & Sections 50, 68 & 170 Customs & Excise Management Act 1979)
The importation or exportation of any controlled drug is prohibited unless it is done in accordance with the terms of a licence granted by the Secretary of State (Home Office) and in compliance with any conditions attached to the licence.
Schedule 4 (ii) drugs (e.g. steroids) can be imported or exported provided that they are for personal use and carried in or out of the country by the person intending to use them.
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.
Please see our guide on the Psychoactive Substances Act 2016.