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.

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 formal caution - 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. Cautions are dealt with at the police station and you must admit that you are guilty of the offence to receive one. This is not a conviction, but does stay on your criminal record and can affect education, employment and travel. It is possible to get another caution if you are arrested another time. Cautions can have conditions added to them, such as drug treatment, but most don’t.

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 caution.

If you are caught in possession of cannabis or khat for personal use there is a system in place which allows police to issue a warning for first time offenders. If you are caught on a second occasion an on-the-spot fine can be issued. Neither of these penalties form part of a criminal record. Information on the cannabis warning scheme and the khat warning scheme can be found in our Drugs A-Z or by clicking on the links.

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 the introduction of testing on arrest. However, these tests are used solely for the purposes of referral to the Drug Interventions Programme 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 – Community Order.

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

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