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.
What happens if I am caught in possession of a controlled drug?
The National Police Chiefs’ Council have issued a framework for police forces to implement the use of Out of Court Disposals. You can read this in full here. While this is the overall strategy the actual implementation may vary across different police forces. The framework envisages three possible responses for officers to take where they believe they have found an individual in possession of a controlled drug for personal use.
This guidance replaces the old framework for dealing with cannabis possession offences, although we are aware that a few forces are still issuing cannabis warnings and penalty notices for disorder for this offence. More information about how the previous system worked can be found here.
1. Community Resolutions
A person found in possession of a controlled drug for the first time can be offered a Community Resolution. To be eligible you must admit responsibility, which in effect will be an admission of possession. The framework implies that more than one of these can be received, so long as at least 12 months have passed since the last time one was issued for the same or similar offence. 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. Failure to comply with the conditions can lead to a prosecution, but only in exceptional circumstances. However it is a risk if you decide to not comply with the conditions.
A Community Resolution does not form part of your criminal record, or count as a criminal conviction. However, it would be eligible to be disclosed as part of an enhanced DBS/CRB check.
The Police can also consider issuing a Penalty Notice for Disorder as an alternative to a Community Resolution. PNDs are potentially going to 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/CBR 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, but this will probably result in arrest and the potential for a formal charge.
2. Conditional Cautions
A person who has recently had a Community Resolution, or otherwise where one is not thought appropriate, may be offered a Conditional Caution. 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 also 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. The framework gives a single example of this being that over two years have passed since an earlier Conditional Caution was issued.
While a Conditional Caution is a less severe outcome than a conviction, it does form part of your criminal record. 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.
(Simple Cautions – cautions without conditions attached - are still available in some circumstances, but we anticipate Police forces will be moving to Conditional Cautions in the majority of cases.)
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 Summons informing you what you have been charge 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.
Prosecutuion 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.
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.
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.
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 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.
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:
Maximum: 7 years’ imprisonment and/or a fine.
Offence range: Fine – 51 weeks’ imprisonment.
Maximum: 5 years’ imprisonment and/or a fine.
Offence range: Discharge – 26 weeks’ imprisonment.
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.