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Drug Offences, incorporating the Charging Standard

Principle

The legal restrictions placed in the use of controlled drugs are aimed at preventing drug abuse. The principal offences relating to the misuse of controlled drugs are contained in the Misuse of Drugs Act 1971 ("the Act") and most of the offences dealt with in this section are created by the Act. The primary objective of the Act is the control of the use and distribution of dangerous and harmful drugs. The Act classifies the drugs according to the degree of harm likely to be involved in their use. They are defined as "controlled drugs" of Classes A, B or C.

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Temporary Class Drug Orders

From 15 November 2011, the Home Secretary (HS) will be able to designate a substance or product as a temporary class drug by means of a Temporary Class Drug Order (TCDO). Convictions relating to temporary class drug will attract levels of punishment the same as those for Class B Drugs under the Misuse of Drugs Act 1971 (MDA).

Introduction of TCDOs follows amendments to the MDA, detailed in Schedule 17 to the Police Reform and Social Responsibility Act 2011 (PRSRA) (see link below).

A TCDO, made by Statutory Instrument, can specify a substance or product as a drug subject to temporary control only if two conditions are met: (1) the substance or product must not be a Class A drug, a Class B drug or a Class C drug, and (2) the HS must have either determined following consultation with, or received recommendation from, the Advisory Council on the Misuse of Drugs that the order should be made. The HS's determination can only be made if the substance or product is a drug that is being, or likely to be, misused and that misuse is having, or is capable of having, harmful effects. A TCDO can last no longer than a year beginning with the day on which the order comes into force.

Schedule 17 (PRSRA) further amends the MDA, introducing an offence of obstructing a constable in their work relating to temporary controlled drugs. Punishment for a conviction will be the same as those in Schedule 4 of the MDA for conviction of a section 23(4) offence. It also updates Schedule 1 to the Customs and Excise Management Act 1979 and section 19 of the Criminal Justice (international Co-operation) Act 1990.

Link to the Police Reform and Social Responsibility Act 2011.

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Charging

Drug Offences Standard

The purpose of the drug offences' standard is to ensure that the most appropriate charge is selected for offences covered by the Act. The section provides the standard about the charges(s) which should be preferred in order to meet the criteria set out in the Code for Crown Prosecutors.

The standard set out below: 

  • Should not be used in the final determination of any investigatory decision, such as the decision to arrest;
  • Does not override any guidance issued on the use of appropriate alternative forms of disposal short of charge, such as cautioning or conditional cautioning;
  • Does not override the principles set out in the Code for Crown Prosecutors;
  • Does not override the need for consideration to be given in every case as to whether a charge/prosecution is in the public interest;
  • Does not remove the need for each case to be considered on its individual merits or fetter the discretion to charge and to prosecute the most appropriate offence depending on the particular facts of the case.

Adoption of this standard should lead to a reduction in the number of times charges have to be amended which in turn should lead to an increase in efficiency and a reduction in avoidable extra work for the police, CPS and the courts.

The standard covers the following offences:

Possession offences

  • possession - s.5(1) of the Act;
  • possession with intent to supply - s.5(3) of the Act.

Supply offences

  • supplying a controlled drug - s.4(3)(a) of the Act;
  • being concerned in a supply - s.4(3)(b) of the Act;
  • offering to supply - s.4(3)(a) of the Act;
  • being concerned in an offer to supply - s.4(3)(c) of the Act.

Production offences

  • production of a controlled drug - s.4(2)(a) of the Act;
  • being concerned in the production - s.4(2)(b) of the Act;
  • cultivation of the cannabis plant - s.6(2) of the Act.

Occupier offences

  • permitting premises to be used for producing - s.8(a) of the Act;
  • permitting premises to be used for supplying - s.8(b) of the Act;
  • permitting premises to be used for smoking cannabis etc. - s.(8)(d) of the Act.

Opium related offences

  • smoking or using prepared opium - s.9(a) of the Act;
  • frequenting a place used for opium smoking - s.9(b) of the Act;
  • permitting premises to be used for preparing opium for smoking - s.8(c) of the Act;
  • possessing pipes or other utensils in connection with the preparation or smoking of opium - s.9(c)(i) and (ii) of the Act.

Supply of articles offences

  • of articles for administering controlled drugs - s.9A(1) of the Act;
  • of articles for preparing controlled drugs for administration - s.9A(3) of the Act.

Obstruction offences

  • s.23 of the Act.

General Charging Practice

Police Officers and Prosecutors should always have in mind the following general principles when selecting the appropriate charge(s):

  • the charge(s) should accurately reflect the extent of the accused's alleged involvement and responsibility thereby allowing the courts the discretion to sentence appropriately;
  • the choice of charges should ensure the clear and simple presentation of the case particularly when there is more than one accused;
  • there should be no overloading of charges by selecting more charges than are necessary just to encourage the accused to plead guilty to a few;
  • there should be no overcharging by selecting a charge which is not supported by the evidence in order to encourage a plea of guilty to a lesser allegation

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Public Interest Considerations: General

The public interest criteria may be prominent in drug cases, particularly where the drugs are of the so-called "softer" variety and where the amounts involved are small.

Please refer to the contents of the Home Office cautioning guidelines: refer to Cautioning and Diversion, elsewhere in the Legal Guidance.

AIDS and Needle Exchange Schemes

It is well known that viruses including HIV and hepatitis C can be transmitted between drug users who use the same injecting equipment. A number of schemes have been established to provide counselling and exchange facilities where sterile equipment can be obtained.

These schemes need police and CPS co-operation because those who run and use them will necessarily commit offences under the Act. It is therefore not normally in the public interest to prosecute: 

  • a drug user retaining used needles; 
  • a drug user possessing sterile needles; 
  • bona fide operators of schemes.

Simple possession cases that are based on police surveillance at or near exchange centres should not normally be prosecuted. The need to prevent the spread of serious infections outweighs the normal requirement for prosecution.

Prosecution may be required when a scheme is not being operated properly, for example when: 

  • the provider of equipment was a party to the supply of drugs; 
  • the user has committed what may be a more serious offence, such as assisting with the supply of controlled drugs by giving X a needle to inject Y.

The drug user as a witness

There is no reason why a user of drugs should not be called as a witness against a supplier: refer to Evidential Considerations - The Drug User as a Witness, below.

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Guidance

Charging Standard: General

The Act creates a number of offences and any one set of facts may give rise to more than one offence. Police Officers and Prosecutors should ensure that the offence(s) charged is the most appropriate to reflect the criminality of the defendant. For example, in a case where there is a prima facie evidence of supplying, possession with intent to supply, being concerned in the supply and permitting premises to be used for supply, it will be unnecessary to charge all offences. The facts and the defendant's overall criminality require careful consideration before the appropriate allegation is made.

Police Officers and Prosecutors must avoid more than one class of drug in a single charge. Such a charge would be bad for duplicity (R v Courtie (1984) 1 All ER 740) and refer to Drafting the Indictment, elsewhere in the Legal Guidance. Charging cannabis or cannabis resin in the same count is not bad for duplicity (R v Best and Others (1979) 70 Cr. App. R 21).

It is best practice to charge different drugs from the same Class in different counts.

Charging Standard: Use of Alternative Charges

Although an indictment should never be overloaded with unnecessary counts, Prosecutors should always consider the use of alternative counts in cases where the defendant's culpability is uncertain. For example, where the evidence of intent to supply is not conclusive, an alternative count for simple possession may be justified. On the other hand, if the prosecution case is that the defendant is heavily involved in the supply of drugs, a count for simple possession would detract from that allegation.

It is impossible to be prescriptive when deciding upon the use of alternative counts. If a plea of guilty to the lesser alternative count would not be acceptable, Prosecutors should think carefully before using such a charge.

Alternative counts should never be used in order to 'force' a plea from a defendant.

For further information, refer to Drafting the Indictment, elsewhere in the Legal Guidance.

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Charging Standard: Joint Charges

As with any offence involving more than one defendant, Prosecutors must consider carefully the rules of joinder. Drug offences call for particular care where drugs are found in premises occupied by more than one person, or in a car in which there is more than one occupant. Mere knowledge of the existence of drugs is not enough to prove an allegation of joint possession; it is necessary to show that each defendant participated in the offence charged. The prosecution may have to prove either that the drugs have come from a "pool" from which they all might draw or by some other means that each defendant is liable as either a principal or secondary party (Archbold 2011, 1-235, 1 - 245 ).

If considering charging conspiracy, then Prosecutors will need to assess whether a conspiracy is the best way of presenting the case or whether substantive offences are more appropriate. In cases involving supply where it is difficult to prove specific acts of supply it may well be more appropriate to proceed by way of a conspiracy count in order to demonstrate the overall criminality of the case. Indictments may contain a conspiracy count as well as substantive counts but the judge will require the prosecution to justify their joinder and in the absence of such justification the prosecution will have to elect whether to proceed on the conspiracy or the substantive counts. Joinder is justified where the interests of justice demand it. This may occur where, for example, of three defendants two are husband and wife and there is a possibility of the third being acquitted. Joinder is not generally justified where the substantive counts are merely sample counts illustrative of the way the conspiracy was carried out.

For more guidance for indictments containing conspiracy counts, refer to (Archbold 2011, 1-190; 33-45).

Charging Standard: Sentencing Considerations

Awareness of the sentencing framework will often be of help when assessing the appropriate charge. Prosecutors should be aware of the guidelines for cannabis in (R v Aramah (1983) 76 Cr. App. R. 190) and the basis for sentencing large scale importation and the supply of certain Class A drugs in (R v Arunguren, TLR 23 Jun 1994).

In R v Arunguren, TLR 23 Jun 1994, Court of Appeal departed from earlier considerations of street value and stated that weight and purity are to be the guiding factors, in so far as this part of the sentencing exercise in relation to cocaine and heroin is concerned. The Court will calculate the weight of a consignment of 100% pure drug and sentence accordingly. The Court declined to give guidance for other Class A drugs such as LSD.

In major drug cases involving heroin and cocaine, Prosecutors should take into account the information that the court requires for sentencing purposes when deciding on the charges to prefer and the evidence to be led in support of those charges.

Prosecutors should also take into account the powers that the court may have to make a confiscation order under POCA 2002. See s.75 of that Act and Schedule 2, para 1 which specifies the provisions in the 1971 Act where a conviction will bring the defendant within s.75. (Archbold 2011, 5-653). Refer to Proceeds of Crime elsewhere in the Legal Guidance.

In the case of an offence contrary to section 4(2) or 4(3) of the 1971 Act Prosecutors should also consider the possibility of the court making a Travel Restriction Order (sections 33 and 34, Criminal Justice and Police Act 2001). (Note that the definition of a "drug trafficking" offence is different for TROs than POCA).

Where an offender has been convicted of a "drug trafficking offence" as defined in s. 34 CJPOA 2001 the court is required to consider whether to make such an order, and to state its reasons if it decides not to make such an order.

Sentencing Council Definitive Guideline

The Sentencing Council has published the Drug Offences Definitive Guideline. This takes effect from 27 February 2012 and replaces any previous guidelines. It applies to all offenders aged 18 and over who are sentenced on or after 27 February 2012 regardless of the date of the offence.

The guideline specifies offence ranges and the range of sentences appropriate for each type of offence. It covers the more commonly sentenced offences which are importation, production, supply, permitting premises to be used for drug offences and possession. All drugs from class A to C are covered by this guideline.

Within each drug offence, the Council has specified three categories which reflect varying degrees of seriousness. The offence range is split into category ranges - sentences appropriate for each level of seriousness. The Council has also identified a starting point within each category.

The key provisions include a stepped process to be followed by sentencers as well as starting points which set out the position within a category range from which to start calculating the provisional sentence. Starting points apply to all offences within the corresponding category and are applicable to all offenders. Once the starting point is established, the court should consider further aggravating and mitigating factors and previous convictions so as to adjust the sentence within the range. Starting points and ranges apply to all offenders, whether they have pleaded guilty or been convicted after trial. Credit for a guilty plea is taken into consideration only at step four in the decision making process, after the appropriate sentence has been identified.

A prison sentence can now be expected for selling drugs for profit and could go up to 16 years for a single incident depending on the quality of drugs involved.

Supplying drugs to those under 18 has been introduced as an aggravating factor and is likely to attract a longer sentence.

The Sentencing Manual templates for drug offences has been updated to reflect the changes introduced by the Drug Offences Definitive Guideline. Templates are accessible for appeals against sentences passed prior to 27 February 2012.

http://sentencingcouncil.judiciary.gov.uk/docs/Drug_Offences_Definitive_Guideline_(web).pdf

The case of R v Boake and others (2012) EWCA Crim 838 demonstrates how the Sentencing Council Definitive Guideline on Drug Offences is applied to couriers, who come in many different guises. All couriers are not treated the same under these guidelines, and the sentence to be passed will depend on their role and all the surrounding circumstances.

In particular para 35 (R v Boake and others) states:

'... A third-world offender exploited by others will be likely to be assessed by the judge as having a lesser role: see the expressions "performs a limited function under direction", "engaged by pressure, coercion, intimidation", and "involvement through naivety, exploitation".'

Para 36 goes on to say:

'By contrast, the courier who is wordly wise, who knows what he or she is doing, and does it as a matter of free chioce for the money, is likely to be assessed as having a significant role: see the expressions "motivated by financial or other advantage, whether or not operating alone" and sometimes "some awareness and understanding of the scale of the operation".'

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Charging Standard: Mode of Trial Guidelines

The guidelines should not be used to determine the appropriate charge. They will only fall to be considered once the charge(s) have been decided upon and venue for the trial becomes relevant.

The following mode of trial and penalties apply:

Possession of a Controlled Drug

Possession of a controlled drug is an either way offence. The maximum penalty depends on both the trial venue and the class of drugs.

Magistrates' court: 

  • Class A drug: £5000 fine and/or 6 months' imprisonment 
  • Class B drug: £2500 fine and/or 3 months' imprisonment 
  • Class C drug: £1000 fine and/or 3 months' imprisonment

Crown Court: 

  • Class A drug: Unlimited fine and/or 7 years' imprisonment
  • Class B drug: Unlimited fine and/or 5 years' imprisonment 
  • Class C drug: Unlimited fine and/or 2 years' imprisonment

Possession with Intent to Supply

Possession of a controlled drug with intent to supply it is an either way offence. The maximum penalty depends on both the trial venue and the class of drug.

Magistrates' court: 

  • Class A drug: £5000 fine and/or 6 months' imprisonment 
  • Class B drug: £5000 fine and/or 6 months' imprisonment 
  • Class C drug: £2500 fine and/or 3 months' imprisonment

Crown Court: 

  • Class A drug: Unlimited fine and/or life imprisonment 
  • Class B drug: Unlimited fine and/or 14 years' imprisonment 
  • Class C drug: Unlimited fine and/or 14 years' imprisonment

Supplying Controlled Drugs

Supplying a controlled drug is an either way offence. The maximum penalty depends on both the trial venue and the class of drug.

Magistrates' court: 

  • Class A drug: £5000 fine and/or 6 months' imprisonment 
  • Class B drug: £5000 fine and/or 6 months' imprisonment 
  • Class C drug: £2500 fine and/or 3 months' imprisonment

Crown Court: 

  • Class A drug: Unlimited fine and/or life imprisonment 
  • Class B drug: Unlimited fine and/or 14 years' imprisonment 
  • Class C drug: Unlimited fine and/or 14 years' imprisonment

Producing Controlled Drugs/Cultivating Cannabis

Producing a controlled drug and cultivating cannabis are either way offences. The maximum penalty depends on both the trial venue and the class of drug.

Magistrates' court:

  • Class A drug: £5000 fine and/or 6 months' imprisonment 
  • Class B drug: £5000 fine and/or 6 months' imprisonment 
  • Class C drug: £2500 fine and/or 3 months' imprisonment

Crown Court: 

  • Class A drug: Unlimited fine and/or life imprisonment 
  • Class B drug: Unlimited fine and/or 14 years' imprisonment 
  • Class C drug: Unlimited fine and/or 14 years' imprisonment

(The penalties for cultivating cannabis under s.6 of the Act are identical to those shown above for producing a class b controlled drug).

Occupier Offences

Occupier offences are either way offences. The maximum penalty depends on both the trial venue and the class of drug.

Magistrates' court: 

  • Class A drug: £5000 fine and/or 6 months' imprisonment 
  • Class B drug: £5000 fine and/or 6 months' imprisonment 
  • Class C drug: £2500 fine and/or 3 months' imprisonment

Crown Court: 

  • Class A drug: Unlimited fine and/or 14 years' imprisonment 
  • Class B drug: Unlimited fine and/or 14 years' imprisonment 
  • Class C drug: Unlimited fine and/or 14 years' imprisonment

Opium related offences

Opium related offences are triable either way. The maximum penalties are as follows:

Magistrates' court: 

  • £5000 fine and/or 6 months' imprisonment

Crown Court: 

  • Unlimited fine and/or 14 years' imprisonment

S.9A Offences

Offences under s.9A are triable summarily only. The maximum penalty is as follows:

Magistrates' court: 

  • £5000 fine and/or 6 months' imprisonment

Obstruction Offences

Obstruction offences under the Act are either way offences. The maximum penalties are as follows:

Magistrates' court: 

  • £5000 fine and/or 6 months' imprisonment

Crown Court 

  • Unlimited fine and/or 2 years' imprisonment

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Charging Standard: Possession of controlled drug

The offence of possession of a controlled drug is committed when a person is unlawfully in physical possession or in control of any substance or product specified in Part I, II or III of Schedule 2 of the Act and had knowledge of possession of the item even if he did not know it was a controlled drug. This includes anything subject to his control, even if it was in the custody of another.

A person found in possession of one form of drug, believing it to be another form of drug should be charged with the substantive offence of possession of the actual drug. He should not be charge with attempted possession of the drug he believed it to be.

Crack cocaine is a Class A controlled drug, being a "preparation or other product containing a substance" which is a controlled drug (Schedule 2 part 1 paragraph 5 of the Act) (Archbold 2011, 27-14). It is cocaine for the purposes of the Act, see R v Russell (1992) 94 Cr. App. R 351.

The Court of Appeal ruled that the prohibition of possession of cannabis did not infringe a defendant's rights under Articles 8 and 9 of the European Convention on Human Rights (R v Taylor, TLR 15 November 2001).

Public Interest Considerations: Possession of Controlled Drug

A prosecution is usual when a case involves the possession of a Class A drug.

A prosecution is also usual for the possession of more than a minimal quantity of Class B or C drugs. Police Officers and Prosecutors should take into account the general public interest factors listed in the Code for Crown Prosecutors.

Khat

In deciding whether it is in the public interest to prosecute an offence of the simple posession of Khat, a class C drug, prosecutors need to have regard to whether ACPO Guidelines on Khat Poession for Personal Use have been followed.

In summary

First offence - Khat Warning. Unless there are aggravating features (quantity of drug, offences committed in busy public place, children present or there are related offending or anti-social beahviour), or the suspect is a repeated and persistent offender (for any tyope of offence), in which case PND or chrage should be considered. 

Second offence - Penalty Notice for Disorder (PND). If the suspect does not admit the offence, then the officer can only issue the PND, if there is sufficient evidence that the offence has been committed. for identification of Khat in these circumstances, see below

Third or subsequent offence - arrest/charge

For the detail of the National Guidelines please see: http://www.acpo.police.uk/professionalpractice/crime.aspx


 Charging Standard: Supply/Possession with intent to supply/Offering to supply

Supplying includes distribution (section 37(1)) and does not require proof of payment or reward. It must be unlawful and where required a controlled drug. For more detailed discussion, see Archbold 2011, 27- 45 to 27- 49.

The definition of supply can be found in R v Maginnis (1987) 1 All ER 907 the House of Lords decision: denotes more than mere transfer of physical control, recipient enabled to apply the thing handed over to purposes for which he desires or has a duty to apply it. A return of drugs to the "trafficker" would be a supply.

In R v Panton, TLR 27.03.2001, the Court of Appeal held that the phrase "supply" includes the retention and return of controlled drugs deposited with a "custodier" by another person, applied notwithstanding the custodier's lack of consent to the arrangement.

The motive of the supplier is irrelevant and should not be confused with his intention (R v X (1994) CLR 827). Where two people agree to buy drugs for themselves, it is undesirable to charge one who happens to take physical possession of the drugs with the supply of drugs when he distributes the others share to him. Although there is technically a supply, it was inevitable that a person convicted on the basis of such a distribution would be dealt with as for simple possession (R v Denslow (1998) CLR 566).

Where the evidence supports a charge of supplying or possessing controlled drugs of any class with intent to supply, such a charge should normally be proceeded with.

Possession with intent to supply a controlled drug under s.5(3)of the Act, is a suitable charge in circumstance when a charge of possession would be justified together with evidence of an intent to supply.

As in the case with straight possession, a person found in possession of one form of drug but believing it to be another form of drug and intending to supply it to another should be charged with possession with intent of the actual drug.

The intent must relate to a future supply of controlled drugs. If the evidence points to past supply, a charge of supplying may be appropriate.

Prosecutors should always consider whether a charge for past supplying of drugs is more appropriate than a charge for possession with intent. This is particularly important where the evidence to establish a future intent is unclear.

In addition to the supply of a controlled drug, Section 4(3) of the Act creates offences of offering to supply, being concerned in the supply and being concerned in the making of an offer to supply. An offence of offering to supply can be prosecuted simply by proving the existence of an offer. The prosecution does not have to prove either that the defendant intended to produce the drugs or that the drugs were in his/her possession.

A defence under section 28 of the Act will not be applicable as the offence is the making of the offer. In deciding whether there has been an offer Prosecutors DO NOT have to refer to Contract Law (R v Dhillon (2000) CLR 760). The fact that the drug is different/not controlled/bogus is irrelevant as is the fact that there is/was no intention to supply (R v Goodard (1992) CLR 588; R v Mitchell (1992) CLR 723; R v Prior (2004) EWCA Crim 1147). The offer may be by words or conduct (R v Showers (1995) CLR 400). The exact identity of the substance is irrelevant.

The offences of being concerned will cover conduct which is preparatory to the actual supply, although the prosecution must prove that a supply, or an offer to supply, has been made. Prosecutors must examine the actual conduct of the defendant carefully to decide which offence is the most appropriate.

If A injects B with a drug belonging to B, A is not supplying a drug in contravention of S4(1) (R v Harris (1968) 1WLR 769).

However, consider offences under the Offences Against the Person Act 1861 and whether they could apply. S23 and S24 Offences against the person Act 1861 (Archbold 2011, 19-223 to 231), also refer to Offences against the Person incorporating the Charging Standard, elsewhere in the Legal Guidance.

S23 Unlawfully and Maliciously administer, or cause to be administered to or taken by, any other person any poison or other destructive or noxious thing so as to endanger the life of such person or thereby inflicting upon any grievous bodily harm. Maximum sentence of 10 years, indictable only.

S24 Unlawfully and Maliciously administer or cause to be administered to or taken any poison or other destructive or noxious thing with intent to injure, aggrieve or annoy such person. Maximum sentence of 5 years, indictable only.

Noxious thing is a question of fact and degree for the jury. A substance that may be harmless in small quantities may be noxious in the quantity administered. The meaning of the word is widely drawn. Heroin is a noxious thing and the fact it is administered to a person with a high degree of tolerance is irrelevant (R v Cato (1976) 62 Cr App R 41).

Intent to injure may depend on the purpose for which the noxious substance was administered. Examples of an intent to injure include giving a baby methadone to keep it quiet where the child is born addicted because of the mother's addiction, to facilitate unwelcome advances etc. as in date rape cases.

Public Interest Considerations: Supply/Possession with intent to supply/Offering to supply

The supply of Class A drugs, their possession with intent to supply or their importation will almost always justify a prosecution. These are the most serious offences in the Act and will often attract substantial custodial sentences. Circumstances where a prosecution for such an offence is not in the public interest will be very rare.

Similar considerations apply to drugs of Class B and C, although there may be exceptional circumstances where possession with intent to supply a small amount of drugs of these Classes need not be charged on public interest grounds. For example, a charge of possession or even a caution may be appropriate where two young persons have pooled their resources and purchased cannabis which one shares with the other.

See also Production Offences below.

Charging Standard: Production Offences

An offence of production is committed when a suspect has some identifiable participation in the process of producing, by manufacture, cultivation, or any other method, a controlled drug specified in Part I, II or III of Schedule 2 of the Act (Archbold 2011, 27-28 to 34).

An offence of being concerned in the production of a controlled drug requires:

  • evidence that a controlled drug was produced; and 
  • evidence of some link between the suspect and the production process, (for example providing suitable premises or equipment); and 
  • evidence that the suspect knew that a controlled drug was being produced.

Prosecutors should charge: 

  • production of controlled drug under s(4)(2)(a) when there is evidence of actual participation in the production; 
  • being concerned in the production of a controlled drug under s.4(2)(b) when there is evidence of knowledge of commercial production and indirect participation in that production.

Production includes cultivation and, whilst there is a separate offence of cultivation of cannabis under s.6 of the Act (Archbold 2011, 27-79), a charge under s.4 (1) (a) of the Act of producing cannabis will usually be more appropriate (see below).

Technically, production also includes conversion of one drug to another, such as the production of 'crack' cocaine from cocaine hydrochloride. (See R v Russell (P.A.) (1992) 94 Cr. App. R. 351, CA. also see (Archbold 2011, 27-33)

Production and Possession with Intent to Supply

Where the production of the drug has moved on to the stage of it being in an advanced state of preparedness and ready for onward distribution, although it may sometimes be appropriate for there to be an additional charge of possession with intent to supply, it would very much depend on the circumstances of the case as to whether such an additional charge was brought. Relevant factors would include the quantity and the location of the prepared product, along with the steps that had been taken to make it ready for onward supply.

This issue arose in R v Auton (John) [2011] EWCA Crim 76 where Lord Justice Hughes addressed similar issues when considering a series of conjoined appeals against sentence for matters involving the production of cannabis. His Lordship commented that:

"The proper inference as to what cultivation entailed and what would be likely to happen to the product depends on the fact of each case. In most cases, and not only where the plants have not yet been harvested, it will not be possible to frame a count of possession of identified material with intent to supply. The issue must be dealt with by the judge."

LJ Hughes also went on to say that:

"that does not mean that a Newton Hearing will be needed in every, or even most cases. If however the basis of the plea is accepted by the judge, then on ordinary principles he must honour it in passing."

It will often therefore not be necessary nor indeed possible for there to be additional counts of supply/possession with intent to supply, even where the production of the drug has moved on to the next stage of being prepared for onward distribution.

In one of the appeals in Auton and others, the appellant, as well as having significant amounts of cannabis in the growth/production stages, had 1.7 kilogrammes of dried cannabis ready for use. He was sentenced for production alone. The Court of Appeal endorsed the approach that any issue around the use/supply of the cannabis was properly resolved by the judge through holding of a Newton Hearing.

Public interest considerations: Production Offences

Cultivation of Cannabis Plants v Production

In determining whether or not to charge cultivation as opposed to production of cannabis, since both offences carry the same maximum sentence, the principal difference between the offences lies in the application of the Proceeds of Crime Act (POCA) 2002.

Production comes within the list of Lifestyle Offences, (see Schedule 2 POCA) which allows the courts scope for making a wider confiscation order where a defendant is shown to have benefited from their criminal conduct.

The scenarios in which cannabis is grown vary widely and prosecutors should be aware of this when deciding which charge is more appropriate. At one end of the spectrum, organised criminals develop highly sophisticated operations for the production of cannabis in large quantities. At the other end cannabis may be grown on a relatively small scale, without there being any evidence of onward supply, and it will possibly have been grown because of a belief in its assistance in alleviating medical conditions.

The public interest stage of the Full Code Test in the Code for Crown Prosecutors covers a range of factors for and against prosecution, including if the defendant was at the time of the offence, suffering from mental illness or ill-health. Such a consideration is a factor against prosecuting unless the offence is serious or there is the possibility that it may be repeated. Each case will be decided on its own merits.

However, Prosecutors should be aware that once a person goes beyond the growing and tending of a cannabis plant and starts to prepare parts of the plant for consumption, this would fall within the remit of the activity envisaged by the term 'production'. Section 37(1) Misuse of Drugs act 1971 defines the word 'produce' as meaning 'producing it by manufacture, cultivation or any other method'. This covers situations in which cannabis is being cultivated.

Where 'production' is charged, although the criminal lifestyle assumptions may be triggered, prosecutors will sometimes accept that the assumptions will not apply. This may arise if the assumptions are likely to be shown to be incorrect or if reliance on the assumptions would lead to serious risk of injustice (section 10(6) of the Proceeds of Crime Act 2002). This will not generally be clear at the time of charge as a financial investigation may yet to have been completed.

Prosecution of Young Defendants charged with Offences who might be Trafficked Victims

There may be instances where a youth faces criminal charges when he/she is a trafficked victim and the offences were committed when that person was in a coerced situation.

Recent cases have highlighted the following offences as those that are likely to be committed by child trafficked victims: 

  • theft (in organised "pick pocketing" gangs), under section 1 Theft Act 1968; 
  • cultivation of cannabis plants, under section 6 Misuse of Drugs Act 1971

Prosecutors should be alert to the possibility that in such circumstances, a young offender may actually be a victim of trafficking and have committed the offences under coercion.

Where there is clear evidence that the youth has a credible defence of duress, the case should be discontinued on evidential grounds. Where the information concerning coercion is less certain, further details should be sought from the police and youth offender teams, so that the public interest in continuing a prosecution can be considered carefully. Prosecutors should also be alert to the fact that an appropriate adult in interview could be the trafficker or a person allied to the trafficker.

Any youth who might be a trafficked victim should be afforded the protection of our child care legislation if there are concerns that they have been working under duress or if their well being has been threatened.

In these circumstances, the youth may well then become a victim or witness for a prosecution against those who have exploited them. The younger a child is, the more careful investigators and prosecutors have to be in deciding whether it is right to ask them to become involved in a criminal trial.

Prosecutors are reminded of the principles contained within Children and Young People - CPS Policy on Prosecuting Criminal Cases involving Children and Young People as Victims and Witnesses, and in particular, our commitment to always consider what is best for children in criminal cases.

See Youth Offenders elsewhere in the Legal Guidance..

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Charging Standard: Occupiers or managers of premises

An occupier offence should be charged when the suspect is the occupier of the premises concerned, or is involved in its management.

A suspect is an "occupier" if, whatever his legal status, he has a degree of control which would enable the exclusion of other people.

A suspect is concerned in the management of premises if he runs them, organises them or plan the running of them.

The fact that the suspect is trespasser or squatter will not be a defence.

The suspect must knowingly permit (wilful blindness may be sufficient, but not mere suspicion), or suffer the taking place on those premises, of either the:

  • production or attempted production of a controlled drug; or 
  • supply or attempted supply or offer to supply a controlled drug; or
  • preparing of opium for smoking; or
  • smoking of cannabis, cannabis resin or prepared opium.

The mere giving of permission will not be sufficient: the activity (smoking) must have taken place. (R v Auguste, TLR 15 Dec 2003.)

An occupier offence should be charged when the suspect is an occupier or is concerned in the management and has permitted premises to be used to facilitate the commission of the offence of producing, supplying or smoking a controlled drug, for example, the landlord of a public house when smoking occurs or where the manager of a club has permitted the supply of drugs to take place within the club.

Production or supply of a controlled drug should be charged if the occupier or manager of the premises is a party to the production or supply of controlled drugs on the premises (section 4 of the Act).

A possession offence should be charged when the occupier of premises is a party to consumption consistent with personal use, for example: 

  • the host who either smokes cannabis with his guests at a party in his home or permits them to do so;
  • one co-tenant of rented premises knowingly permitting the other co-tenant to smoke cannabis there (see s.8 of the Act). (Archbold 2011, 27-84).

Where there is substantive evidence of supply or possession with intent to supply against the principal, an additional charge contrary to section 8 of the Act will usually be unnecessary. Where an occupier or a person concerned in the management permits others to use the premises to produce, supply or smoke drugs, such a charge will be proper provided that the requisite level of knowledge can be proved (Archbold 2011, 27-87).

In such cases, the defendant's belief that he had taken reasonable steps to prevent drugs being supplied, does not afford a defence to permitting premises to be used for supplying drugs (R v Brock and Wyner (2001) 2 Cr. App. R. 3).

It is not necessary for the Crown to prove more than knowledge of the supply of a controlled drug even where the particular drug is specified (R v Bett (1999) 1 Cr. App. R. 361) and see Archbold 2011, 27-87.

Charging Standard: Opium Related Offences

Preparing of opium for smoking; or smoking of cannabis, cannabis resin or prepared opium will be encountered rarely, but it is an offence for a person to: 

  • smoke or otherwise use prepared opium; 
  • frequent a place used for opium smoking; 
  • have in his possession pipes or other utensils for use in connection with the preparation or use of opium for smoking.

See (Archbold 2011, 27-89) and the possible application of s28 as to proof of lack of knowledge (Archbold 2011, 27-123).

(For the offences of preparing of opium for smoking and/or smoking of cannabis, cannabis resin or prepared opium, refer to Charging Standard: Occupiers or managers of premises above.

Charging Standard: Supply of Articles

Two offences under section 9A of the Act are created (Archbold 2011, 27-90): 

  • to supply or offer to supply articles (other than a hypodermic syringe, or any part of one) for the purpose of administering a controlled drug, where the administration of the drug will be unlawful; and 
  • to supply or offer to supply articles to be used in the preparation of a controlled drug for unlawful administration.

Any administration of a controlled drug is treated as unlawful except: 

  • the administration by any person of a controlled drug to another in circumstances where the administration of the drug is not unlawful under section 4(1) of the Act, or 
  • the administration by any person of a controlled drug to himself in circumstances where having the controlled drug in his possession is not unlawful under section 5(1) of the Act.

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Charging Standard: Obstructing a Constable

The intentional obstruction of a police constable or the concealment of items contrary to section 23(4) of the Act (Archbold 2011, 27-103) are important offences. There is a strong public interest in prosecuting those who destroy or conceal evidence and thereby prevent the prosecution of others for serious drug offences.

The obstruction must be of an officer exercising his powers to search and obtain evidence. In the absence of such evidence, a charge of obstruction under the Police Act 1996 may be suitable, refer to Public Justice Offences elsewhere in the Legal Guidance.

Charging Standard: Importation

Section 3 of the Act (Archbold 2011, 27-26) prohibits importation and exportation of drugs. The offence of evading the prohibition is contrary to the Customs and Excise Management Act 1979. Most offences will be prosecuted by the Solicitor for the Customs and Excise and in offences which the CPS prosecute, the consent of the Commissioners is required, refer to Relations with Other Prosecution Agencies, elsewhere in the Legal Guidance.

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Evidential Considerations

Proof of Possession

Proof of possession will often be difficult, especially where the drug has not actually been found on the defendant but in a room or car, with which he/she has some association. Generally, proof of possession depends upon: 

  • actual physical possession; 
  • knowledge.

Section 37(3) of the Act provides that possession includes things subject to the defendant's control, which are in the custody of another. Possession includes the concepts of custody and control as well as physical possession.

The case of R v Warner (1969) 2 AC 256 illustrates the following points: 

  • a person should have possession of the substance rather than mere control; 
  • a person cannot be in possession of something of which he is completely unaware; 
  • mistake as to quality is no defence.

A more detailed discussion on the concept of possession can be found in Archbold 2011, 27-59 to 61.

Proof of intent to supply

An intent to supply may be proved by direct evidence in the form of admissions or witness testimony, for example, surveillance evidence.

Another method of proving an intent to supply is by inference. Evidence from which an intent to supply may be inferred will include at least one or, more usually, a combination of the following factors: 

  • Possession of a quantity inconsistent with personal use. 
  • Possession of uncut drugs or drugs in an unusually pure state suggesting proximity to their manufacturer or importer. 
  • Possession of a variety of drugs may indicate sale rather than consumption.
  • Evidence that the drug has been prepared for sale. If a drug has been cut into small portions and those portions are wrapped in foil or film, then there is a clear inference that sale is the object.
  • Drug related equipment in the care and/or control of the suspect, such as weighing scales, cutting agents, bags or wraps of foil (provided their presence is not consistent with normal domestic use).
  • Diaries or other documents containing information tending to confirm drug dealing, which are supportive of a future intent to supply, for example, records of customers' telephone numbers together with quantities or descriptions of drugs.
  • Money found on the defendant was considered in R v Batt (1994) Crim. L. R 592. It is not necessarily evidence of future supply. It may be evidence of supply in the past but on its own the money is not evidence of a future intent to supply.
  • Evidence of large amounts of money in the possession of the defendant, or an extravagant life style which is only prima facie explicable if derived from drug dealing, is admissible in cases of possession with intent to supply if it is of probative significance to an issue in the case R v Morris (1995) 2 Cr. App. R. 69.
  • Extravagant lifestyle, but only when that is of probative significance to an issue in the case. Evidence of this type is only likely to be admitted by the courts rarely but for a detailed overview refer to (Archbold 2011, 27-71 to 27-76).

The Drug User as a Witness

The principles relating to accomplice evidence are usually relevant in these situations. The fact that a person is capable and willing to give evidence against an alleged supplier of drugs is a factor in deciding to prosecute. The following will be relevant:

  • the quality of the evidence will need to be considered as well as the quality of the witness
  • the value of the evidence to the police in an operation against a drug dealer may incline against prosecuting the witness
  • the gravity of the offence committed by the witness; generally, the more serious the offence, the more likely the witness him or herself will be prosecuted
  • where it is proposed to call an accomplice for the prosecution it is the practice to

a) omit him from the indictment, or
b) take his plea of guilty on arraignment

For more guidance relating to accomplices refer to (Archbold 2011, 4-193 to 194).

It should be further noted that ordinarily a participator in the crime of which the defendant is accused should not be called as a prosecution witness without a clear indication from that accomplice that he is willing to give evidence in favour of the Crown. (R v Sinclair, The Times 18 April 1989, CA. and see Archbold 2011, 4-194).

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Forensic Evidence

Difficulties are often experienced as a result of the lack of such evidence at an early stage in the case. Cases which are being committed or transferred to the Crown Court or where there is a summary trial must have a statement of a suitably qualified person giving evidence of the nature of the drugs in the case.

In heroin and cocaine cases, the statement should give the weight and purity of the drugs examined. This is to assist the sentencing court following the guidelines in R v Arunguren, see above in this guidance.

In a charge of possession, the burden of proving that the drug falls outside the exception contained in the Regulations issued under the Act is upon the prosecution and not the defence. The forensic analyst should deal with the situation clearly if it appears that there is any possibility of the drug falling into an excepted category.

For further guidance, refer to Scientific Evidence, elsewhere in this guidance.

Evidential considerations: Drug identification and Drug Testing Kits

Prosecutors are strongly advised to read Home Office Circular 015/2012 which replaces HO Circular 40/1998.

There must be proper and admissible evidence of the nature and quantity of the drugs.

All substances suspected to be controlled drugs must be sent to a forensic science laboratory unless they are seizures of cannabis which includes cannabis resin but not cannabis (hash) oil.

CANNABIS

Home Office Circular 15/12 provides that forensic analysis of substances believed to be cannabis is not required in cases likely to be dealt with in the magistrates' court, if a law enforcement officer, experienced int eh recognition of the physical appearance, texture and smell of cannabis, identifies it as such and the identification of the drugs is not in dispute, Having regard to CPR 3, where an offender has not confirmed the identification of the drugs in interview, admission of this fact by the defence should be sought at an early stage in the proceedings.

Circular 15/12 also confirms that identification by an experienced law enforcement officer is also permissable in a Crown Court case where the defendant has been committed for sentence, or is any case where the identification of the substance is not in dispute and there is further corrorative evidence to support that identification.

KHAT

Visual identification by a police or law enforcement officer is only applicable to khat warnings and Penalty Notice Disorders (PND) cases to corroborate an acceptance by the suspect that he is in possession of khat. Visual identifcation is also appropriate in cases which are likely to result in a charge, but only where the offender has admitted that the substance is khat in a PACE interview and the matter is likely to result in a guilty plea at court.  Khat is not as common as cannabis and tends to be concentrated in certain areas and communities. Prosecutors should take care to ensure the identification is made by a law enforcement officer who regularly encounters khat and therefore can easily identify it by its appearance. Where no such visual identification can be made or where the suspect denies the suspected offences(s), the case is going to proceed to court, and it is anticpated that the defendant will plead not guilty, a forensic service provider must be asked to identify rhe drugs as khat.

Reverse burdens of proof

Under sections 5(4) (Archbold 2011, 27-50) and 28 of the Act (Archbold 2011, 27-123), there are a number of statutory defences to drug offences in which the burden of proof is upon the accused to establish. The House of Lords, in an obiter dicta statement, considered whether such reverse burdens were compatible with Article 6 of the ECHR (R v Lambert (2001) 3 W.L.R. 206). Their Lordships found that the reverse burden created in section 28 was not proportionate to the public interest aims that were being pursued, and that by applying section 3(1) of the HRA (Archbold 2011, 16-15), they 'read down' the legislation to read 'to give sufficient evidence' rather than 'prove'. This judgment has left open the question of ECHR compatibility and all reverse burden offences, and prosecutors should be aware of the potential challenges they could face in trials.

Continuity

Establishing a proper chain of continuity of evidence is essential. You must look for evidence connecting the drug or other exhibit found to its eventual destination; for example, in the case of a drug found by the police the chain might be:

  • officer finding drug;
  • officer to whom drug is passed who places it in the drugs' cabinet;
  • officer who removes drug from cabinet and takes to laboratory;
  • scientist who examines drug and makes statement.

There must be a clearly established link between each stage in order to avoid the danger of continuity being lost.

Confiscation

Refer to Confiscation and Ancillary Orders Post-POCA, and Casework Referral, elsewhere in the Legal Guidance.

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