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Drug Offences

Principle

The legal restrictions placed on the use of controlled drugs are aimed at preventing drug misuse. 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 guidance are created by the Act. There is separate guidance available on Inchoate Offences elsewhere in the Legal Guidance. 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 their relative degree of overall harm from misuse.

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Controlled Drugs

Drugs are "controlled drugs" if they are specified as being of Class A, B or C, as set out in Parts I, II or III of Schedule 2 to the Act.

Each drug that is individually controlled is specified by reference to its proprietary and/or chemical name (as opposed to a brand name), which can be further described within the Act (like cannabis). Controlled drugs can also be specified as being a drug or the derivative of a drug pertaining to a chemical base and its variations used to bring more than one drug under the legislation.

Temporary Class Drug Orders

From 15 November 2011, the Home Secretary (HS) has been able to make a substance or product a temporary class drug by means of a Temporary Class Drug Order (TCDO). Convictions relating to temporary class drugs will attract levels of punishment similar to those for Class B drugs under the Act, with the exception of simple possession (not an offence under TCDO provisions).

The provisions relating to TCDO can be found in section 2A of the Act (following amendments inserted by section 151 and Schedule 17 of the Police Reform and Social Responsibility Act 2011 (PRSRA).

A TCDO enables the HS to control, for a period of twelve months (with provision for the order to be renewed thereafter), any substance(s) which is not already controlled and which is being or is likely to be misused, and that misuse is having or is capable of having harmful effects.

A TCDO will lapse when it expires, or sooner if it is revoked or when the temporary class drug becomes a Class A, B or C controlled drug under the Act.

The powers of arrest, search and seizure for temporary class drug offences are similar for those drugs that are scheduled under Parts I, II or III of Schedule 2 to the Act.

Proving that a drug is controlled - Forensic Evidence

It is for the prosecution to prove that a drug is controlled at the time that the offence was committed.

Difficulties are often experienced as a result of the lack of such evidence at an early stage in the case. Subject to specific provisions below, cases which are being committed or transferred to the Crown Court or being tried in the magistrates' court 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 of the drugs examined. This is to assist the court in passing sentence, in accordance with the Sentencing Council's Drug Offences Definitive Guideline.

In a charge of possession, where it is averred that a particular drug is not controlled by virtue of an exception contained in Regulations made under section 7(1)(a) of the Act, the burden of proving that the drug falls outside the exception 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.

Where the evidence that a substance is a controlled drug is served in the form of a streamlined forensic report (SFR) or analyst's summary, prosecutors should seek to agree the content of that report or summary by way of formal admission at an early stage in the proceedings.

For further guidance, refer to Streamlined Forensic Reporting, elsewhere in the Legal Guidance.

Drug Identification and Drug Testing Kits

Prosecutors are strongly advised to read Home Office Circular 015/2012 which replaces Home Office Circular 40/1998. Annexes A and B of Circular 015/2012, relating to approved Drug Testing Kits (DTK) and training for officers, has been replaced by Home Office Circular 013/2014.

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 015/2012 provides that forensic analysis of substances believed to be cannabis is not required in cases likely to be dealt with in a magistrates' court, if a law enforcement officer, experienced in the 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 Rule 3 of the Criminal Procedure Rules, 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.

Home Office Circular 015/2012 also confirms that identification by an experienced law enforcement officer is also permissible in a Crown Court case where the defendant has been committed for sentence, or in any case where the identification of the substance is not in dispute and there is further corroborative evidence to support that identification.

Khat

Visual identification by a police or law enforcement officer is only applicable to khat warnings and Penalty Notice for Disorder (PND) cases to corroborate an acceptance by the suspect that s/he is in possession of khat. Visual identification 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 that 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 offence(s), the case is going to proceed to court, and it is anticipated that the defendant will plead not guilty, a forensic service provider must be asked to identify the drug as khat. Guidance has been issued to forensic science providers by the Home Office to assist them with the identification of khat.

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Offences

The Act covers the range of offences set out below.

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.

Importation offences:

  • Importation (and exportation) of a controlled drug - s.170 Customs and Excise Management Act 1979,

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:

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

Inchoate offences:

  • Incitement of any of the above offences - s.19 of the Act;
  • Participating in an offence (that corresponds with an offence under the Act) outside of the UK - s.20 of the Act;
  • Attempting to commit a drugs offence - Criminal Attempts Act 1981;
  • Conspiracy to commit a drugs offence - Criminal Law Act 1977;
  • Encouraging or assisting in the commission of an offence - Part 2 Serious Crimes Act 2007.

Obstruction offences:

  • Obstructing (or concealing or failing to produce evidence to) a constable or other authorised person - s.23 of the Act.

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Possession of Controlled Drug

Evidential and Charging Considerations

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 Parts 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.

Section 37(3) of the Act provides that possession includes things subject to the defendant's control, which are 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 charged 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). 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).

Defences in Section 28 of the Act

In relation to offences of possession (with or without intent to supply), production, supply, cultivation of drugs or the opium-related offences, it is a defence for the accused to show that:

  • He neither knew, suspected, nor had reason to suspect the existence of some fact that the prosecution is required to prove, for example that he was in possession of the drug.
  • He neither believed, suspected, nor had reason to suspect that the substance in question was a controlled drug.
  • That he believed the product to be a controlled drug, which had it been that drug, would mean that he would not have been an offence at the time that he committed it.

In R v Lambert [2002] 2 AC 545, the House of Lords held that the defendant only bears an evidential burden in relation to calling evidence that he lacked the requisite knowledge, belief or suspicion - it is for the prosecution to prove by reference to the available evidence that he lacked knowledge, belief or suspicion.

It is the second of the three defences cited above that will be most frequently encountered. In deciding whether the defence is made out, prosecutors may wish to have regards to:

  • The credibility of any account given in interview - note the evidential burden on the defendant.
  • The circumstances in which the drug was acquired or possessed, including concealment.
  • Nature of any packaging.
  • Any observations on the defendant prior to him being stopped or arrested.
  • If a possession offence is alleged, proximity to the supplier.
  • Content of any exhibit - telephone messages, documents, labelling.
  • Relevant bad character - including previous non court disposals and informal warnings, if recorded and in an admissible format.

Public Interest Considerations

In addition to the general public interest factors in the Code for Crown Prosecutors, please refer to the contents of the Ministry of Justices Simple Cautions for Adult Offenders guidance, and to refer to Cautioning and Diversion, elsewhere in the Legal Guidance.

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.

Cannabis

In deciding whether it is in the public interest to prosecute an adult offender for an offence of the simple possession of a small amount of cannabis for personal use, prosecutors should have regard to the ACPO Guidance on Cannabis Possession for Personal Use.

In summary:

  • First offence - "Cannabis Warning"
    Unless there are aggravating features (offence committed in public view or local policing problem area, the need to protect young people), there is no admission, or the suspect is a repeated and persistent offender (for any type of offence), in which case PND or charge 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 cannabis in these circumstances, see above.
  • Third or subsequent offence - Arrest/Charge

Khat

In deciding whether it is in the public interest to prosecute an offence of the simple possession of khat, a Class C drug, prosecutors need to have regard to whether National Policing Guidelines on Khat Possession for Personal Use Intervention Framework 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 is related offending or anti-social behaviour), or the suspect is a repeated and persistent offender (for any type of offence), in which case PND or charge 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 above.
  • Third or subsequent offence - Arrest/Charge

New Psychoactive Substances (so called "Legal Highs")

New psychoactive substances (NPS), also known as "legal highs", are an emerging threat, both in the UK and worldwide. New psychoactive substances are drugs which mimic the effects of illegal drugs. Their effects on humans are often unknown, with a number of cases of hospitalisation and death after ingestion. New psychoactive substances are generally sold online, or on the high street in 'head shops', and there are some reports of them being sold in non-specialist outlets such as newsagents or petrol stations.

A "head shop" is considered by the Home Office to be a "... commercial retail outlet specialising in the sale or supply of NPS together with equipment, paraphernalia or literature related to the growing, production or consumption of cannabis and other drugs. These outlets may also have online businesses, but those businesses solely based online would not fit within this definition."

NPS are not universally controlled under the Misuse of Drugs Act 1971. Although a large number have been controlled since 2009, the types of NPS that are available is varied and constantly evolving with those supplied openly in the retail outlets mentioned above not generally being the subject of control. This complexity means that forensic analysis will invariably be required.

Prosecutors faced with a case involving NPS should consider the following:

  1. Is the NPS a controlled substance for the purposes of the 1971 Act?
    The first consideration is whether the substance is controlled. If it is, then all of the offences under the 1971 Act are available as long as there is sufficient evidence to provide a realistic prospect of conviction. The evidence of a drugs analyst classifying the drug is vital.
    An offence that may be of particular relevance to retail outlets such as "head shops" will be Section 9A of the Misuse of Drugs Act 1971 which makes it an offence to supply any article which may be used to prepare a controlled drug for administration, if a person believes that the article will be used in circumstances where the administration is unlawful. An article could consist of equipment for using drugs such as bongs, pipes, grinders and other items. The circumstances in which it came into the seller's possession and the content of any packaging (for example a picture of a cannabis leaf) could be relevant evidence.
    A retailer may try to avail themselves of the Defence in section 28 of the 1971 Act ( see above). If so, prosecutors should have regard to the factors set out above and also to any engagement that may have taken place previously with the police and other investigators, including whether the retailer had previously been warned that any substance that they are selling contravenes the law. If a retailer seeks to argue that they have received a certificate or other assurance that a substance did not contain controlled drugs, prosecutors should be prepared to test this by reference to all of the available evidence.
    If the drug is not controlled, prosecutors should consider the following options:
  2. Intoxicating Substances (Supply) Act 1985
    This Act prohibits the sale to those under the age of 18 of substances which the seller has reason to believe may be inhaled for the purposes of intoxication. It was designed to prevent children buying glue and similar intoxicating substances. The scope of the Act is limited to sales to under 18's and to substances which are inhaled.
    It can be difficult to prove that the retailer has reasonable cause to suspect that the product was being bought for the purpose of intoxication, although if the substance is being sold in a head shop this may be less of a problem. Evidence of witnesses who purchased the items (possibly as part of a test purchase operation) may be needed as to what was said to them and it is vital that documents (including advertising material) pertaining to the intoxicating substance(s) are seized as exhibits to help in establishing what information was available to the retailer.
    The Intoxicating Substances (Supply) Act 1985 can be found here.
  3. Action by other agencies
    Prosecutors should invite the police to consider liaising with the local authority with a view to taking action which as with the 1985 Act (above) will be limited to suppliers only.
    • Investigating and prosecuting under Trading Standards legislation
    • Injunctions under the Local Government Acts - taken out by local councils for the protection of the public.
    • Community Protection Notices (CPN) under Part 4, Chapter 1 Anti-Social Behaviour Crime and Policing Act 2014 - CPN can be issued by the police or a local authority to individuals, organisations or businesses (such as head shops) if the issuing agency is satisfied on reasonable grounds that their conduct is having a detrimental effect on the quality of life of those in the locality, is persistent or continuing nature and is unreasonable. Before a CPN can be served, a written warning must be issued informing the perpetrator of the problem behaviour, requesting them to stop, and the consequences of continuing with it. Failure to comply is a criminal offence punishable by a fine.
      Guidance on the powers available to the local authority in order to tackle NPS has been published by the Local Government Association (A councillors' guide to tackling new psychoactive substances) and the Home Office (Guidance for local authorities on taking action against "head shops" selling new psychoactive substances (NPS) ).

Nitrous oxide (balloons, "laughing gas")

Whilst nitrous oxide has a number of legitimate uses in the areas of medicine and catering, it is increasingly being inhaled as a recreational drug-using a balloon or a metal canister known as a "cracker". Inhaling nitrous oxide can be dangerous leading in some cases to loss of blood pressure or heart attack.

Since nitrous oxide is not a controlled drug, it is not an offence to possess it. It may be an offence to supply it under trading standards legislation and preventative action may be taken under anti-social behaviour legislation (community protection notices, public spaces protection orders).

Where nitrous oxide is sold to persons aged under-18 in circumstances where the seller has reason to believe that it may be inhaled for the purposes of intoxication, prosecutors should consider whether an offence under the Intoxicating Substance (Supply) Act 1985 should be prosecuted.

Guidance on restricting the supply of nitrous oxide for recreational use has been published by the Home Office.

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Supply/Possession with intent to supply/Offering to supply

Evidential and Charging considerations

Supply

Supplying includes distributing (section 37(1) of the Act) and does not require proof of payment or reward.
The definition of supply was expanded upon in R v Maginnis (1987) 1 All ER 907 HL. Supply requires more than mere transfer of physical control. The drug is supplied if the recipient is 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 original supplier would be a supply.

In R v Panton, TLR 27 March 2001, the Court of Appeal held that the phrase "supply" includes the retention and return of controlled drugs deposited with a custodian "by another person, even if the custodian did not lack of consent to the arrangement."

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 other's 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] Crim. LR 566 CA).

Harm caused by supply

If A injects B with a drug belonging to B, A is not supplying a drug in contravention of s.4(1) (R v Harris [1968] 1 WLR 769).

However, the following offences under the Offences against The Person Act 1861 may be considered:

  • Section 23: Unlawfully and maliciously administering, or causing to be administered to or taken any poison or other destructive or noxious thing so as to endanger life, thereby inflicting grievous bodily harm. The maximum sentence is 10 years' imprisonment and the offence is indictable only.
  • Section 24: Unlawfully and maliciously administering or causing to be administered to or taken any poison or other destructive or noxious thing with intent to injure, aggrieve or annoy the person taking the substance. The maximum sentence is 5 years imprisonment and the offence is indictable only.

Whether a substance is a noxious thing is a question of fact and degree for the jury. A substance that may be harmless in small quantities but 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).

An intention to injure may depend on the purpose for which the noxious substance was administered. Examples of an intention to injure include: giving a baby methadone to keep it quiet where the child is born addicted because of the mother's addiction and facilitating the commission of sexual offences.

Possession with intent to supply

Where the evidence supports a charge of supplying or possessing controlled drugs of any class with intent to supply, this is to be preferred to a simple possession charge.

As with a simple possession charge, 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 is more appropriate.

Evidence of intent to supply

An intention 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 intention to supply is by inference. Evidence from which 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. LR 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 27-71 to 27-76.

Offering/being concerned

In addition to the supply of a controlled drug, section 4(3)(a)-(c) 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 possession. The offer may be by words or conduct (R v Showers [1995] Crim. LR 400).

In deciding whether there has been an offer to supply, prosecutors should not take into consideration principles of contract law (R v Dhillon [2000] Crim. LR 760). The fact that the drug supplied is different to that offered or not in fact controlled affords no defence - see R v Goodard [1992] Crim. LR 588, R v Mitchell [1992] Crim. LR 723 and R v Prior (2004) EWCA Crim1147.

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.

The defence under section 28 of the Act will not be applicable to the charge of offering to supply as the offence is the making of the offer. However, prosecutors should be prepared to address this defence in relation to the other offences to which this section relates - see above.

Public Interest Considerations

The supply and possession with intent to supply of Class A drugs, 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 of a small amount of these drugs need not be charged. 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.

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Importation Offences

Section 170(1) of the Customs and Excise Management Act 1979 (CEMA) states:

"If any person ...

  1. knowingly acquires possession of:

    iii) goods with respect to the importation or exportation of which any prohibition or restriction is for the time being in force under or by virtue of any enactment; or
  2. is in any way knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any such goods,

and does so with intent to (removed as irrelevant) evade any such prohibition or restriction with respect to the goods he shall be guilty of an offence under this section and may be detained."

Section 170(2) of CEMA 1979 provides the "smuggling" offence:

"If any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion

b.    of any prohibition or restriction for the time being in force with respect to the goods

he shall be guilty of an offence under this section and may be detained."

The prohibition upon the importation and exportation of controlled drugs is contained in section 3 of the 1971 Misuse of Drugs Act. Section 3 does not create an offence; the offence is the evading of the prohibition referred to in section 170 CEMA and both pieces of legislation should be referred to in the indictment - see R v Whitehead (1982) 75 Cr. App. R. 389.

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Production Offences

Evidential and Charging considerations

An offence of production is committed when a suspect has some identifiable participation in the process of producing a controlled drug, by manufacture, cultivation, or any other method.

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, a charge under s.4(1)(a) of the Act of producing cannabis will usually be more appropriate for the reasons set out under (Public Interest Considerations ), see below.

The conversion of one form of controlled drug into another may also amount to production - see R v Russell (P.A.) (1992) 94 Cr. App. R. 351, CA.

Charging Production or 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 Hughes LJ commented that:

"The proper inference as to what cultivation entailed and what would be likely to happen to the product depends on the facts 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."

Further:

"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 sentence."

It will often t not be necessary 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 a significant amount 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

Charging Cultivation of Cannabis Plants or Production

The definition of production in section 37(1) of the Act includes cultivation. 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" in POCA, which allows the court the scope to make a 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. It may also be a factor determining the level of the charge.

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'.

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 POCA. This will not generally be clear at the time of charge as a financial investigation may not yet have been completed.

Young Defendants charged with Offences who might be Trafficked Victims

See Legal Guidance on Human Trafficking, Smuggling and Slavery, in particular Child Trafficking.

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Offences for 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 and could include the landlord of a public house when cannabis smoking occurs or 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 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.

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).

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Opium Related Offences

Preparing of opium for smoking, or smoking of 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, 27-89 and the possible application of s.28 as to proof of lack of knowledge, Archbold, 27-123.

For the offences of preparing of opium for smoking and/or prepared opium, refer to Offences for Occupiers or managers of premises above.

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Supply of Articles

Two summary only offences are created in section 9A of the Act. It is an offence:

  • 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 will not be treated is treated as unlawful where:

  • the administration by any person of a controlled drug to another is 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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Obstructing a Constable

The intentional obstruction of a police constable or (other authorised person) or the concealment of items is an offence contrary to section 23(4) of the Act.

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 more appropriate - please refer to Public Justice Offences, elsewhere in the Legal Guidance.

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Specific Issues

Charging

Charging Standard

The purpose of the drug offences charging standard is to ensure that the most appropriate charge is selected for offences covered by the Act. The Charging Standard:

  • 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.

General Charging Practice

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

  1. 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;
  2. The choice of charges should ensure the clear and simple presentation of the case particularly when there is more than one accused;
  3. 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;
  4. 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.

Selecting and Drafting Charges

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.

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.

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.

Conspiracy

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, there are three defendants, two of whom 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.

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:

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

However, Rule 3 of the Criminal Procedure Rules requires all parties to identify the real issues in a case at an early stage and prosecutors are encouraged to attempt to agree the continuity in a case by formal admission as early as possible in proceedings.

Needle Exchange Schemes and blood borne viruses

It is well known that blood borne 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. The Misuse of Drugs Regulations 2001 (as amended) allows that health care professionals and persons employed or lawfully engaged in the provision of drug treatment services are authorised to supply certain drug paraphernalia without committing an offence under s9A of the Act. In the case of specified health care professionals, this includes needles and in the case of drug treatment providers, this includes aluminium foil.

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

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 whether to prosecute. The following will be relevant:

  • The safety and welfare of the witness who will be entitled to the same level of service from the police and the CPS, in accordance withThe Witness Charter. Special Measures may be needed.
  • 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:
  1. omit him from the indictment, or
  2. take his plea of guilty on arraignment

For more guidance relating to accomplices refer to the Legal Guidance on Accomplices.

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.).

Sentencing Considerations

Awareness of the sentencing framework will often be of help when assessing the appropriate charge.

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.

Sentencing Council Definitive Guideline

The Sentencing Council has published the Drug Offences Definitive Guideline. It came into effect on 27 February 2012 and replaced 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 those passing sentence, 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 have 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.

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 paragraph 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'."

Paragraph 36 continues:

"By contrast, the courier who is worldly wise, who knows what he or she is doing, and does it as a matter of free choice 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'."

Ancillary Orders

Confiscation Order - POCA 2002

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, paragraph 1 which specifies the provisions in the 1971 Act where a conviction will bring the defendant within s.75. Refer to Proceeds of Crime, elsewhere in the Legal Guidance.

Serious Crime Prevention Orders (SCPO) - Section 1 of the Serious Crime Act 2007

On conviction in the Crown Court of a serious crime or on application by the DPP to the High Court, if court can be satisfied that a person has been involved in serious crime as long as there are reasonable grounds for believing that the order would protect the public by preventing, restricting or disrupting that person's involvement in serious crime in England and Wales.

Drug trafficking is specifically listed in Schedule 1, Part 1 of the 2007 Act as a serious crime for the purposes of the legislation.

See the Serious Crime Prevention Orders guidance, elsewhere in the Legal Guidance.

Travel Restriction Orders (TRO)

In the case of an offence contrary to section 4(2) or 4(3) of the 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 TRO than POCA.)

Where an offender has been convicted of a "drug trafficking offence" as defined in s.34 of the Criminal Justice and Police Act 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.

Forfeiture

Anything shown to the satisfaction of the court to be related to that offence may be forfeited and destroyed, unless a person claiming to be the owner applies to the court to be heard on the matter - s.27 of the Act.

This applies to all tangible items and can include money - R v Beard (G.) [1975] Crim. LR 92.

Maximum Penalties

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
Importation or Exportation of Drugs Supplying Controlled Drugs

Importing or exporting a controlled drug is an either way offence. The maximum penalties are set out in Schedule 1 of CEMA 1979.

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 summary 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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Confiscation

Refer to chapter two of the Proceeds of Crime guidance, and Referral of Cases guidance, elsewhere in the Legal Guidance.

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