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Drugs and the Criminal Law Legal advice and useful information |
 Drugs & criminal law Misuse of Drugs Act Possession Supply Production Import/Export Paraphernalia Forfeiture Trafficking Drugs Act 2005 Crim. Evidence Act Police search powers Rights in custody Rules on detentionRELATED LINKS Your rights on arrest Drugs and clubs Drug links Crim Justice Act bust card Police complaints Photographers Rights Legal homepage |
The number of people dealt with for drug offences in 1998 was 153,200 and of these, 127,840 were found guilty, cautioned, given a fiscal fine or dealt with by compounding for drug offences in 1998. Offences mainly involved cannabis (76%), followed by amphetamine (12%), heroin (9%) and cocaine (4%), with little change in the type of drug from 1997. More info: UK Drug Report 2000 - The Drug Situation in the UK ) Drugs law in the UK is inconsistent, with some quite harmful substances freely available, and others prohibited. The focus of this publication is on illegally produced drugs, rather than prescribed medicines. History of drugs law The main piece of legislation dealing with drugs is the Misuse of Drugs Act 1971, which consolidated most previous drugs legislation. In 1908 the sale of opium was restricted to people known to a pharmacist. Cocaine, heroin and morphine were first subject to legal control in 1917, cannabis in 1925, amphetamines in 1964, and LSD in 1966. Since 1971 major subsequent drugs legislation has included the Intoxicating Substances Act 1985 controlling the sale of solvents to people under 18, and the Drugs Trafficking Offences Act 1986, allowing for the confiscation of profits from drug dealing, and creating new offences concerned with the laundering of drug money. 
Drugs law in context Drugs law operates within the wider context of criminal law. Rules governing detention and questioning in police stations, court procedure and other basic legal principles all apply to drugs cases. The most important legislation governing arrest, detention, questioning and prosecution of offences is the Police and Criminal Evidence Act 1984 (PACE). A general rule concerning all criminal cases is that a person has to have a "guilty mind" if they are to be convicted. If someone is carrying controlled drugs without knowing it, they should, if believed, be found not guilty of possession. Knowing that criminal offences are being committed by another person will not normally amount to being guilty unless assistance is given to the law breaker in some way.
The Misuse of Drugs Act 1971 Classification of drugs The Misuse of Drugs Act (MDA) is the major Act controlling drugs. It divides drugs into categories (A, B and C) depending on how dangerous the drugs were thought to be at the time of legislation. The home secretary can usually add new drugs on to those controlled under the original 1971 Act without referring to Parliament. Class A drugs include: Cocaine, coca leaf, dicanol, heroin, LSD, mescalin, methadone, morphine, opium, PCP, pethadine, poppy straw, psilocybin, STP, ecstasy and cannabinol except where it is contained in cannabis or cannabis resin. Class B drugs become class A drugs if they are prepared for injection. Class B drugs include: Amphetamine, codeine in concentrations above 2.5%, DF118, ritalin and barbiturates. Class C drugs include: Methaqualone, cannabis, benzodiazepines (valium etc). See: Cannabis reclassifed (Jan 2004)
Drug classification and sentence Under the MDA, offences involving different classes of drugs attract different penalties. Class A drugs offences involving heroin, for example, are taken more seriously than offences involving class B or C drugs. The table set out below show maximum penalties for different types of offences. Note: Maximum sentences are seldom imposed and average sentences for offences are much lower, depending on the individual circumstances of the case. Some class C drugs are legal to possess. The Misuse of Drugs schedules determine whether a drugs may be prescribed or not, and impose duties relating to record keeping, manufacturing, storage, and distribution of drugs. Temazepam, for example, is a Class C drug, listed under schedule 4. It may be possessed, provided it is in a medicinal form.
Chart 2 - Schedules There are 5 Schedules. Schedule 1 Schedule 1 drugs are considered to have no legitimate therapeutic use, and cannot be prescribed by doctors, or dispensed by chemists. Possession is only legitimate with a Home Office licence. These are issued only to doctors and scientists engaged in research. Schedule 1 drugs include cannabis and LSD. Schedules 2 & 3 These schedules cover many controlled drugs considered to have medical therapeutic uses. Drugs in the Schedules may be possessed by doctors, pharmacists, scientific research institutes, sisters and acting sisters employed in hospitals and nursing homes, and various scientific analysts. A patient who has been prescribed scheduled drugs by a doctor my legitimately be in possession, provided that the drugs are administered in accordance with doctor's directions. Someone who "abused" prescribed drugs could be in unlawful possession, provided that the intention to abuse could be proved. Schedule 2 includes heroin, morphine, pethadine, amphetamine and cocaine. Schedule 3 includes diethylpropion and other mild slimming aids. 
Schedule 4 This Schedule includes many benzodiazepines such as Diazepam, Lorazepan and Temazepam. Any person listed under Schedules 2 and 3 may possess these drugs. In addition, any person may possess any Schedule 4 drug, provided it is a medicinal product. However, supply by an unauthorized person is illegal. Schedule 5 This schedule covers compound preparations like cough mixtures and anti- diarrhoea medicines that contain tiny amounts of controlled drugs like morphine or cocaine. Some schedule 5 drugs are sold over the counter, and they may be possessed legally without a prescription. Regulations may stipulate the proportion of, for example, morphine, that may be contained in a preparation, which mush not easily be recoverable.
Possession of Illegal Drugs Possession means having drugs in your physical possession or having control of drugs. If you leave drugs in a suitcase in a left luggage office, you do not possess drugs physically, but legally, you still have control of the drugs. Legal possession of drugs involves knowledge. A left luggage attendant holding a suitcase belonging to someone else may not know that the suitcase contains drugs, and will therefore not legally be in possession. Intention is very important. Not everyone in possession of drugs will be guilty of an offence. Conveying a drug to someone who is entitled to have the drugs in their possession is not an offence. Nor is taking possession in order to destroy them. A teacher, for example, confiscating cannabis could flush it down the loo. If, however, the teacher held onto the drugs, and did not destroy them, and offence of possession would be committed.
Common types of possession Simple possession In order to prove possession, the presecution have to identify the drug precisely - cannabis resin or amphetamine sulphate, for example. Normally, this is done by sending drugs away for scientific analysis. If you identify a drug to the police - for example, "this is lorazepam" - they may be able to use your identification as evidence, on the basis that you have behaved as it is Lorazepam. If you have already tried the drugs, it could be said that you have formed an opinion about the nature of the drug, even though you are not a scientific expert (Bird v Adams 1972, Wells 1976). Each case must be judged on the facts. If you are in possession of, for example, a quantity of white powder which you think is cocaine, you may be charged with possession of cocaine, even if, on analysis, it turns out to be amphetamine sulphate. The prosecution must prove that you had physical custody of the drugs, or controlled them in some way, and that you knew or suspected that drugs were present, and that they were illegal. Seeing someone else use a drug, or being close to drugs does nor amount to possession (Searle 1971, Bland 1988).
Joint possession If you own a pool of drugs with other people - cannabis for example, then handing a joint round the group does not amount to supply. Each person draws from a common pool, and therefore each person has control (Searle 1971). Someone offering a cannabis smoke to another person not already in possession of the drug could be said to be supplying even if the joint is not handed over permanently. However, it would be difficult for anyone to act independently in controlling the drug (Moore 1979).
Traces At one time you could argue in court that minute quantities of drugs were not "usable". The courts have decided that "usability" is not relevant to drugs possession cases (Boyesen 1980). There are some problems in prosecutions involving traces. Accurate analysis and identification of minute quantities of drugs may be difficult. Knowledge may also be a problem. Someone in possession of, for example, cannabis in a jacket pocket may not know that the drug is present. Used syringes and needles may contain traces of illegal drugs. People using needle exchanges should check with local drugs agencies about the attitude of local police, who may agree not to prosecute in certain circumstances. The public interest may be taken into account by the police, who are able to exercise considerable discretion in enforcing the law (R v Metropolitan Police Commissioner 1968). Traces of drugs found in urine or blood cannot be used as evidence to support a charge of possession of drugs. (Hambleton v Callinan 1968.) But many people found in possession of traces may be tempted to admit past possession of drugs to the police.
Past possession Traces of drugs can be used as evidence of past possession. Such prosecutions can be regarded as oppressive (Pragiola 1977). More often, prosecutions for past possession use statements and admissions from suspects who have admitted taking illegal drugs in the past. The courts can rely on admissions of guilt by defendants in drugs cases with little corroborative evidence. An occupier who saw people injecting heroin or freebasing cocaine on their premises would be under no legal obligation to stop them, provided they did not actively assist them. But the same occupier would have to stop the consumption of cannabis. Occupiers of premises The MDA places special obligations on occupiers of premises, who may not knowingly allow drugs production or supply. The law in this area is under review, and may change to make it an offence if an occupier does not stop the use of any illicit drug.
Premises Premises can mean anything from a house to a boat or caravan which is not moving. An open field does not count as "premises". Responsibility for premises lies with occupiers, not owners. A person who is in a position to invite or exclude visitors, holds the key, or takes responsibility for premises will count as an occupier (Tao 1976). People sharing houses or flats are in a difficult position. If one person uses cannabis with the knowledge of others, then the co- tenants could be prosecuted for allowing the premises to be used for smoking cannabis. Knowledge "Knowing" that drugs are being used, supplied or produced on premises mean deliberately or recklessly disregarding the obvious.
Supply of Drugs Supply of drugs, or "trafficking" is a serious offence. It does not necessarily mean large scale dealing for profit. Simply handing certain controlled drugs to another person can count as supply, and may attract heavy penalties. Possession with intent to supply This is one of the most common "trafficking" offences. Possession with intent to supply includes all the elements of simple possession, and additional evidence about intent. The prosecution may try to establish intent to supply in various ways. In some cases, the quantity of drugs involved is obviously too large for personal use. In other cases, intent to supply can be established through statements and admissions made by suspects. Evidence of drug paraphernalia such as scales, packaging and cutting equipment may be used as part of the prosecution. Police evidence on patters of drug use may be called. This evidence may be contested by calling more sympathetic experts for the defence. Where a person has left drugs with a friend for safekeeping, anticipating that they be handed back on demand, the friend looking after the drugs is guilty of supply if the drugs are handed back, or they intend to hand them back. (Maginnis 1987)
Supply "Supply" means different things in different cases. Sometimes, the courts concentrate on the physical transfer of drugs from one person to another (Delgado 1984). At other times, the courts look at whether the person receiving the drugs has benefitted (Dempsey 1986). Some drugs supply cases involve evidence from police observation, in which drugs are not fully identified. Suspected suppliers may make admissions to the police, along with the people buying the drugs. Sometimes, purchases of drugs are are persuaded to give evidence against contacts who supplied them.
When several friends pool money to buy drugs, then the person making the actual purchase and delivering the drugs will be supplying, even if all considered themselves to be jointly involved in the purchase (Buckley and Lane 1979). Injecting someone with their own heroin is not a supplying offence, assuming that the drugs never leave the control of the person taking them, and the person injecting them is simply assisting (Harris 1969). Sometimes, people who are not supplying drugs are charged with "being concerned" in supply. This means some kind of identifiable assistance such as telephoning a contact or similar helpful act.
Supplying intoxicating substances The intoxicating Substances Act covers the supply of substances other than controlled drugs, such as solvents and lighter fuel. Supply is illegal is the substance or its fumes are to be used to intoxicate a young person under 18. A supplier must know or suspect that the young person concerned is under 18. People under 18 who supply to one another should not be prosecuted unless they are selling substances as part of a business.
Production of Controlled Drugs Production of controlled drugs can mean illegal manufacture of drugs such as amphetamine sulphate and LSD for large sale distribution. It can also mean the cultivation of cannabis. Although there is a special offence of "cultivating" cannabis, most people are now charged with production of the drug. "Production" can be seen as a trafficking offence, or as a smaller scale offence, depending on the circumstances. Knowledge is important. Someone who could establish that they did not know that the plant they were tending was cannabis would be not guilty of the offence (Champ 1979). Admissions are also important. A person simply possessing psilocybin mushrooms is not committing an offence, as psilocybin mushrooms grow naturally within the UK. If a mushroom grower admits growing mushrooms for the purposes of using psilocybin (the active ingredient of the mushrooms), they are likely to be prosecuted.
Import / Export The law on the importation and export of drugs is complex. The most important piece of legislation is the Customs and Excise Management Act 1979 (CEMA). Much of the legislation is directed at commercial traffickers, and is technical in nature. Importing and exporting controlled drugs are normally considered trafficking offences. Import The most simple offence is going through Customs carrying undeclared controlled drugs. But people quite remote from the physical act of passing through customs may be considered to be "concerned" with fraudulent evasion or attempted evasion of a prohibition or restriction. Someone sent an unsolicited package of drugs by a friend abroad could be prosecuted if they decided to hold on to the drugs, even though they had not known of the existence of the package when it passed through customs. Assistance given to an importer of drugs after entry to the UK could also lead to a charge.
Export Similar conditions apply to the export of controlled drugs. Export of drugs can also be seen as a trafficking offence. People travelling abroad can take certain drugs out of the country without making special arrangements. Controlled drugs such as tranquilizes (Schedule 4) can be exported, provided they are in medicinal form, along with medicines containing very small proportions of controlled drugs such as codeine and morphine (Schedule 5). People prescribed other controlled drugs such as methadone who need to travel with the drug should check to see if they need a licence to export. In practice, different groups of people are treated differently by the criminal justice system. A pensioner without a licence needing to travel with controlled drugs would probably not be challenged while someone of suspect appearance getting treatment for an addiction might well be challenged, it is important to check with the country being visited that it is not against their law to import the drug.
Paraphernalia Possession of drug taking apparatus is not illegal, provided that it is clean. Many objects used for drug taking may contain traces of illegal drugs, and of course, possession of drug taking apparatus could be used to support a charge of some kind, although other evidence would have to be available. Supply and distribution of drug-taking kits such as pipes and so on is illegal under the Drug Trafficking offences Act 1986 (DTOA). However, many items used by drug takers can be used for other purposes. A shop selling such goods as decorative novelty items would probably avoid prosecution. Hypodermic needles and syringes are specifically exempt from the legislation, even if suppliers believe that they are likely to be used in the administration of illegal drugs (DTOA).
Forfeiture Drugs found by the police are normally destroyed, by order of the court. In suspected drugs trafficking cases, the courts and investigating officers enjoy wide powers to seek out financial information, and to assess the profits made form suspected drug trafficking under the DTOA. The DTOA is a complex piece of legislation designed to make life difficult for large scale dealers. It imposes a duty on bank officials and other people whom they suspect of laundering and depositing drug money. Relatives and friends of suspected drugs traffickers are often caught up in the investigative proceedings. Where someone has been convicted of a drugs trafficking offence in Crown Court (supply, intent to supply, importation etc), the court must make enquiries to assess and recover proceeds of drug dealing. In practice, often occur very soon after arrest. The court can make a restraint order preventing any person dealing in realizable property except as directed by the court.
Drug Trafficking In making an assessment of drug proceeds, the courts rely on a retrospective assessment of police and customs officers, who look into financial dealings up to six years before the institution of criminal proceedings. The burden of proof is on the defence (ie, the convicted trafficker) to show that property and good during that period were acquired legitimately. Evidence can be produced by the prosecution about the standard of living, lifestyle and so on. Proceeding under the DTOA are very complicated. Husbands and wives of drug trafficking suspects may have their property frozen while matters are investigate. It is possible to apply to the court for a restraint order to be varied. Full legal advice and representation is essential.
Drugs Act 2005, Tough Choices and the Drug Interventions Programme (DIP) Test on Arrest - The Drugs Act 2005 introduced new powers compelling police in certain, high-drug crime areas to test people arrested for certain “trigger” offences for the presence of Class A drugs. Failing to complete the drug test is a criminal offence in itself and can result in a fine, up to 3 months in prison or both. Required Assessment - If an individual tests positive for recent drug use of heroin, cocaine or crack, they will be compelled to attend one or two appointments with a drug worker, whether or not they are charged with the crime they were originally arrested for. Non-attendance is a criminal offence and can result in a fine, up to 3 months in prison, or both. Restrictions on Bail - If charged with the offence for which you have tested positive (or any offence put to you during that period of detention), a court considering bail will be obliged to take your positive test into consideration. The test could be used as a reason to remand you in custody (for fear of further offending), or alternatively will mean the court must put a condition on your bail compelling you to attend the Drug Interventions Programme. Non-attendance at these appointments could result in your bail being revoked. You have the right to appeal against any drug test. The on-site police tests are about 95% accurate. Many legally prescribed or over-the-counter opiates will produce a false positive. NB, methadone and buprenorphine (subutex) are not known to produce false positives. If you do test positive, you have the right to say nothing in the Required Assessment. However, if you are charged with the offence, non-compliance with the Required Assessment could be considered during a bail hearing.  Home Office: Guidance for the Implementation of the DIP provisions of the Drugs Act 2005
Police and Criminal Evidence Act The Police and Criminal Evidence Act 1984 (PACE) sets out police powers to stop, search and arrest, conditions of detention in police stations, and codes of practice governing treatment of prisoners. Is is a most important piece of legislation dealing with police powers to stop, search, arrest and detain ordinary citizens, and affects almost every aspect of of detention procedure. The police now have to keep detailed records about people detained. Custody officers have been introduced to deal with detainees.
Continued detention must be reviewed periodically, and there is a strict limit to the maximum period of detention before charge. Police arrest people in order to hold them while they investigate offences and gain evidence for the prosecution. The length of time people can be held depends on the kind of offence police suspect they have committed. Under PACE, drugs offences are divided into:
Police Powers to Search Important new addition (added 9/4/96): New anti-terrorist provisions were rushed through Parliament on Wednesday 3rd April, which will give the police power to search people without having to give reasonable cause for suspicion, and also allows them to search shoes and socks without taking the suspect to a police station. Although designed as anti-terrorist provisions, they are likely to be used as power to conduct random drug searches. It is not yet known when this extra provision will be implemented, although it is likely to be in the near future. See: See Terrorism Acts 2000-2001 and blagged.freeserve.co.uk/
Police can stop and question people whenever they wish. They are supposed to ask questions in order to decide whether or not grounds exist for a search. A satisfactory explanation for "suspicious" behaviour, should, according to police codes of practice, make a search unnecessary. Police often try to get consent for search by describing a search as "just routine". In fact, routine searches are illegal unless they are done with consent. Searches with consent may be more thorough than those without, as there are rules governing conduct of searches without consent. Searches without consent may only be done on "reasonable suspicion". Grounds for "reasonable suspicion" may be based on furtive or other unusual behaviour, time or place of activity, and tip offs. Belonging to a particular ethnic group, unusual dress, or police knowledge of previous convictions are not reasonable grounds.
Before searching someone against their will, police must:
Special legal provisions for drugs searches allow the police to take suspects to a police station without a formal arrest (Misuse of Drugs Act s23).
Intimate searches Intimate searches of body orifices can be authorized in writing by a police superintendent who suspects that a Class A drug (such as cocaine or heroin) has been concealed with criminal intent. The search must be conducted by a doctor or nurse in a hospital or clinic (Police and Criminal Evidence Act s55). An intimate search in relation to cannabis (a Class B drug) would be illegal. Search of premises Police have extensive powers to enter and search premises. Police can search at any time with consent. But with consent, they can only enter and search:
Police can enter by force if they feel that delay in entering will lead to disposal of evidence (drugs, for example). Evidence acquired during an unlawful search is admissible in court. Inviting police onto premises may imply consent to unforeseen actions. An invitation onto premises to discuss, say, the loss of a bicycle, could become a drugs search if police become suspicious. When police search premises, they often search individuals, even visitors, on the premises. Usually they have the legal power to do so. They often ask questions which may amount to an interrogation. Police should supply occupiers of search premises with a paper that outlines their rights. Special rules apply to search of people with confidential personal counselling and welfare responsibilities. Under PACE, some categories of confidential material are not available to police. But staff taking work home with them may find that files that would have been legally protected at work are unprotected at home.
Drug Offences and Rights in Custody People suspected of "arrestable offences" are entitled to
Serious arrestable offences People suspected of serious arrestable offences may be
After 96 hours, people suspected of minor offences must either be charged or released
The police are trained in interrogation and are aware that some drug users are disoriented. They may play on this. Most people are prepared to do almost anything to get out of the police station - even to sign false statements admitting guilt. The best approach to questioning in custody, is to insist that a solicitor is called. (See our 'Rights on arrest' page for more info.) Although silence will probably lead to longer detention and perhaps some harassment, there are strict limits on detention, and eventually the police will have to release or make a charge. Young people under 17 should not be questioned without an appropriate adult being present - a parent, or social worker. Interviews taken without an appropriate adult present are never admissible in court. In dealing with the police it is useful to have a degree of self awareness. Insisting on theoretical rights can be difficult without support, information and insight into how the police are likely to react.
Right to silence Many drug users are convicted of offences because of verbal and written admissions made to the police. Sometimes such admissions form part of the "facts" of a case, and may determine whether a person is charged with, say possession, or possession with intent to supply. Past possession charges are usually brought on the basis of admissions made to the police. If you are in doubt about your rights, or what you should say, then insist on seeing a solicitor, and say nothing until you have spoken with them. What is said during questioning will be of critical importance even without a formal caution. Everyone held in custody has the right to see the Duty Solicitor, for free legal advice. See our Bust Card for more info)
Rules on detention Many people held in police stations are not under arrest at all. They are said to be "helping police with their enquiries". If they try to leave, however, they often find themselves under arrest. Some people are not sure whether or not they are under arrest. If they cannot leave the station on request, they should insist that they are arrested and booked in by the custody officer. Arrest means being under forcible detention and this would start the PACE "clock". Under PACE, most important rules governing detention apply only if the person is under arrest. Generally speaking, it is an advantage to have been arrested. Strict time limits to detention apply and it is possible to sue in cases of wrongful arrest. A custody officer is responsible for the welfare of prisoners. The officer is independent of the investigation. Anyone booked into a police station should make sure that the arrival time is logged correctly. The custody officer has a special duty to call a doctor if it is known or suspected that a detainee has been using drugs (Police and Criminal Evidence Act Codes of Practice s66).
Helping someone under arrest The best way to help someone who has been arrested is to get a solicitor involved immediately. Release can contact solicitors and has a 24 hour helpline. All help at a police station is covered under non means tested legal aid. See our drugs bustcard for info and help line details. Information from Release: Advice Line 020 7729 9904 10-6 Monday to Friday If in doubt, it is always advisable to speak to a solicitor. You can receive advice from a solicitor free of charge at the police station. IMPORTANT NOTICE: This information is provided for guidance only. Although it is accurate to the best of our knowledge, we strongly recommend you seek proper legal advice and counsel. More info: urban75 drug links Home Office Drugs Info Drugscope - UK drugs charity |
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