Drugs Offences Litigation

In different jurisdictions, the possession and use of certain substances is restricted. These substances include chemicals and herbs that can be used for medicinal or recreational purposes. Such substances, which can affect the physiological and psychological state of a person are generally referred to as drugs. Societies restrict the use of these drugs because of their direct effects on those who use them, and the indirect effects on society. Different jurisdictions must take a decision about which drugs, and the intended use of the drugs, constitute a criminal offence. The Misuse of Drugs Act 1971 classifies drugs under three categories: Class A, B and C. Class A drugs include cocaine, morphine and oxycodone; cannabis and codeine are Class B; and diazepam and testosterone fall under Class C.

Cannabis, for instance, has gained mainstream popularity in recent years for its medicinal uses. However, the possession of cannabis and products therefrom remain an offence in some jurisdictions. While medicinal use is legal in the UK, recreational use is still illegal. Before medicinal use of cannabis was legalised, the challenge of navigating the difference in acceptance between jurisdictions was evidenced in two cases of young epilepsy sufferers who made headlines. Having evidence of how much their conditions improved on cannabis, Alfie Dingley and Billy Caldwell’s parents had to fight hard to make the drug available to their children in the UK. For Dingley, the fight began when his mother, who had legally obtained some cannabis oil in Canada was unable to bring the drug into the UK.

While medicinal use of cannabis is legal in the UK, it is highly restricted and the drug must be obtained with a prescription and its use monitored by a National Health Insurance (NHI) physician. There is a strong push for the legalisation of the recreational use of cannabis as Canada has recently done  but it is unlikely that that will happen anytime soon.

The misuse of drugs can change the course of a person’s life when they run afoul of the law. Sometimes, the misuse is intentional but, in some cases, it is an inadvertent misuse due to ignorance of the composition of substances being ingested for medical or recreational purposes. Schedule 4 of the Misuse of Drugs Act provides for the prosecution and punishment of offences, which range from fines to life in prison for some offences related to Class A drugs.

Prosecuting persons found in possession of restricted drugs can sometimes be an uphill task for the State. Factors such as the class of the drug, the quantity of the drug found, and the purpose for which the drug is to be used, all come into play as the prosecution prepares their case. Legislation such as the Psychoactive Substances Act 2016, the Drugs Act 2005, the Proceeds of Crime Act 2002, and the Criminal Finances Act 2017, among others, provide guidance. A misstep by the prosecution can lead to a defendant walking away unpunished for a drugs offence.

Under the Psychoactive Substances Act 2016, psychoactive substances are defined as any non-exempted substance which is capable of producing a psychoactive effect in a person who consumes it. Exempted substances include, certain controlled drugs, medicinal products, alcoholic products, nicotine, caffeine and food. Of course, food and drink containing any prohibited ingredient becomes prohibited. Activities such as being in possession, production, supply, offering to supply, possession with intent to supply, and importing or exporting psychoactive substances constitute an offence under the Act except the activities are carried on by a healthcare professional acting in the course of his profession.

For the defence, issues such as lack of knowledge of the true nature of the drugs, and lack of intention for supply offences, must be proved to escape conviction on drugs offences. Section 28(3)(b) of the Misuse of Drugs Act 1971 provides that where the prosecution proves that the accused was in possession of a controlled substance, the accused will be acquitted where:

‘(i)…he proves that he neither believed nor suspected nor had reason to suspect that the substance or product in question was a controlled drug; or

(ii)…he proves that he believed the substance or product in question to be a controlled drug, or a controlled drug of a description, such that, if it had in fact been that controlled drug or a controlled drug of that description, he would not at the material time have been committing any offence to which this section applies.’

As already stated above, prosecution of drug offences can be a complex process for both sides. Every step from the investigation to the searches, arrest, obtaining and forensic analysis of evidence, the use of expert witnesses, and any extended detention of suspected drug offenders must follow strict guidelines. The Drugs Offences Handbook aims to address the complex issues in litigating drugs offences, looking at a range of legislation as well as decided cases to give a practical guide to lawyers in the litigation of drugs offences.

This article is the final part in our criminal law series. For more information see Bloomsbury Professional’s Criminal Practice Series.