Possessing a controlled drug with intent to supply

From CrimeLine from Andrew Keogh

Possession

Misuse of Drugs Act 1971 Section 37(3) For the purposes of this Act the things which a person has in his possession shall be taken to include any thing subject to his control which is in the custody of another.

Possession is contrary to section 5(3) Misuse of Drugs Act 1971

There are two elements to possession; Physical possession Custody or Control; and Knowledge of Possession.

A person does not possess something that is put into his pocket or house without his knowledge.

A mere mistake as to the quality of a thing under the defendant’s control is not enough to prevent him being in possession – for example, in possession of heroin believing it to be cannabis or aspirin. In Searle v Randolph [1972] Crim LR 779 DC the defendant picked up some cigarette ends not realising they contained a small amount of cannabis. He put them in his pocket. The Justices acquitted him of possession of a controlled drug. The prosecution appealed by way of case stated. The Divisional Court in remitting the case to the Justices directing them to convict said that it was sufficient that the defendant knew he had possession of the cigarette end ands that in fact contained cannabis.

If a defendant believed that the thing was of a wholly different nature to that which in fact it was then to the results would be otherwise.

A person is in possession of something if they have knowledge of its presence and some control over it; but they would not have possession unless they either knew, or the circumstance were such that they had the opportunity, whether availed or not, to learn or discover in a general way what the items were.

Possession of drugs is not dependant on memory

Possession of drugs is not dependant on memory R v Martindale [1986] 84 Cr. App. R. 31 CA Lord Lane CJ said at 33 –

"Possession does not depend upon the alleged possessor's powers of memory. Nor does possession come and go as memory revives or fails. If it were to do so, a man with a poor memory would be acquitted, he with a good memory would be convicted."

R v Buswell [1972] 1 WLR 64, concerned unauthorised possession of drugs, Phillimore LJ said at 67 C –

"If you have got it in your custody and you put it in some safe place and then forget that you have got it, and discover a year or two later, when you happen to look into that particular receptacle that it is still there, it seems to this court idle to suggest that during those two years it has not been in your possession. It has been there under your hand and control."

It is important to note that in – Buswell and Martindale it was clear that the drugs were under the control of the defendants when it was placed where it was later found.

Relevance of quantity

Under section 5(2) of the Misuse of Drugs Act 1971 the prosecution do not have to prove that the defendant was in possession of a usable amount of the controlled drug. Mere possession of a quantity however minute will suffice. The question is one of fact and common sense. If it is visible and measurable it is certainly something. The amount and visibility will also be relevant to the issue of knowledge. Archbold 26-67.

DPP v Brooks [1974] AC 862, 866H, Lord Diplock giving the judgment of the Privy Council said in the context of a case about unlawful possession of drugs.

"In the ordinary use of the word :"possession", one has in one's possession whatever is, to one's knowledge, physically in one's custody or under one's physical control."

R v Boyesen [1982] AC 768, 773G Lord Scarman stated:

"The statutory offence may be described as an absolute one in the sense that the prosecution establish it by proving possession without authority: section 5(1) and section 5(2) of the Act. Section 28 provides for certain defences which, if they are to succeed, the defendant must prove on a balance of probabilities (now Evidential burden). They do not arise for consideration in this appeal.

Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control. You may possess a thing without knowing or comprehending its nature: but you do not possess it unless you know you have it."

Defences

There is a defence under section 28 Misuse of Drugs Act 1968. If the defendant can show that, they neither knew nor suspected nor had reason to suspect that the substance in question was a controlled drug.

There is an evidential burden on the defendant to show that, they neither knew nor suspected nor had reason to suspect that the substance in question was a controlled drug. It is then for the prosecution to prove on all of the evidence the guilt of the accused.

Misuse of Drugs Act 1971 Section 5(4) In any proceedings for an offence under subsection (2) above in which it is proved that the accused had a controlled drug in his possession, it shall be a defence for him to prove—

(a) that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of preventing another from committing or continuing to commit an offence in connection with that drug and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to destroy the drug or to deliver it into the custody of a person lawfully entitled to take custody of it; or

(b) that, knowing or suspecting it to be a controlled drug, he took possession of it for the purpose of delivering it into the custody of a person lawfully entitled to take custody of it and that as soon as possible after taking possession of it he took all such steps as were reasonably open to him to deliver it into the custody of such a person.

Charging Standard: Possession of controlled drug

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

A person found in possession of one form of drug, believing it to be another form of drug should be charged with the substantive offence of possession of the actual drug. He should not be 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. (R v Russell (1992) 94 Cr App R 351).

Cannabis, cannabis resin, cannabinol and cannabinol derivatives are Class C drugs. The sentence for possession of cannabis is now reduced from 5 years' to 2 years' imprisonment; The sentence for Class C has been increased to 14 years for trafficking, production, supplying, offering to supply, possession with intent to supply, and being an occupier of premises from which drugs are sold. The Policy Guidance states "The maximum sentence for Class C offences is now the same as that for the comparable Class B offences. Accordingly, it would be appropriate in such Class C cases for prosecutors to seek committal unless there is only small-scale supply for no payment. This reflects the current guideline for Class B drugs".

The Court of Appeal has 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).

Taylor, R. v [2001] EWCA Crim 2263 (23 October 2001)

The applicant pleaded guilty, on re-arraignment, to possessing a controlled drug of Class B with intent to supply, namely just over 90 grammes of cannabis. He was sentenced to 12 months' imprisonment. That plea of guilty was entered after the judge had rejected a submission on his behalf that a prosecution under the Misuse of Drugs Act 1971, infringed his rights under Articles 9 and 8 of the European Convention on Human Rights or, alternatively, that the Crown had to prove that a prosecution was a necessary and appropriate response in fulfilment of a legitimate aim. The judge directed that the second count in the indictment, of having a bladed or pointed article in a public place, should remain on the file on the usual terms.

Held: Interesting though Mr Davies' submissions have been, they do not persuade us that it is arguable that the Crown Court judge, in his approach to this matter, in the light of the concessions made before him, erred in any way. Assuming that Convention rights are enjoyed, his conclusions in relation to Articles 9 and 8 were, as it seems to us, correct. He was not, as it seems to us, required to conduct a trial, hearing evidence as to the merits or demerits of cannabis. He was not required to investigate whether Rastafarianism was a religion because that was conceded by the prosecution. He was, as it seems to us, properly entitled to rely upon the inferences to be drawn from the United Kingdom's subscription to the 1961 and 1988 conventions and he was also, in the exercise of his discretion, fully entitled to reach the conclusion, which he did, that no stay was appropriate in relation to the prosecution of the applicant and that questions of proportionality and necessity were not proper questions for consideration by a jury.

Evidential considerations: Proof of possession

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

actual physical possession;
knowledge.

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

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

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

Lambert, R v. [2001] UKHL 37; [2001] 3 WLR 206 (5th July, 2001)

"....Lord Reid in Warner v Metropolitan Police Commissioner [1969] 2 AC 256 and your Lordships' decision in B v Director of Public Prosecutions [2000] 2 AC 428, he said that the mental element in the offence of possession of a controlled drug was not satisfied unless the prosecution proved that the defendant knew that the substance or product in his possession was a controlled drug. He said that the offences described in section 5 of the 1971 Act required proof of possession not of a container or an article of whose character the defendant was unaware but of a controlled drug. Knowledge that it was a controlled drug must be taken to be an essential element in the mens rea of the offence."

Joint possession of drugs

Where drugs are found in premises occupied by more than one person , or in a car in which there is more than one occupant. Mere knowledge of the existence of drugs is not enough to prove an allegation of joint possession; it is necessary to show that each defendant participated in the offence charged. The prosecution may have to prove either that the drugs have come from a "pool" from which they all might draw or by some other means that each defendant is liable as either a principal or secondary party (Archbold 2004, 26-69 & 70).

Brock, R v (18th March, 1999)

Brock, R v [1999] EWCA Crim 756 (18th March, 1999) Two cases have been cited to us: R v Conway and Burkes [1994] Crim.L.R and R v Bland [1988 Crim.L.R. 41. Those authorities can be clearly distinguished from this case because in those authorities neither of the appellants had the possession and control that can be found in this case.

What has to be established is that the defendant not only knew of the presence of the drugs, but had some control over them and/or that he was a participant in their possession by being party to a joint enterprise with the other party. See: Searle [1971] Crim LR 592, Conway and Burker [1994] Crim LR 826.

Groves, R v (26th June, 1997)

Groves, R v [1997] EWCA Crim 1571 (26th June, 1997)

Where drugs are found in jointly occupied premises knowledge alone is not enough nor is mere acquiescence. What has to be established is that the defendant not only knew of the presence of the drugs, but had some control over them and/or that he was a participant in their possession by being party to a joint enterprise. In that connection the Court referred to the cases on which the appellant relids and which were helpfully cited in his skeleton argument of Searle [1971] Crim LR 592, Conway and Burker [1994] Crim LR 826.

Bland, R. v (21 July 1987)

Bland, R. v [1987] EWCA Crim 1 (21 July 1987) “….The fact that these two young people were living together in the same room was not sufficient evidence from which the jury could draw such an inference. There was undoubtedly sufficient evidence for the jury to infer knowledge on the part of the appellant that Mr. Ratliff was in fact dealing in drugs, but no more. Assistance, though passive, requires more than mere knowledge. For example it requires evidence of encouragement at least, or of some element of control. Such evidence was entirely lacking in this case at the close of the prosecution case.”

Evidential considerations: Reverse burdens of proof

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

Drug Offences, incorporating the Charging Standard

The word "prove" is to read as an evidential burden of proof

M, R. v (20 December 2007)

M, R. v [2007] EWCA Crim 3228 (20 December 2007) Section 28(3) of the Misuse of Drugs Act 1971

2. ….......The House of Lords resolved that question by deciding that the word "prove" in the sub-section was to read as an evidential burden of proof rather than a legal burden of proof. In other words the defendant had to put forward sufficient evidence to satisfy the court that he or she neither believed nor reasonably suspected that the substance was a controlled drug, but once there was sufficient evidence of that, the burden of proving that he or she did, in fact, believe or suspect that the substance was a controlled drug remained with the Crown.

11. If a judge decides to leave to a jury the question whether a defendant has discharged the evidential burden of raising sufficient persuasive evidence that she did not know or suspect that the substance of which she had possession was a controlled drug, as well as the question of whether the Crown has discharged the legal burden of proving that the defendant did in fact know or had reason to suspect that the substance was a controlled drug, a much more careful direction is needed than that supplied by the judge. At a minimum, such direction must explain the difference between an evidential burden and a legal burden of proof in terms that a jury can understand. It must then also explain that the evidential burden can be discharged on a balance of probabilities, but the legal burden on the Crown has to be discharged to a criminal burden of making the jury sure. Without some such careful explanation, a direction that the burden on the defendant "does not detract from the fact that the Crown must prove her guilt" is, with respect to HHJ McKittrick, not readily understandable.

12. The difficulty of giving a comprehensible direction, which this court readily recognises, only serves to underline the good sense of trying to get an agreement (if possible) that the evidential burden has been discharged so that only the Crown's burden need be left to the jury. In these circumstances we feel we have no option but to quash this conviction.

Evidential considerations: Proof of intent to supply

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

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

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

R v Maginnis (05 March 1987)

R v Maginnis [1987] UKHL 4 (05 March 1987) Certified Question: "Whether a person in unlawful possession of a controlled drug which has been deposited with him for safe keeping has the intent to supply that drug to another if his intention is to return the drug to the person who deposited it with him". Held: That the Certified Question be answered in the affirmative.

Evidential considerations: The drug user as a witness

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

the quality of the evidence will need to be considered as well as the quality of the witness
the value of the evidence to the police in an operation against a drug dealer may incline against prosecuting the witness
the gravity of the offence committed by the witness; generally, the more serious the offence, the more likely the witness him or herself will be prosecuted
where it is proposed to call an accomplice for the prosecution it is the practice to
(a) omit him from the indictment, or
(b) take his plea of guilty on arraignment
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 April 18, 1989, CA.)

Drug Offences, incorporating the Charging Standard

Defence of necessity

Quayle & Ors v R [2005] EWCA Crim 1415 (27 May 2005) There were five appeals against conviction and one Attorney General's reference. All these cases raised issues about the availability and extent of any defence of medical necessity in respect of the commission of what would otherwise constitute offences against the legislation governing the cultivation, production, importation and possession of cannabis. Held: none of the defendants in any of the cases able to rely at trial on any facts which could at common law give him or her any defence of necessity.

Drugs Value Sentencing

R v Aroyewuni [1994] Crim. LR 695 the Court of Appeal again amended existing sentencing guidelines relating to the importation of Class A drugs. The court held that street value would no longer be used as a basis for determining the sentence in such cases and that a better way to measure the relative significance of any seizure of Class A drugs is by weight and purity. Drug Offenders and Sentencing Policy

Jurak, R v [1999] EWCA Crim 1478 (21st May, 1999) The scale of sentences for the offence of possessing heroin with intent to supply it to others is well-established by authorities which Mr Telford does not question. As he puts it, “sentences begin at 5 years (after trial) and a weight of pure heroin of 500 grams and above will merit sentences of 10 years and above”. (cf. R. v. Aroyewuni (Arangoren) 1994 16 Cr. App. R.(S) 211). It is also clear that the scope for personal mitigation is limited, when the defendant is found guilty of dealing in a class A drug for profit to himself and on a substantial scale. Whilst therefore the appellant had no prior convictions except one for possession alone, and had experienced the misfortune of becoming a drug addict himself, with tragic consequences for his personal and family life, nevertheless these factors are of little weight, when he was prepared deliberately to expose others to the same risks as himself.

Following this trial, therefore, the judge was correct to impose a sentence of between five and ten years. There can never be a precise mathematical correlation between the amount of pure heroin and the exact number of years. As has often been said, the appellant deprived himself of the most potent form of mitigation by denying himself the discount which a guilty plea would provide. For this offence, in these circumstances, the sentence of eight years’ imprisonment cannot be said to be manifestly excessive or wrong in principle.

Supply

Attorney General Refrence No 101 (10 February 2010)

Attorney General Reference No 101 of 2009 [2010] EWCA Crim 238 (10 February 2010) The offender was sentenced to in total, 12 months' imprisonment suspended for two years, coupled with a supervision requirement and a drug rehabilitation requirement in each case of 12 months' duration. The sentence was imposed following late pleas of guilty to two offences of possession of drugs with intent to supply. After reviewing relevant authorities gave leave but did not alter the sentence which was passed by the court below.

Dalton, R. v (04 March 2009)

Dalton, R. v [2009] EWCA Crim 1855 (04 March 2009) The appellant pleaded guilty to possessing heroin with intent to supply. He was sentenced 9 months' imprisonment for that offence. Held: The sentence of 9 months, is consistent with decisions of the court in relation to social supply amongst friends of small quantities of cocaine. One such case is that of Branton-Speak, R. v [2006] EWCA Crim 1745 (27 June 2006); [2007] 1 Cr App R (S) 55, where the court reduced a sentence of 18 months to one of 12 months. There are others. Those, rather than the case of Afonso, provide the relevant guidance.

Afonso & Ors, R v [2004] EWCA Crim 2342 (9 September 2004) Out of work, young addicts, no pre cons, dealing to fund their own habits, a term of the order of two to two-and-a-half years' imprisonment. For young offenders, the custodial term is likely to be less.. Later decided cases suggest Afonso should not be departed from without good cause.

James & Ors (2 April 2008)

James & Ors [2008] EWCA Crim 765 (2 April 2008) Supplying cocaine from licensed premises- A 10 year sentence on 2 defendants concerned in supplying retail quantities of cocaine to customers at licensed premises for which they were responsible was reduced to 8 years. The question was whether they were “foot soldiers” or closer to the source of supply which would merit a longer sentence. The level of this sentence reflected the significant and unusual mitigation in this case: R v James [2009] 1 Cr App R (S) 1.

Dalessandro, R v (7 May 2008)

Dalessandro, R v [2008] EWCA Crim 1501 (7 May 2008) Possession of Class C drugs with intent to supply- bodybuilder supplying anabolic steroids- The appellant was a bodybuilder who had in his possession a variety of Class C drugs including anabolic steroids, some of which he used himself, others of which were supplied to other bodybuilders he knew. The Court found a sentence of 3 years’ imprisonment manifestly excessive given his guilty pleas, age and previous good character. The sentence was reduced to a total of 18 months’ imprisonment: R v Dalessandro [2009] 1 Cr App R (S) 29.

Hynes, R. v (12 August 2008)

Hynes, R. v [2008] EWCA Crim 1934 (12 August 2008) Supplying heroin- bag of drugs thrown over prison wall- A sentence of 5 years’ imprisonment was upheld for attempting to supply heroin and cannabis by throwing a bag over the perimeter wall of a prison. The bag was found to contain 100g of powder containing heroin, and 25g of cannabis. The appellant pleaded guilty on the basis that threats had been made against him. The sentencing judge accepted that substantial threats had been made against the appellant but imposed a sentence of 5 years’ imprisonment, using 7 years as his starting point before reducing in line with mitigating factors: R v Hynes [2009] 1 Cr App R (S) 90.

Mashoud, R. v (14 October 2008)

Mashoud, R. v [2008] EWCA Crim 2523 (14 October 2008) Possession of Class A drugs with intent to supply- serving prisoner supplying drugs- The appellant was a serving prisoner when 9.57g of heroin and 0.57g of cocaine was found in his cell. A sentence of 10 years’ imprisonment was reduced to 7 years: R v Mashoud [2009] 1 Cr App R (S) 113.

Attorney General's Reference No. 8 of 2007 (02 April 2007)

Attorney General's Reference No. 8 of 2007 [2007] EWCA Crim 922 (02 April 2007) The offender was convicted of one count of possessing a Class C controlled drug (cannabis) with intent to supply and one count of possessing a Class A controlled drug (cocaine) with intent to supply. He was sentenced to six months' detention suspended for two years on count 1 and to twelve months' detention concurrent suspended for two years, with an unpaid work requirement of 200 hours and a supervision requirement for two years on count 2. She was also ordered to pay £500 towards the prosecution costs. Held: The judge had every reason for the unusual approach that he adopted to this case. He had every reason for taking a particularly lenient view of this offender and imposing a sentence which, being custodial, emphasised the gravity of the offending, but which, being suspended, reflected the fact that she was unlikely to offend again and that it was not necessary in the circumstances that she should go straight into detention.

Older cases

Hurley, R v [1997] EWHC Admin 715 (28th July, 1997)

Wilkinson & Anor, R v [1997] EWCA Crim 2081 (7th August, 1997)]

Guneyl, R. v [1998] EWCA Crim 719 (27 February 1998)

Wijs & Ors, R v [1998] EWCA Crim 1662 (20th May, 1998) Amphetamine

Mashaollahi, R v [1999] EWCA Crim 1484 (24th May, 1999)

Mashaollahi, R v [2000] EWCA Crim 52 (25 July 2000)

R v Dorman [2003] EWCA Crim 3405

Taylor, R v [2004] EWCA Crim 3337 (16 December 2004)

Avazi & Ors, R. v [2007] EWCA Crim 3443 (20 December 2007) Para 27...is quite plain from a proper reading of the Panel's advice in full and the court's judgment in Mashaollahi, that purity is a reference to the question of whether or not there has been any adulteration of the consignment of opium. There was no evidence in this case of any contamination or adulteration of any sort. Accordingly, the judge was entitled to approach this case on the basis that this was opium of 100 per cent purity. That does not mean that, in determining the appropriate sentence, ultimately it would not be relevant to consider that the morphine content was not at the highest end of the concentration of morphine that is to be found in opium.

Where would we be without bailii please DONATE to BAILII

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland.
CrimeLine is sponsored by Keogh Solicitors. CrimeLine is published by CrimeLine Training Limited (Company No. 06748394)

Retrieved from "http://www.wikicrimeline.co.uk/index.php?title=Possessing_a_controlled_drug_with_intent_to_supply"

Category: Offences