Controlled drugs are illegal to possess, import, export, manufacture, cultivate or supply
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See also Conspiracy
Controlled drugs and their classification for purposes of this Act
Misuse of Drugs Act 1971, s.2
(1) In this Act -
(a) the expression "controlled drug" means any substance or product for the time being specified in Part I, II, or III of Schedule 2 to this Act, and
(b) the expressions "Class A drug", "Class B drug" and "Class C drug" mean any of the substances and products for the time being specified respectively in Part I, Part II and Part III of that Schedule;
and the provisions of Part IV of that Schedule shall have effect with respect to the meanings of expressions used in that Schedule see below .
Principal prohibitions and offences under the Act
(a) The importation/exportation of a controlled drug is prohibited: s.3.
(b) It is unlawful and an offence:
(i) to supply, to offer to supply, or to produce a controlled drug (or to be concerned in any of those activities): s.4;
(ii) to be in possession, or to possess with intent to supply, a controlled drug: s.5;
(iii) to cultivate cannabis: s.6;
(iv) for an occupier or manager of premises knowingly to permit certain drug related activities to take place on those premises: s.8;
(v) to perform certain activities, etc., relating to opium (s.9) or in connection with drug kits: s.9A;
(vi) to assist in or induce the commission abroad of an offence punishable under a corresponding law: s.20; and
(vii) to obstruct the exercise of powers of search and seizure, to conceal, or fail to produce, certain documents: s.23.
Restriction of Importation and Exportation of Drugs
Misuse of Drugs Act 1971, s.3
(1) Subject to subsection (2) below -
(a) the importation of a controlled drug; and
(b) the exportation of a controlled drug,
are hereby prohibited.
(2) Subsection (1) above does not apply -
(a) to the importation or exportation of a controlled drug which is for the time being excepted from paragraph (a) or, as the case may be, paragraph (b) of subsection (1) above by regulations under section 7 of this Act; or
(b) to the importation or exportation of a controlled drug under and in accordance with the terms of a licence issued by the Secretary of State and in compliance with any conditions attached thereto.
Restriction of Production and Supply of Controlled Drugs
Misuse of Drugs Act 1971, s.4
(1) Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person -
(a) to produce a controlled drug; or
(b) to supply or offer to supply a controlled drug to another.
(2) Subject to section 28 of this Act, it is an offence for a person -
(a) to produce a controlled drug in contravention of subsection (1) above; or
(b) to be concerned in the production of such a drug in contravention of that subsection by another.
(3) Subject to section 28 of this Act, it is an offence for a person -
(a) to supply or offer to supply a controlled drug to another in contravention of subsection (1) above; or
(b) to be concerned in the supplying of such a drug to another in contravention of that subsection; or
(c) to be concerned in the making to another in contravention of that subsection of an offer to supply such a drug.
Aggravation of offence of supply of controlled drug
Misuse of Drugs Act 1971, s.4A
(1) This section applies if -
(a) a court is considering the seriousness of an offence under section 4(3) of this Act, and
(b) at the time the offence was committed the offender had attained the age of 18.
(2) If either of the following conditions is met the court -
(a) must treat the fact that the condition is met as an aggravating factor (that is to say, a factor that increases the seriousness of the offence), and
(b) must state in open court that the offence is so aggravated.
(3) The first condition is that the offence was committed on or in the vicinity of school premises at a relevant time.
(4) The second condition is that in connection with the commission of the offence the offender used a courier who, at the time the offence was committed, was under the age of 18.
(5) In subsection (3), a relevant time is -
(a) any time when the school premises are in use by persons under the age of 18;
(b) one hour before the start and one hour after the end of any such time.
(6) For the purposes of subsection (4), a person uses a courier in connection with an offence under section 4(3) of this Act if he causes or permits another person (the courier) -
(a) to deliver a controlled drug to a third person, or
(b) to deliver a drug related consideration to himself or a third person.
(7) For the purposes of subsection (6), a drug related consideration is a consideration of any description which -
(a) is obtained in connection with the supply of a controlled drug, or
(b) is intended to be used in connection with obtaining a controlled drug.
(8) In this section -
"school premises" means land used for the purposes of a school excluding any land occupied solely as a dwelling by a person employed at the school.
Ingredients of the offences
Statutory definition of "production"
See section 37(1), post, 27-127, which provides that production of a controlled drug means production of it by manufacture, cultivation or any other method; "any other method" includes the preparation of cannabis plants so as to discard those parts which are not usable and put together those parts which are:R. v. Harris (Kevin Arthur)[1996.
The conversion of one form of a drug into another form of the same genus may be production. Thus, the conversion of cocaine hydrochloride (a salt falling within paragraph 4 of Part I of Schedule 2) into free base cocaine, "crack" (a substance falling within paragraph 5, but not paragraph 4), amounts to production of the free base cocaine. It is the production of a substance (not by manufacture or cultivation but by other method within section 37(1)) with physical and chemical features different from the salt from which it springs, albeit sharing the same generic term, cocaine: R. v. Russell (P.A.),94 Cr.App.R. 351, CA.
In R. v. Farr the Court of Appeal held that there must be established some identifiable participation in the process of producing a controlled drug before a person can be convicted under section 4. What that decision does not make clear (as reported) is whether section 4(1) and (2) excludes the ordinary rules in respect of participation by secondary parties and thus restricts liability under section 4(2). It is submitted that this is not what either Parliament or the Court of Appeal intended. The full transcript of the judgment suggests that it is a case best seen as having been decided on its "unique" facts. Two men arrived unannounced at premises occupied by the appellant and were admitted. They asked to use the kitchen and the appellant knew that they were going to produce (as they did) pink heroin from morphine. In quashing the conviction, the court held that there was no evidence that "the appellant did anything that could amount to participation, or that could be interpreted as an act of participation, in the manufacture of a controlled drug":
The court examined the relationship between section 8 and section 4 and concluded that"there must be some identifiable participation in the process of producing the drug, established before a person can be convicted as an abider and abettor under section 4. For example, if, by prior arrangement, the appellant had come to an agreement with [the men] that he would admit them to his premises and provide facilities, then another situation might well have arisen which would fall within section 4. In this case there is no doubt whatever that the facts established on the evidence would make this appellant liable to conviction under section 8. ... It is necessary ... to see whether any evidence can be spelt out of the interview between the police officers and this appellant which would indicate significant participation. This must involve both the intention to participate and some actus reus in that direction, before there would be evidence which could be left to the jury."
The court concluded that the appellant was doing no more than knowingly permitting or suffering the production of the drug, but added that there was no reason why someone who knowingly permitted or suffered production of a drug should not also be a participant in such production.
Ingredients of the offences
Being "concerned in"
For an offence to be shown to have been committed contrary to section 4(3)(b) (or (c)), the prosecution first has to prove the supply of a drug to another, or the making of an offer to supply a drug to another, in contravention of section 4(1) of the Act; secondly, participation by the defendant in an enterprise involving such supply, or such offer to supply; and thirdly, knowledge of the nature of the enterprise, i.e. that it involved supply of a drug, or offering to supply a drug: R. v. Hughes (R.),81 .It is insufficient for the trial judge when directing the jury upon the law on this topic simply to read out the relevant provisions: ibid.
Section 4(3)(c) has been particularly widely drawn so as to involve people who may be at some distance from the actual making of the offer: R. v. Blake,68
Offer to supply
In deciding what constitutes an "offer", it is inappropriate to seek to introduce the rules of contract law relating to offer and acceptance (in particular that an offer, once accepted, can no longer be treated as an offer.
Three situations often fall to be considered in respect of charges under section 4(3)(a) and (c). The first is where the accused makes an offer to supply a controlled drug of one description (e.g. cocaine) which in fact turns out to be a controlled drug of a wholly different description. On these facts there exists no difficulty and section 28(3) affords no defence.
The offence lies in the making of the offer to supply a controlled drug. The fact that a different controlled drug is involved is irrelevant.
The second situation is where a person offers to supply a controlled drug but the substance is in fact not controlled, albeit that he believes he is offering a controlled drug. Haggard v. Mason
The third situation is where a person offers to supply a controlled drug, but the substance is, to the knowledge or belief of the accused, not controlled at all. As there is nothing in section 4(1)(b) which provides that the person who makes an offer to supply a controlled drug must intend to do so, the bogus nature of the offer is immaterial: R. v. Goodard (where it appears that the offer was unrelated to any particular physical substance). The fact that there was no intention to supply a controlled drug is potential mitigation: ibid.
In R. v. Mitchell the court said :
"An offer may be by words or conduct. If it is by words, one has to judge from the words whether it is an offer to supply a controlled drug. If a person knowingly makes an offer to supply in words which have that effect, that is the offence. Of course if the offer was by conduct, such as holding a packet in one's hand and in the other hand a placard saying 'GBP20', it might be another question; there it might be relevant whether what was in the packet was a controlled drug or not."
Meaning of "supply"
Section 37(1) merely states that "supplying includes distributing". It would therefore seem that to pass a reefer cigarette from one person to another so that each smoker may take "a draw" amounts to an act of supply: R. v. Moore
In Holmes v. Chief Constable of Merseyside Police , the Divisional Court held that the word "supply" had to be given its ordinary everyday meaning so that if a person in physical possession of a controlled drug supplies it to others who prior to the supplying were in joint possession of the drug with him, that person semble commits an offence under section 5(3): and see R. v. Buckley and Lane.
The offence does not require proof of payment or reward. Nor need a jury be unanimous as to whether an accused intended to supply on a commercial basis or to a friend: R. v. Ibrahima (Thomas) Crim.L.R. 887, CA.
In R. v. Mills (Thomas Leonard Lantey) 1 Q.B. 522,47 Cr.App.R. 49, CCA, it was suggested that "supply" involves the passing of possession from one person to another, but this is manifestly too simplistic because, for example, a patron who hands his coat to a cloakroom attendant for safe-keeping does not (in ordinary speech) supply him with it and, conversely, the cloakroom attendant does not "supply" the depositor with his own coat when it is returned to him. However, this example creates practical difficulties in the context of the mischief which section 4 is endeavouring to tackle. Where a person deposits controlled drugs with another for "safe-keeping and return", the depositor often does not intend that the custodian should use the drug for his own purposes and the custodian often intends no more than that the depositor should resume actual possession.
In R. v. X (Supply of Drugs) X was a registered police informant whose defence was that he had the drugs pursuant to an arrangement with police officers to pass them to R who would sell them to an undercover officer. The Court of Appeal, dismissing the appeal, held that if the jury accepted the defendant's evidence he would have intended to supply in the R. v. Maginnis ( A.C. 303) sense. The supplier's motive is not relevant and should not be confused with his intention. The supplier's motive would be relevant to sentence and this is an issue which should be decided by the judge and not the jury.
The prosecution of a Rastafarian for possession of cannabis with intent to supply where the supply was to be to other Rastafarians for use in connection with religious worship, insofar as it interfered with his right to freedom of religion as guaranteed by Article 9(1) of the ECHR was justifiable under Article 9(2) as being prescribed by law and "necessary in a democratic society ... for the protection of public order, health or morals"; there being no issue as to the restriction being "prescribed by law", the question was whether there was a pressing social need for the restriction and, if so, whether the means adopted constituted a proportionate response; as to this, the provisions of the Single Convention on Narcotic Drugs 1961, as amended by the Protocol of 1972 , and of the Vienna Convention , both of which require contracting parties to penalise the distribution or delivery "on any terms whatsoever" of any narcotic drug, constitute powerful evidence of an international consensus that an unqualified ban on the possession of cannabis with intent to supply is necessary to combat the dangers to public health and safety arising from such drugs; and the judge had been correct not to leave issues as to proportionality to the jury; as to compatibility of the legislation with the European Convention, a distinction is to be drawn between legislation prohibiting conduct because it relates to or is motivated by religious belief and legislation which is of general application but prohibits, for other reasons, conduct which happens to be encouraged or required by religious belief: R. v. Taylor (Paul Simon)
Conspiracy to supply
Where a conspiracy to supply "another" is alleged, that other must be taken to refer to someone other than a conspirator. It is, however, permissible to allege a conspiracy to supply one of the conspirators but that must be made clear in the particulars: R. v. Drew (Martin Ralph)
Restriction of possession of controlled drugs
Misuse of Drugs Act 1971, s.5
(1) Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession.
(2) Subject to section 28 of this Act and to subsection (4) below, it is an offence for a person to have a controlled drug in his possession in contravention of subsection (1) above.
(3) Subject to section 28 of this Act, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of this Act.
(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.
[(4A) In any proceedings for an offence under subsection (3) above, if it is proved that the accused had an amount of a controlled drug in his possession which is not less than the prescribed amount, the court or jury must assume that he had the drug in his possession with the intent to supply it as mentioned in subsection (3).
(4B) Subsection (4A) above does not apply if evidence is adduced which is sufficient to raise an issue that the accused may not have had the drug in his possession with that intent.
(4C) Regulations under subsection (4A) above have effect only in relation to proceedings for an offence committed after the regulations come into force.]
(6) Nothing in subsection (4) above shall prejudice any defence which it is open to a person charged with an offence under this section to raise apart from that subsection.
Classification of controlled drugs
Misuse of Drugs Act 1971, Sched. 2
Part I Class A Drugs
1.The following substances and products, namely
(A) Class A List
Benzylmorphine (3-benzyl morphine)
Coca leaf See Meaning
Difenoxin (1-(3-cyano-3, 3-diphenyl propyl)-4-phenylpiperidine-4-carboxylic acid)
Ecgonine, and any derivative of ecgonine which is convertible to ecgonine or to cocaine
Lysergide and other N-alkyl derivatives of lysergamide
Morphine methobromide, morphine N-oxide and other pentavalent nitrogen morphine derivatives
Opium, whether raw, prepared or medicinal
Poppy-straw and concentrate of poppy-straw See Meaning
Properidine (1-methyl-4-phenylpiperidine-4-carboxylic acid isopropyl ester)
2-Methyl-3-morpholino-1,1 diphenylpropanecarboxylic acid
4-Phenylpiperidine-4-carboxylic acid ethylester
(b) any compound (not being a compound for the time being specified in sub-paragraph (a) above) structurally derived from tryptamine or from a ring-hydroxy tryptamine by substitution at the nitrogen atom of the sidechain with one or more alkyl substituents but no other substituent;
(BA) the following phenethylamine derivatives, namely:
(BA) Phenethylamine Derivatives
(c) any compound (not being methoxyphenamine or a compound for the time being specified in sub-paragraph (a) above) structurally derived from phenethylamine, an N-alkylphenethylamine, &agr;-methylphenethylamine, an N-alkyl-&agr;-methylphenethylamine, &agr;-ethylphenethylamine, or an N-alkyl-&agr;-ethylphenethylamine by substitution in the ring to any extent with alkyl, alkoxy, alkyl-enedioxy or halide substituents, whether or not further substituted in the ring by one or more other univalent substituents.
(d) any compound (not being a compound for the time being specified in sub-paragraph (a) above) structurally derived from fentanyl by modification in any of the following ways, that is to say,
(i) by replacement of the phenyl portion of the phenethyl group by any heteromonocycle whether or not further substituted in the heterocycle;
(ii) by substitution in the phenethyl group with alkyl, alkenyl, alkoxy, hydroxy, halogeno, haloalkyl, amino or nitro groups;
(iii) by substitution in the piperidine ring with alkyl or alkenyl groups;
(iv) by substitution in the aniline ring with alkyl, alkoxy, alkylenedioxy, halogeno or haloalkyl groups;
(v) by substitution at the 4-position of the piperidine ring with any alkoxycarbonyl or alkoxyalkyl or acyloxy group;
(vi) by replacement of the N-propionyl group by another acyl group;
(e) any compound (not being a compound for the time being specified in sub-paragraph (a) above) structurally derived from pethidine by modification in any of the following ways, that is to say,
(i) by replacement of the l-methyl group by an acyl, alkyl whether or not unsaturated, benzyl or phenethyl group, whether or not further substituted;
(ii) by substitution in the piperidine ring with alkyl or alkenyl groups or with a propano bridge, whether or not further substituted;
(iii) by substitution in the 4-phenyl ring with alkyl, alkoxy, aryloxy, halogeno or haloalkyl group;
(iv) by replacement of the 4-ethoxycarbonyl by any other alkoxycarbonyl or any alkoxyalkyl or acyloxy group;
(v) by formation of an N-oxide or of a quaternary base.
2.Any stereoisomeric form of a substance for the time being specified in paragraph 1 above not being dextromethorphan or dextrorphan.
Any ester or ether of a substance for the time being specified in paragraph 1 or 2 above not being a substance for the time being specified in Part II of this Schedule.
Any salt of a substance for the time being specified in any of paragraphs 1 to 3 above.
Any preparation or other product containing a substance or product for the time being specified in any of paragraphs 1 to 4 above.
Any preparation designed for administration by injection which includes a substance or product for the time being specified in any of paragraphs 1 to 3 of Part II of this Schedule.
Part II Class B Drugs
1.The following substances and products, namely
(A) Class B List
Part III Class C Drugs
1.The following substances, namely
(A) Class C List
(B) Class C List
(c) any compound (not being Trilostane or a compound for the time being specified in sub-paragraph (b) above) structurally derived from 17-hydroxyandrostan-3-one or from 17-hydroxyestran-3-one by modification in any of the following ways, that is to say,
(i) by further substitution at position 17 by a methyl or ethyl group;
(ii) by substitution to any extent at one or more of positions 1, 2, 4, 6, 7, 9, 11, or 16, but at no other position;
(iii) by unsaturation in the carbocyclic ring system to any extent, provided that there are no more than two ethylenic bonds in any one carbocyclic ring;
(iv) by fusion of ring A with a heterocyclic system;
(d) any substance which is an ester or ether (or, where more than one hydroxyl function is available, both an ester and an ether) of a substance specified in sub-paragraph (b) or described in sub-paragraph (c) above;
Non-human chorionic gonadotrophin
2. Any stereoisomeric form of a substance for the time being specified in paragraph 1 of this Part of this Schedule not being phenylpropanolamine.
3. [Identical to para. 3 (text) of Pt II (minus the reference to para. 2A).]
4. Any preparation or other product containing a substance for the time being specified in any of paragraphs 1 to 3 of this Part of this Schedule.
Part IV Meaning of Certain Expressions used in this Schedule
For the purposes of this Schedule the following expressions (which are not among those defined in section 37(1) of this Act) have the meanings hereby assigned to them respectively, that is to say -
"cannabinol derivatives" means the following substances, except where contained in cannabis or cannabis resin, namely tetrahydro derivatives of cannabinol and 3-alkyl homologues of cannabinol or of its tetrahydro derivatives;
"coca leaf" means the leaf of any plant of the genusErythroxylon from whose leaves cocaine can be extracted either directly or by chemical transformation;
"concentrate of poppy-straw" means the material produced when poppy-straw has entered into a process for the concentration of its alkaloids;
"medicinal opium" means raw opium which has undergone the process necessary to adapt it for medicinal use in accordance with the requirements of the British Pharmacopoeia, whether it is in the form of powder or is granulated or is in any other form, and whether it is or is not mixed with neutral substances;
"opium poppy" means the plant of the speciesPapaver somniferum L;
"poppy straw" means all parts, except the seeds, of the opium poppy, after mowing;
"raw opium" includes powdered or granulated opium but does not include medicinal opium.
This Schedule is printed as amended by the Misuse of Drugs Act 1971
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