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. 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.
'County Lines' is a national issue which involves the exploitation of vulnerable young people and adults by violent gang members in order to move and sell drugs across the country.
The National Crime Agency has identified that there is growing evidence of city-based organised crime gangs extending their drug dealing activity into new areas, many of which are coastal towns. The gangs recruit vulnerable people, often children, to act as couriers and to sell drugs.
'County Lines' operates by gangs from cities, in particular London, introducing a telephone number in a new area to sell crack and heroin directly at street level. Potential buyers telephone the number and local runners are dispatched to make deliveries via a telephone 'relay or exchange' system. The 'runners' are invariably children, often boys aged 14 to 17 years, who are groomed with money and gifts and forced to carry out day to day dealing. Runaway and missing children are also used by gangs to expand inner city drugs empires into county towns. Children as young as 11 years of age have been reported as being recruited into the highly sophisticated gangs.
Gang members enter into relationships with young women in order to secure a location for drugs to be stored in the new area. In addition, violence is used against drug users to coerce them to become runners, enforce debts, and use their accommodation as an operating base.
A 'County Lines' typology has been produced setting out the approach of the police and the CPS to 'County Lines' offending, including the safeguarding of vulnerable persons, and the investigation and prosecution of criminal offences.
Prosecutors are encouraged to consider all available charges when considering a prosecution in connection with 'County Lines' offending.
The Modern Slavery Act 2015 may provide opportunities to consider the circumstances of 'County Line' offending, particularly where there has been deliberate targeting, recruitment and significant exploitation of young and vulnerable people. Prosecutors should, however, be alert to the challenge of securing a conviction for a Modern Slavery Act offence.
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.
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.
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.
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.
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.
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.
On 8 November 2023, nitrous oxide became a controlled substance of Class C, under the Misuse of Drugs Act 1971: see the Misuse of Drugs Act 1971 (Amendment) Order 2023/1091. Previously, nitrous oxide was classified under the Psychoactive Substances Act 2016, which made the production, supply, importation and exportation of the drug illegal. However, possession, unless with the intent to supply, was not illegal. Nitrous oxide, as of 8 November is now subject to same prohibitions as other Class C drugs. The Misuse of Drugs (England and Wales and Scotland) (Amendment) Regulations 2023 provide for exemptions for the legitimate use of nitrous oxide – in healthcare, the motor and culinary industries (amongst others). These exemptions apply, except in instances where a person intends to wrongfully inhale the drug, or knows, or is reckless as to whether, it is likely to be wrongfully inhaled by some other person. Proving illegitimate use will therefore rely upon identifying the presence of nitrous oxide, alongside an assessment of its intended purpose or potential purpose. See also Home Office Nitrous Oxide Ban Guidance and Circular for more information.
The Misuse of Drugs Act 1971 (Amendment) Order 2024 came into force on 20 March 2024 and amends the 1971 Act to control 15 substances as Class A drugs, four substances as Class B drugs and one substance as a Class C drug.
Nitazenes have been involved in a number of drug-related deaths and near-fatal overdoses in the UK. The 2024 Order now controls 14 nitazenes as Class A drugs under the 1971 Act.
See also Home Office Circular 001/2024 for more information including the other substances now controlled as either Class A, B or C drugs.
The Act covers the range of offences set out below.
Opium related offences:
Supply of articles offences:
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).
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:
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:
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.
In deciding whether it is in the public interest to prosecute an adult offender for an offence of simple possession of a small amount of cannabis for personal use, including where the person believes in its assistance in alleviating medical conditions, prosecutors should consider the aggravating and mitigating factors for the possession of a small amount of cannabis for personal use (below).
The aggravating factors for the possession of a small amount of cannabis for personal use include:
The mitigating factors for the possession of a small amount of cannabis for personal use include:
Home Office Circular 018 2018 provides further detail about the re-scheduling of cannabis-based products for medicinal use in humans.
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.
The Psychoactive Substances Act 2016 defines 'psychoactive substance' and makes it an offence to produce, supply, offer to supply, possess with intent to supply, import and export psychoactive substances, and to possess a psychoactive substance in a custodial institution. The Psychoactive Substances Act 2016 came into force on 26th May 2016.
Fentanyl is a highly toxic synthetic opioid. It is controlled as a Class A drug. It is also prescribed as a pain killer or used as an anaesthetic under a medical practitioner's supervision. Effects include euphoria, drowsiness, confusion, sedation, respiratory depress and arrest, unconsciousness, coma and death.
Fentanyl is approximately 50 times more potent than heroin and 100 times more potent than morphine. As little as 0.002g of Fentanyl is potentially fatal. The high potency of Fentanyl greatly increases the risk of overdose, particularly where a person who uses drugs is unaware that a powder or pill contains Fentanyl. Fentanyl sold on the street can be mixed with heroin or cocaine, which amplifies its potency and potential dangers. There are a number of Fentanyl analogues.The analogues are compounds with a similar structure to Fentanyl but with varying potency. Not all of the analogues are a controlled drug. Where an analogue is not a controlled drug, it must be proven to be a psychoactive substance (see Psychoactive Substances guidance). The strength of Fentanyl, or its analogues, should be ascertained by forensic testing.
Non-pharmaceutical fentanyl is sold as a powder; spiked on blotter paper; mixed with or substituted for heroin; or as tablets that mimic other, less potent opioids. Fentanyl can be swallowed, snorted, injected or put on blotter paper and placed in the mouth.
There has been a significant increase in the availability of Fentanyl on the drugs market as a result of bulk production in China and on-line sales, including sales on the dark-web. Seizures of Fentanyl powders have ranged from milligram to kilogram quantities. The seized powders may be relatively pure or mixed with one or more substances including commonly used cutting agents (such as mannitol, lactose, and paracetamol), as well as heroin and other opioids.
Prosecutors must ensure that the correct offence category is charged and present evidence to the court that lower quantities of Fentanyl may still constitute a very serious offence. This will ensure that courts are able to impose appropriate and just sentences.
The prosecutor should bring to the court's attention evidence of the impact of the offending on an individual or a community and the aggravating and mitigating features of the case being considered.
The dangers of Fentanyl, even in small quantities, should be brought to the attention of the court. It may be appropriate for the expert witnesses to be present at the sentencing hearing, in order to assist the judge with questions about the potency of the Fentanyl.
The court should be provided with a statement from an experienced drug expert witness who fully understands the issues pertaining to fentanyl (or its analogues). The drug expert witness's statement should provide figures which set out a method of calculation to demonstrate scale when comparing fentanyl with illicit heroin. The statement should also identify that single gram quantities of fentanyl commonly trade for £x to £x each.
The prosecution should highlight the sentencing range within the Sentencing Council's Drug Offences Definitive Guideline and provide indications of the seriousness of the offence to allow the imposition of an appropriate sentence.
The Definitive Guideline identifies the aggravating factor 'exposure of others to more serious than usual danger, for example drugs cut with harmful substance'. Prosecutors should draw this aggravating factor to the court's attention, and that Fentanyl presents an increased potency.
Prosecutors should make applications for appropriate ancillary orders, as well as forfeiture and destruction of the Fentanyl based exhibits.
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).
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:
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.
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.
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:
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.
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.
The combined effect of section 3 of the Misuse of Drugs Act 1971 (“MDA”) and section 170 of the Customs and Excise Management Act 1979 (“CEMA”) is to criminalise the importation or exportation of controlled drugs. The MDA provides for a prohibition; section 170 makes it an offence fraudulently to evade prohibitions on importation or exportation either by knowingly acquiring possession of good (controlled drugs) (section 170(1)) or being knowingly concerned in any way in the evading or attempting to evade the prohibitions (section 170(2)).
Section 8 of the Psychoactive Substances Act 2016 creates two offences of importing or exporting a psychoactive substance and therefore criminal offences concerning psychoactive substances should be charged under these provisions.
Unless there is clear evidence that the accused was involved in the actual importation of the drugs and therefore was demonstrably in ‘possession’ of the drugs, the better course may be to charge these offences under section 170(2) rather than (1) of CEMA.
A key word in section 170(2) is ‘attempt’. There are cases in which drugs (or other prohibited items) are intercepted by law enforcement agencies. They will substitute the package with a ‘dummy package’ and allow that dummy package to be delivered. The offence is nonetheless complete because the suspect attempted to evade the prohibition. It is no defence that the accused did not receive the parcel or received substituted contents. The offence was already completed at the time the substitution took place.
To be ‘knowingly concerned’ under section 170(2) it is not necessary for the accused to have taken steps to bring about the importation of the offending item. Instead, the offence covers circumstances where a person is prepared to assist in a fraudulent evasion if certain circumstances arise: AG’s Ref (No. 1 of 1998) 163 JP 390; R v Neal (1983) 77 Cr App R 283. The prosecution must prove that the accused knew that the goods (whatever they were) were prohibited from importation. It is not enough for the prosecution to show merely that the accused was being kept informed of what others were doing: there must be evidence that the accused played, or held themselves available to play, some role in furtherance of the smuggling venture.
In accordance with R v Shivpuri [1987] AC 1 HL the prosecution does not have to prove that the accused knew:
provided they knew that a prohibition applied to the goods concerned.
In cases where the accused was plainly concerned in the supply of controlled drugs, but a trial issue may be their knowledge of/involvement in importation, further or alternative MDA charges should be considered.
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:
Prosecutors should charge:
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.
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."
"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 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.
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.
See Legal Guidance on Human Trafficking, Smuggling and Slavery, in particular Child Trafficking.
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:
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:
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).
Preparing of opium for smoking, or smoking of prepared opium will be encountered rarely, but it is an offence for a person to:
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.
Two summary only offences are created in section 9A of the Act. It is an offence:
Any administration of a controlled drug will not be treated is treated as unlawful where:
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.
Section 79 of the Serious Crime Act 2015 inserts section 40CB into the Prison Act 1952, which provides an offence of throwing any article or substance into a prison without authorisation. The offence came into force on 10 November 2015.
The offence would not apply where the article or substance was one specified in List A of the Prison Act, which includes controlled drugs. It is already an offence for a person without authorisation to convey controlled drugs into a prison (which includes throwing them into prison), (sections 40A to 40C of the Prison Act 1952).
Articles or substances that may be caught by the offence include new psychoactive substances not already controlled under the Misuse of Drugs Act 1971 and other non-controlled drugs frequently abused by prisoners. (See guidance about Psychoactive Substances).
The offence is only committed where a person throws any article or substance into a prison 'without authorisation', (section 40CB(1) Prison Act 1952).
Section 40CB(3) provides for a defence where the accused reasonably believes that she / he had authorisation to throw the article or substance into prison or that there was an overriding public interest which justified the act.
The maximum penalty on summary conviction of the offence is six months' imprisonment. The maximum penalty on conviction on indictment is two years' imprisonment.
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:
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.
Police Officers and Prosecutors should always have in mind the following general principles when selecting the appropriate charge(s):
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.
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.
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.
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.
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:
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.
Law enforcement officers have the power to seize and detain any substances suspected of being intended for use as a drug-cutting agent. They are able to do this in two ways: while legally on premises (for example at a port), or with a drug-cutting agents warrant.
Law enforcement agencies are able to apply for a warrant to search premises for suspected drug-cutting agents, (s.52 Serious Crime Act 2015). It is a criminal offence to obstruct an officer in executing the warrant, (s.54(4) Serious Crime Act 2015). A person guilty of an offence under s.54(4) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
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:
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 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:
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.).
Awareness of the sentencing framework will often be of help when assessing the appropriate charge.
The Sentencing Council has published the revised sentencing guidelines for sentencing offenders convicted of drugs offences. The new guidelines which come into effect on 1 April 2021, update the guidelines published in 2012 and apply to adult offenders.
The Sentencing Council has published guidelines about Producing a Psychoactive Substance (section 4 Psychoactive Substances Act 2016) and Supplying, or offering to supply, a psychoactive substance / Possession of a psychoactive substance with intent to supply. The guidelines are effective from 1 April 2021.
From the 1 June 2015, Section 51 of the Serious Crime Act 2015 extends injunctions to prevent gang-related violence to include gang-related drug-dealing activity. Revised Statutory Guidance has been published about injunctions to prevent gang-related violence and gang-related drug dealing, as well as a Practitioners' Guide.
For the purpose of section 51 injunctions, 'drug dealing activity' means the unlawful production, supply, importation or exploitation of a controlled drug. 'Production', 'supply', and 'controlled drug' have the meanings given by section 37(1) of the Misuse of Drugs Act 1971.
An application for an injunction may be made by the chief officer of police for a police area; the chief constable of the British Transport Police Force; or a local authority. It is good practice for the applicant authority to consult the CPS to discuss any potential parallel criminal proceedings.
Failure to comply with an injunction to prevent gang-related violence and drug-dealing activity is not a criminal offence. It is dealt with by way of civil contempt of court by the applicant authority. If the respondent's behaviour when failing to comply constitutes a criminal offence, it should be dealt with as such and the applicant should work with the CPS and police (if a local authority) to pursue criminal proceedings.
The Ancillary Orders Toolkit provides further detail.
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.
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.
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.
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.
Misuse of Drugs Act 1971, s5(2).
Triable either way
Class A
Maximum: 7 years’ custody
Offence range: Fine – 51 weeks’ custody
Class B
Maximum: 5 years’ custody
Offence range: Discharge – 26 weeks’ custody
Class C
Maximum: 2 years’ custody
Offence range: Discharge – Medium community order
Supplying or offering to supply a controlled drug, Misuse of Drugs Act 1971 (section 4(3))
Possession of a controlled drug with intent to supply it to another, Misuse of Drugs Act 1971 (section 5(3))
Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment.
Class A
Maximum: Life imprisonment
Offence range: High level community order – 16 years’ custody
Class B
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band B fine – 10 years’ custody
Class C
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band A – 8 years’ custody.
This offence is subject to statutory minimum sentencing provisions.
Importing or exporting a controlled drug is an either way offence. The maximum penalties are set out in Schedule 1 of CEMA 1979.
Production of a controlled drug, Misuse of Drugs Act 1971 (section 4(2)(a) or (b))
Cultivation of cannabis plant, Misuse of Drugs Act 1971 (section 6(2))
Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment.
Production of a controlled drug
Class A
Maximum: Life imprisonment
Offence range: High level community order – 16 years’ custody
Class B
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band B fine – 10 years’ custody
Class C
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Discharge – 8 years’ custody
Cultivation of cannabis plant
Maximum: 14 years’ custody
Offence range: Band A fine – 8 years’ custody
This offence is subject to statutory minimum sentencing provisions.
Supplying or offering to supply a controlled drug, Misuse of Drugs Act 1971 (section 4(3))
Possession of a controlled drug with intent to supply it to another, Misuse of Drugs Act 1971 (section 5(3))
Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment.
Class A
Maximum: Life imprisonment
Offence range: High level community order – 16 years’ custody
Class B
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band B fine – 10 years’ custody
Class C
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Band A – 8 years’ custody
This offence is subject to statutory minimum sentencing provisions.
Misuse of Drugs Act 1971, s.8
Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment.
Class A
Maximum: 14 years’ custody
Offence range: Low level community order – 4 years’ custody
Class B
Maximum: 14 years’ custody
Offence range: Band A fine – 18 months’ custody
Class C
Maximum: 14 years’ custody
Offence range: Discharge – 26 weeks’ custody
This offence is subject to statutory minimum sentencing provisions.
Misuse of Drugs Act 1971, s.3; Customs and Excise Management Act 1979, s.170(2).
Triable either way unless the defendant could receive the minimum sentence of seven years for a third drug trafficking offence under section 313 of the Sentencing Code in which case the offence is triable only on indictment.
Class A
Maximum: Life imprisonment
Offence range: Band A fine – 16 years’ custody
Class B
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Discharge – 10 years’ custody
Class C
Maximum: 14 years’ custody and/ or unlimited fine
Offence range: Discharge – 8 years’ custody
This offence is subject to statutory minimum sentencing provisions.
Supplying, or offering to supply, a psychoactive substance, Psychoactive Substances Act 2016 (sections 5(1) or 5(2))
Possession of psychoactive substance with intent to supply, Psychoactive Substances Act 2016 (section 7(1))
Maximum: 7 years’ custody
Offence range: Band B Fine – 6 years’ custody
Psychoactive Substances Act 2016, s.4
Triable either way
Maximum: 7 years’ custody
Offence range: Band B Fine – 6 years’ custody
Psychoactive Substances Act 2016, s.8
Triable either way
Maximum: 7 years’ custody
Offence range: Discharge – 6 years’ custody
Refer to chapter two of the Proceeds of Crime guidance, and Referral of Cases guidance, elsewhere in the Legal Guidance.
The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.
This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.