Controlled Drugs | Offences, Restrictions and Penalties

Drug offences cover a wide range of criminal activity and can vary considerably in severity. At the less serious end of the spectrum, allegations may involve the possession of a controlled drug or substance for personal use. More serious cases often concern large-scale operations involving the production, distribution or supply of substantial quantities of illegal drugs.

In response to the increase in offences committed under the influence of drugs, The Misuse of Drugs Act 1971 (‘the Act’) was introduced and it remains the principal controlling legislation.

Schedule 1 of the Act introduced the Advisory Council on the Misuse of Drugs (‘the Council’), which was tasked with keeping under review the situation in the UK relating to drugs which have, or are likely to have, harmful effects to the extent that they constitute a social problem.

The Act is supported by The Misuse of Drugs Regulations 2001 (‘the Regulations’), which set out Schedules of controlled drugs, authorised activities, record-keeping requirements, and safe custody obligations.

Helen Holder of KANGS outlines essential elements of both the Act and the Regulations.

The Misuse of Drugs Act 1971

What Are Controlled Drugs?

Schedule 2 of the Act classifies controlled drugs according to their potential for harm, into three categories:

Part 1, Class A Drugs include:

• coca leaf,
• cocaine,
• ecstasy,
• fentanyl,
• heroin,
• morphine,
• opium.

Part 2, Class B Drugs include:

• amphetamine,
• cannabis derivatives and resin,
• codeine-based preparations,
• ketamine,
• phenmetrazine.

Part 3, Class C Drugs include:

• diazepam,
• khat,
• methandriol,
• nitrous oxide,
• testosterone.

Offences Created by the Act

Importation and Exportation of Controlled Drugs.

This section provides that, subject to limited exceptions:

• the importation of a controlled drug and
• the exportation of a controlled drug,

are prohibited.

This section is strengthened by s.170 (1) & (2) of the Customs and Excise Management Act 1979 which makes it an offence to fraudulently evade prohibitions on importation or exportation, either by knowingly acquiring possession of controlled goods, or being knowingly concerned in any way in the evading or attempting to evade the prohibitions.

Production and Supply of Controlled Drugs.

Subject to limited exceptions, it is not lawful for a person to:

• produce a controlled drug,
• supply or offer to supply a controlled drug to another,
• be concerned in the production of such a drug by another,
• be concerned in the supply of such a drug by another,
• be concerned in the making to another of an offer to supply such a drug.

The offence of production involves some identifiable participation in the process of producing a controlled drug, by manufacture, cultivation, or any other method.

The offence of being concerned in the production of a controlled drug requires evidence:

• that a controlled drug was produced and
• of some link between the suspect and the production process by, for example, providing suitable premises or equipment and
• that the suspect knew that a controlled drug was being produced.

Possession of Controlled Drugs.

The offence of possession of a controlled drug is committed when a person is unlawfully in physical possession or in control of any specified substance or product, 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.

Subject to specified exceptions:

• it is an offence for a person to have a controlled drug in his possession.
• 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.

The Misuse of Drugs Regulations 2001

The Regulations serve to extend, amend and generally support many aspects of the Act in a number of ways including the following.

Protection from Prosecution.

As will be seen from the above, the Act imposed a total prohibition on the possession, production and supply, import or export of controlled drugs. However, various classes of people conducting legitimate activity were, by definition, placed in the situation whereby they were engaging in a prohibited act, e.g., a police officer taking possession of drugs at a crime scene.

Accordingly, the Regulations created exemptions to the offences to allow professionals, such as the police and healthcare professional to conduct their business without the risk of prosecution. For example, Regs. 6(6) and 6(7) permit a police constable, whilst acting in the course of his duty, to lawfully have any controlled drug in his possession.

Imposition of administrative security regulations:

S.18 Marking of bottles and other containers,

S.19 Record-keeping requirements in respect of drugs in Schedules 1 and 2,

S.20 Requirements as to registers,

S.21 Record-keeping requirements drugs,

S.23 Preservation of registers, books and other documents,

S.24 Preservation of records relating to drugs in Schedules 3 and 5.

Scheduling of Drugs According to Potential Harm

The Regulations provide a further layer of control by dividing controlled drugs into five schedules. Substances are scheduled by reference to their recognised medical use and their potential for harm. Generally, drugs placed lower within the schedules are subject to fewer controls.

Schedule 1.
Deals with drugs which have no recognised medicinal use and possession or production requires a Home Office licence which is only granted to those engaged in research. They include hallucinogenic drugs such as coca leaf.

These drugs are as close as is possible to being completely prohibited in the UK.

Schedule 2.
These are drugs with a wide chemical use but a high risk of dependency liability such as opiates, cocaine and amphetamines.

They must be stored in a locked receptacle which can only be opened by an approved person and be strictly registered.

Schedule 3.
These include a small number of minor stimulant drugs less likely to be misused than those falling within Schedule 2 or are lass harmful if misused. Most are exempt from safe custody requirements except temazepam, flunitrazepam, buprenorphine and diethylpropion.

Schedule 4.
Drugs with recognised medical use and lower levels of control, often including certain prescription medicines

Schedule 5.
Preparations containing low quantities of certain controlled drugs, which are subject to the least restrictive controls e.g., codeine, pholcodine and morphine which are exempt from control when present in medicinal products of low strength.

Potential Penalties Upon Conviction

The range of penalties which may be imposed upon conviction for drug offences vary depending upon the class of drug involved, the nature of the offence and the quantity of drugs produced or supplied. Penalties may also depend upon the presence of any aggravating issues, such as the involvement of an organised crime group or featuring offences of assault or violence.

Drug related offences are taken extremely seriously by the courts, with the most serious offences regularly attracting life imprisonment.

Even upon conviction for simple possession without any aggravating circumstances a court may impose the following maximum sentences:

• Class A Drugs: Seven years’ custody plus a fine.
• Class B Drugs: Five years’ custody plus a fine.
• Class C Drugs: Two years’ custody plus a fine.

In addition to the comprehensive range of fines and prison sentences a court may also impose a wide range of remedies, including:

• a Serious Crime Prevention Order to restrict involvement in crime by imposing conditions, such as limiting where a person may travel, who they may associate with, or requiring them to report financial information to the police.

• Confiscation proceedings pursuant to the Proceeds of Crime Act 2002 in order to recover the financial benefit obtained from criminal conduct.

• a Travel Restriction Order; when an offender has been convicted of a ‘drug trafficking offence’, 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.

• Forfeiture of anything shown to the satisfaction of the court to be related to that offence, may be forfeited and destroyed.

How Can We Assist?

As the range of penalties available to the courts demonstrates, drug offences can carry serious consequences, including substantial financial penalties and, in some cases, imprisonment.

If you are facing allegations of involvement in drug-related offences, or have been asked to attend a police interview, it is important to seek expert legal advice at the earliest opportunity.

The team at KANGS has extensive experience advising and defending clients facing allegations of drug offences, from possession and possession with intent to supply through to cases involving the production or trafficking of controlled drugs.

You do not need to wait until you have been formally charged before seeking legal assistance. We can advise and support you from the earliest stage of an investigation, including before any charging decision is made. Our criminal defence solicitors specialise in pre-charge representations and pre-charge engagement with a view to proactively influencing any final charging decision.

We can provide legal advice and representation during a voluntary police interview and throughout any subsequent criminal proceedings.

If you require assistance, please contact our team using the details below:

Tel:       0333 370 4333

Email: info@kangssolicitors.co.uk

We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through video conferencing or telephone.

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