Possession of a controlled substance is categorised in two different ways:
- ‘Possession without intent’
- ‘Possession with intent’ to supply (PWITS)
Both are criminal offences, but each has its own set of regulations and penalties. Regardless of the category, you should remember that every drug case is different and seeking expert advice for your specific situation is vital to ensure you receive fair legal treatment from the outset.
If you’re aged under 18 and found to be in possession of a controlled substance, the police are legally entitled to inform your parents, guardians or legal carers.
What is a controlled substance?
A controlled substance is a drug that can have a harmful effect on a person’s health and welfare. Most – but not all – controlled substances are illegal.
Tobacco, alcohol and drugs used for medicinal purposes are classified as legal controlled substances. Illegal controlled substances fall into the following categories and include:
- Class A – crack cocaine, cocaine, ecstasy, heroin, LSD, magic mushrooms, methadone and methamphetamine
- Class B – speed, cannabis, codeine, ketamine and some amphetamines
- Class C – anabolic steroids, khat and GHB
What is classified as ‘possession of a controlled substance’?
Possession of a controlled substance is when someone is found holding drugs, whether it be in your pocket, belongings, car or home. However, the offence does not just occur if you are found to be physically holding the drugs – you are considered to be in possession if you are in control of the drug.
The severity of the crime of possessing a controlled substance is determined by the following factors:
- The amount of the drug
- Previous history of offences, if any
- The class of the substance
- Your intent to supply or not
The predominant factor in drug possession cases is whether you are caught in possession for personal recreational use or whether the allegation concerns you being accused of being in possession of a controlled substance ‘with intent’ to supply. If you are in possession of a controlled substance for recreational use, the amount is small and it’s your first offence, there is a reasonable chance that you will receive either a warning or caution rather than a custodial sentence.
If there is a history of drug use, these cautions normally have a conditional clause of drug treatment, but not in all cases. If you’re arrested or under suspicion of being in possession with intent to supply a controlled substance, an investigation is carried out to determine the significance of your role. This helps to determine a suitable level of punishment. The range of sentencing options and types of punishment vary enormously depending on the class of drugs and quantity and what role is attributed to the individual concerned.
There are some cases where individuals are unaware they are holding drugs. If you had no idea that there were drugs in a jacket that you had been given to wear, your lack of knowledge would mean that for the purposes of the law, you would not be considered to be in possession of those drugs.
Of course, this explanation may not be believed and every case is considered on its merits. If, for example, you have a Class A drug in your possession but you believe it to be a Class C drug, you are still in possession of the controlled drug even though you may have been mistaken as to its legal class or characteristics. It’s still a punishable offence and pleading ignorance would not be a valid defence.
What are the protocols for specific controlled substances?
- Class A drugs
Class A drugs are considered the most dangerous controlled substances and, as such, they receive the most severe of penalties. If you are found in possession of Class A drugs, the police will act immediately, starting with an arrest and then questioning. Even the smallest amount of Class A drugs warrants an arrest.
- Class B and C drugs
Some Class B and C drugs are not treated as harshly if you are found in possession, although they do have their own severe punishments. For example if you are found in possession of a large amount of cannabis, it is punishable by a maximum of 5 years’ imprisonment. Possession of khat is punishable by a sentence of and 2 years’ imprisonment.
- Psychoactive drugs
The consequences of taking psychoactive drugs – often labelled as ‘legal highs’ – are also often misunderstood. They provide the effects of stimulants, sedatives and hallucinogens and can be just as dangerous as Class A drugs.
The Psychoactive Substances Act 2016 made the production, supply or offering to supply of psychoactive drugs for the effect of a ‘legal high’ illegal. Possession of psychoactive drugs is unlawful and can lead to serious penalties.
Possession of cannabis
Cannabis is classified under a discretionary warning scheme. If you’re caught in possession of cannabis and it’s your first offence, it’s a small amount and you are cooperative with the police, then the guidance allows police officers to issue a warning, although they are also able to issue an immediate fine of £90.
If it’s your second offence the police can issue a fixed-term fine and if you pay that within 21 days, you will not be faced with a criminal record.
What happens when you are caught in possession of a controlled substance?
The controlled substance in question is first seized and tested. At the end of the case it will be destroyed. If you are issued with a warning or caution, the investigation will end there.
If you are officially arrested, you will be booked in at the police station and kept for questioning. After questioning, you are either be sent away with a formal caution or charged with possession of a controlled substance. Once charged, you may be released on bail, pending a court case and sentencing.
What are your rights if you are caught in possession of a controlled substance?
If you are caught in possession of a controlled substance, it is important to remember that you still have rights, including the right to consult with a solicitor. After you’ve been booked in at the police station, you must be given the choice to speak with a solicitor, free of charge. This will either be a duty solicitor, or a solicitor from a legal firm or of your own choice. A phone call should also be made on your behalf to notify someone of your arrest.
Some of these rights can be delayed in certain rare cases, where the police have reason to believe that an investigation may be adversely affected if someone is aware of that person’s arrest. This sometimes arises in serious drug cases, where the police have reason to think that evidence may be destroyed if others become aware of that person’s arrest or the nature of an ongoing investigation.
If you are under the age of 18, an appropriate adult must be present during police questioning. The person can be a family member, social worker or friend over the age of 18.
It’s essential that you seek the drug legal advice of your solicitor to ensure the best possible result for your case.
If you have been arrested and found in possession of a controlled substance, then you should seek legal assistance, particularly if you have been given a court date. All cases are different and require their own individual process. Possession of a controlled substance is a serious offence and should not be taken lightly. Seeking the expert advice of a solicitor is essential.
What is the charge for possession of a controlled substance?
The specific maximum penalties for possessing a controlled substance will depend on factors including:
- The type of drug
- The amount you are found to be in possession of
- Whether you are also producing the drug
- Whether you are also dealing the drug
As a guideline:
|Class A||Heroin, methadone, crack cocaine, cocaine, ecstasy (MDMA), LSD, magic mushrooms, methamphetamine (crystal meth)||Up to 7 years in prison, an unlimited fine or both||Up to life in prison, an unlimited fine or both|
|Class B||Cannabis, codeine, amphetamines, barbiturates, ketamine, methylphenidate (Ritalin), synthetic cannabinoids, synthetic cathinones (such as mephedrone and methoxetamine)||Up to 5 years in prison, an unlimited fine or both||Up to 14 years in prison, an unlimited fine or both|
|Class C||Anabolic steroids, benzodiazepines (such as diazepam), GHB, GBL, piperazines (BZP), khat||Up to 2 years in prison, an unlimited fine or both.
Is not an offence to possess anabolic steroids for personal use.
|Up to 14 years in prison, an unlimited fine or both|
|Temporary Class||Some methylphenidate substances (such as ethylphenidate, 3,4-dichloromethylphenidate (3,4-DCMP), methylnaphthidate (HDMP-28), isopropylphenidate (IPP or IPPD), 4-methylmethylphenidate, ethylnaphthidate, propylphenidate) and their simple derivatives||None, but the police can remove a suspected temporary class drug||Up to 14 years in prison, an unlimited fine or both|