Possession of a controlled substance is categorised in two different ways: ‘without intent’ and ‘with intent’ to supply. 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 getting expert advice for your specific situation is vital in ensuring that you receive fair legal treatment.
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 are illegal but not all, for example tobacco, alcohol and drugs used for medicinal purposes. Illegal controlled substances fall into the following categories and include some of the following:
- 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 pockets, belongings, car or home. However, it’s not just whether you are physically holding the drugs, you are considered to be in possession if you are in control of the drug. The severity of the crime is determined by the following factors:
- Amount of drug
- History of offences, if any
- Class of substance
- Your intent to supply or not
The predominant factor, a game changer if you will, in drug possession cases is whether you are caught in possession for personal recreational use or whether the allegation is where you are accused of being in possession ‘with intent’ to supply. If you are in possession 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. 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 an investigation is carried out to determine how significant your role is. 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. But, if for example, you have a Class A drug but 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 defence.
What are the protocols for specific substances?
Class A drugs are considered the most dangerous controlled substances. With that they receive the most severe of penalties. When found in possession of Class A drugs, the police will act immediately, starting with an arrest and then questioning. Even the smallest amount warrants an arrest.
Class B and C
Some Class B and C drugs are not treated as harshly when first found, but 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, and 2 years for khat.
Cannabis comes 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 police, then the guidance allows police officers to issue a warning. If it’s your second offence the police can issue a fixed-term fee notice and if you pay that within 21 days, there’s no criminal record.
The consequences of having psychoactive drugs—often mislabelled 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 illegalised the production, supply or offering to supply of psychoactive drugs for the effect of a “legal high.” Psychoactive drugs continue to be a mystery to most, but they are unlawful and can lead to serious penalties.
What happens when you are caught in possession of a controlled substance?
The 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, it ends there.
But if you are officially arrested, you are 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. Once charged, you may be released on bail, pending a court case and sentencing.
It is important to remember that you still have rights, i.e. 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. Either a duty solicitor, one from a named firm or of your own choice, and a phone call should 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 effected 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 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. These can be long-winded so you should enquire about it as soon as possible. Possession of a controlled substance is a very serious offence and should not be taken lightly and seeking the expert advice of a solicitor is essential.