Possession of controlled drugs

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Possession of controlled drugs
  • Elements of the offence of possession of controlled drugs
  • Possession
  • Joint possession
  • Controlled drug
  • Statutory defences to possession of a controlled drug
  • Sentencing

Possession of controlled drugs

Elements of the offence of possession of controlled drugs

It is an offence for a person to have a controlled drug in their possession.

The prosecution has to prove, to the criminal standard (see Practice Note: Burden and standard of proof in criminal proceedings), that:

  1. the substance in question is a controlled drug

  2. it was in the defendant’s custody or control, and

  3. the defendant knew, or could have reasonably known, of the existence of the drug. See R v Lewis (1988) 87 Cr. App Rep 270 not reported by LexisNexis®

Possession of a controlled drug is an offence that is triable either way. It can be tried in either the magistrates’ court or the Crown Court.

Possession

The Misuse of Drugs Act 1971 (MDA 1971), s 37(3) expands the meaning of possession to include items that are in the custody of another but are subject to the defendant’s control. Therefore, in order to establish possession the prosecution must prove that the drug was either in the custody of the defendant or under their control. The prosecution does not have to prove the defendant knew that they were in possession of any particular type of controlled drug (R v Bett). Ignorance of, or mistake as to the quality of, the substance in question does not prevent the defendant being in possession of it, provided that the substance

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