Misuse of Drugs Act 1971

Legitimate Possession

There are two categories of person who may legitimately possess a controlled drug: those who are specifically empowered to do so by regulations made under the Misuse of Drugs Act 1971, and those who are found in possession of the drug but are not proved to have the necessary mens rea for the offence of unlawful possession or who satisfy the conditions of the statutory defence that they took possession of a known or suspected controlled drug either (1) in order to prevent another committing an offence and that as soon as possible they took all reasonable steps to destroy it or deliver it into the custody of a person lawfully entitled to take custody of it, or (2) in order to deliver it into the custody of such a person and that as soon as possible they took all reasonable steps to do so.

The persons who are specifically authorised to have controlled drugs in their possession are listed in the Misuse of Drugs Regulations 1985, under which the production, possession and supply of controlled drugs is authorised under a licence granted by the Secretary of State; and persons acting in an official capacity who may be required in the course of their duty to be in possession of a controlled drug are permitted to have such possession. These persons include police officers, carriers, Post Office employees, customs and excise officers, laboratory workers involved in forensic examination, and those engaged in conveying the drug to any person authorised to have it in his possession. The production and supply of controlled drugs by pharmacists, medical practitioners and others with a legitimate professional interest is also authorised. Special provisions apply to matrons and sisters, or their modern successors, in hospitals and nursing homes, although no matron or acting matron may supply controlled drugs if the hospital or nursing home has a pharmacist responsible for the supply or dispensing of medicines, and no sister or acting sister in charge of a ward, theatre or other department may supply controlled drugs otherwise than under the direction of a doctor or a dentist. Authority to supply controlled drugs in a private nursing home requires special written authority from the Home Secretary.

Knowledge of the Nature of the Substance

Possession requires that the accused should know not only of the existence of the substance (or, in a container case, of the likely existence of a substance) but also that he should know that the substance over which he has control is a controlled drug. Earlier cases involved the conviction of persons who had no knowledge of the fact that the substance in question was a controlled drug, thus making the possession offences, offences of strict liability. The unacceptability of this state of affairs resulted in the subsequent provisions of the Misuse of Drugs Act 1971, the aim of which were to provide a defence of mistake of fact in such circumstances.

Section 28 of the 1971 Act, which applies to certain named offences provided for by the Act, and which does not exclude other competent defences, states in subsection (2) that

‘… in any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged’.

Where the accused knew that he was in possession of a controlled drug but where he is able to prove that he did not know that it was the particular controlled drug alleged by the prosecution, conviction of possession of the drug alleged is competent. However, a case in which the accused thought that he was in possession of controlled drug X but in reality is found to be in possession of controlled drug Y may result in acquittal if he would have been entitled to be in possession of drug X but not of drug Y6. The onus of proof in this latter case is placed clearly on the accused. He is also entitled to be acquitted if he proves that he neither believed nor suspected nor had reason to suspect that the substance was a controlled drug.

The intention behind the incorporation within the 1971 Act of the section 28 defences was undoubtedly to avoid the imposition of strict liability, but it has been pointed out by the courts and by commentators that section 28(2) at least is quite otiose. In McKenzie v Skeen Lord Justice-General Emslie observed that the 1971 Act did not in any way change the meaning of the concept of possession and consequently the Crown still has to prove all that it had been obliged in the past to prove in order for possession to be established. Consequently, the requirement that knowledge and possession be proved by the prosecution remains and there is therefore no need for an accused to rely on section 28.

The Crown also bears the onus in respect of analysis of the drug in question. In McCallum v McKay, the High Court of Justiciary found that two witnesses who had in the past purchased drugs from the accused, could provide evidence of the identity of the drug. According to the judgement in Salmon v HM Advocate 10, section 28(3) can apply only where there was a mistake as to the identity of a particular controlled drug, and not where the accused did not believe that, in this case a bag, contained controlled drugs at all. Believing that the item in question was controlled drug X rather than controlled drug Y will not be exculpatory, while belief that no controlled drug was involved at all may allow the accused a defence under section 28(2).