The Drugs Offences Handbook

by Tim Moloney QC, Steven Bird, Tom Stevens, Harriet Johnson, Abigail Bright

Overview

The Drugs Offences Handbook provides a comprehensive, focused and concise analysis of the often complex evidential and litigation issues that relate to drugs cases.

The law relating to drugs has the broadest span of any specialist area within crime. Evidentially it includes the forensic examination of drugs themselves and evidence linking individuals to drugs, as well as cell site analysis, interrogation of computers and mobile telephones, police powers of search, and the utilisation of police 'expert' witnesses.

From a litigation perspective, drugs cases (together with financial crime) make up the vast majority of cases giving rise to money laundering and proceeds of crime issues. In complex supply and importation cases, the financial aspect frequently arises within the evidence as well.

Laid out in three broad sections covering Offences, Evidence and Post-conviction, The Drugs Offences Handbook provides expert guidance on key areas such as:

- Manufacture and cultivation
- Importation
- Possession and supply
- Police powers of search and seizure
- Sentencing and confiscation

With reference to all relevant legislation including the Psychoactive Substances Act 2016, the Drugs Act 2005, the Proceeds of Crime Act 2002 as well as analysis of leading cases such as R v Hussain (Shabbir), R v Green and R v Wright, The Drugs Offences Handbook is an essential resource for criminal law practitioners as well as professionals such as drugs agencies, counselling agencies and expert witnesses.

Tim Moloney QC, Tom Stevens, Paul Mason, Abigail Bright and Harriet Johnson are all members of Doughty Street Chambers.

Steven Bird is the founder and director of Birds Solicitors.

The Criminal Practice Series is a series of practical court-style guides covering a number of discrete, specialist areas. They assist users to identify cases, rules and regulations relevant to the specific topic quickly and easily. For more information please visit www.bloomsburyprofessional.com/criminal

Product Details

ISBN-13:	9781780436630
Publisher:	Bloomsbury Academic
Publication date:	01/26/2018
Series:	Criminal Practice Series
Pages:	416
Product dimensions:	6.14(w) x 9.21(h) x 0.85(d)

About the Author

Tim Moloney KC, Tom Stevens, Paul Mason, Harriet Johnson and Abigail Bright are all of Doughty Street Chambers, and Steven Bird is the founder and director of Birds Solicitors.

Table of Contents

Preface v

Table of statutes xv

Table of statutory instruments xxi

Table of EC and International Materials xxiii

Table of cases xxv

1 Manufacture And Cultivation 1

Introduction 1

Medicinal Uses Of Controlled Drugs 4

The Meanings Of 'Product' And 'Preparation' 5

Cultivation 8

Defences Available, In Principle, To Accused Persons Involved In Manufacture Or Cultivation 9

Use Of Extradition Proceedings As A Means Of Law Enforcement 12

Summary Of Key Points 13

2 Importation 15

The Offences 15

How The Offence Is Charged 17

Procedure And Sentence 18

Elements Of The Offence 20

Section 170(1) and 170(2) 20

The Actus Reus 21

The Mens Rea 25

Admissibility Issues In Importation Cases 27

The Psychoactive Substances Act 2016 29

Summary Of Key Points 31

3 Possession: Unlawful Possession, Control And Knowledge 33

Introduction 33

Unlawful Possession 34

Section 5 of the MDA 1971 34

The Ingredients Of The Offence 35

Custody And/Or Control: The Physical Element Of Possession 36

Knowledge: The Mental Element Of Possession 40

Warner and Possession 41

Mcnamara: Simplifying The Law Of Possession 43

Imputing An Intention To Possess 44

R v Lambert 46

Mistake As To The Drug Possessed 47

Possession And Memory 47

The Relevance Of Quantity To Possession 48

Where Drugs Have Been Consumed 50

Summary Of Key Points 51

4 Possession: Prohibited Drugs And Defences 53

Proving The Drug Is Prohibited 53

The Legislative Provisions: Section 2 And Schedule 2 53

Temporary Class Drugs Orders 54

The Provisions Of Section 2a And 2b 55

Possession Of A Temporary Class Drug Is Not An Offence 55

The Burden Of Proof: Forensic Analysis 57

Cases Involving Cocaine 58

Forensic Evidence Is Not Always Required 59

Admissions 60

Defences 62

Section 5(4): Lawful Intention 62

Section 28: Lack Of Knowledge 63

The Parameters Of Section 28 (2)-(3) 64

Section 28 And The Burden Of Proof 66

'To Prove': Not A Legal Burden But An Evidential Burden 68

Self-induced Intoxication And The Objective Limb Of A Section 28 Defence 70

Section 28 Does Not Apply To Those Charged With Conspiracy 71

Lawful Possession 71

Section 7 of the MDA 1971 71

Self-Treatment 72

The Failed Defence Of Medical Necessity 73

Section 10 Of The Misuse Of Drugs Act 1971 76

The Misuse Of Drugs Regulations 76

The Psychoactive Substances Act 2016 77

The Meaning Of Psychoactive Substance 78

The Offences In Brief Overview 78

Simple Possession Is Not An Offence 81

Exemptions 82

Summary Of Key Points 83

5 Supply And Being Concerned In Supply 85

The Offences 85

A Brief Overview 86

The Meaning Of Supply 87

A Physical Transfer Of Control Is Required 87

Issuing a Prescription is not an Act of Supply 88

The Supply Must Be To The Benefit Of/For The Purposes Of The Recipient 89

The Transfer Of Drugs To A Custodian Or Courier Is Not An Act Of Supply 91

A Custodian Who Returns Drugs Is Guilty Of Supplying Them 92

The Decision In Maginnis 94

Involuntary Possession And Intent To Supply 96

Territorial Restrictions On The Provisions Of The Misuse Of Drugs Act 97

Supplying Includes Distributing 99

Being in Joint Possession is no Defence 99

The Case Of Harris: Administering Is Not Supplying 101

Making An Offer To Supply 102

Scenario 1 103

Scenario 2 103

Scenario 3 104

An Offer To Supply Remains Until It Is Either Resiled From Or Has Been Completed 107

An Offer Of Consumption Is An Offer To Supply 108

Being Concerned In The Supply/Offer To Supply Drugs 109

A Broad Construction 110

The Hughes Definition 110

Is Proof Of An Actual Supply Of Controlled Drugs Required To Be Found Guilty Of Being Concerned In It? 112

Supply To 'Another' 114

Summary Of Key Points 115

6 Possession With Intent To Supply 117

The Offence 117

Overview 117

An intention To Supply Does Not Require An Intention To Make Financial Gain 118

An Intention To Supply A Different Drug To The One Charged Affords No Defence 119

An Intention To Supply Need Not Be An Intention To Supply Immediately 120

Section 5(3) And Possessing Drugs Not Ready For Harvest 121

Motive Is Irrelevant 123

Proving Intention 124

The Quantity Of Drugs Possessed 124

Expert Evidence On Consumption Patterns 125

The Admissibility Of Evidence Of An Extravagant Lifestyle/Possession of Money 128

Directing the Jury 131

Where A Guilty Plea To Possession Is Offered 132

Aggravated Supply 133

Lawful Supply 135

Summary Of Key Points 136

7 Occupiers Of Premises 137

Overview 137

Being The Occupier Or Concerned In The Management Of The Premises 137

Permitting Premises To Be Used For Drug Offending 138

Liability Pursuant To Section 8 Of The 1971 Act 139

What Constitutes Premises, In Section 8? 141

Knowledge 141

Investigatory Powers; Entry, Search And Seizure 141

Enlarged Investigatory Powers: The Psychoactive Substances Act 2016 143

Prohibition Orders: The 2016 Act 146

Anti-Social Behaviour (Interim) Orders 147

Summary Of Key Points 147

8 Conspiracy And Cross-Jurisdictional Offences 149

Introduction 149

The Indictment 150

What Is An Agreement? 152

Qualified Agreements 154

Parties To The Agreement 155

Criminal Conduct 157

Mens Rea Of Conspiracy 160

Impossibility 163

Proving Agreement 164

Acquittal of the Co-Conspirator 165

Jurisdiction 166

Co-Conspirator Based Abroad 166

Domestic Conspiracies to Commit an Offence Abroad 167

Conspiracy Formed Abroad to Commit an Offence in England and Wales 167

Conspiracy Formed Abroad to Commit an Offence Abroad 169

Summary Of Key Points 169

9 Search And Seizure 171

Powers Of Search And Seizure 171

Obstruction Of Searches 175

Return Of Seized Property 176

Forfeiture And Destruction Of Seized Property 179

Summary Of Key Points 180

10 Forensic And Covert Evidence 183

Expert Forensic Evidence 183

Forensic Analysis Of Drugs And Drug Traces 184

Covert Evidence 188

Impact Of Non-Compliance 190

Admissibilty Of Covert Evidence 192

Covert Policing And Agents Provocateurs 193

Summary Of Key Points 195

11 Sentencing For Drugs Offences 197

The Sentence Guidelines 197

Applying The Guidelines 198

Culpability 199

Harm 199

Conspiracy Offences 200

Importation 201

Supplying Or Offering To Supply A Drug 205

Class A Drugs 205

Class B or Class C drugs 208

Prevalence of Supply 209

Cuckoo-ing 210

Production And/Or Cultivation 212

Permitting Premises To Be Used For Consumption Of A Drug 216

Possession Of A Controlled Drug 216

Sentences For Servicemen And Women 217

Psychoactive Substances Act 2016 218

Ancillary Orders 219

Confiscation 219

Forfeiture 219

Summary Of Key Points 221

12 Restraint And Confiscation 223

Introduction 223

Restraint Orders 224

Confiscation Proceedings 228

Instigation of confiscation proceedings 228

Procedure 230

Provision of Information by Defendant: section 18 230

Prosecutor's Statement of Information: section 16 231

Defendant's response to Statement of Information: section 17 232

The Determinations To Be Made By The Court 233

Criminal Lifestyle 233

Criminal conduct 235

Benefit 237

Couriers and custodians 239

The Corporate veil 240

Joint benefit 241

Value 241

Assumptions as to benefit 242

Recoverable Amount 243

Available Amount 245

Determination of Extent of Defendant's Interest in Property 246

Legal aid contributions from Capital 248

Making The Order 249

Time to pay 250

Interest on unpaid sums 251

Period in default 251

Variation Of An Order 252

Application by the defendant 252

Applications by the prosecution 253

Enforcement 253

Public Funding For Confiscation Proceedings 254

Summary Of Key Points 255

Appendix A Extracts from MDA 1971 257

Appendix B Extracts from PSA 2016 289

Appendix C Extracts from PACE 1984 305

Appendix D Drug Offences Definitive Guideline 333

Index 367